As filed with the Securities and Exchange Commission on February 3, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARRIVENT BIOPHARMA, 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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86-3336099
(I.R.S. Employer
Identification No.)
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18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
(628) 277-4836
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Zhengbin (Bing) Yao, Ph.D.
Chief Executive Officer
ArriVent BioPharma, Inc.
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
(628) 277-4836
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
John T. Rudy, Esq.
Matthew T. Simpson, Esq.
Nishant M. Dharia, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
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.
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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. ☐
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus which covers the offering, issuance and sale by us of the securities identified below from time to time in one or more offerings; and
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a sales agreement prospectus supplement covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $250,000,000 of our common stock that may be issued and sold from time to time under the Open Market Sale AgreementSM (the sales agreement) with Jefferies LLC.
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the sales agreement are specified in the sales agreement prospectus supplement. The specific terms of any other securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus supplement immediately follows the base prospectus. The $250,000,000 of common stock that may be offered, issued and sold under the sales agreement prospectus supplement is included in the offering of the securities that may be offered, issued and sold by us under the base prospectus.
PROSPECTUS
ArriVent BioPharma, Inc.
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
We may offer and sell securities from time to time in one or more offerings. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. This prospectus will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering, any combination of the securities described in this prospectus, either individually or in units. We may also offer common stock or preferred stock upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for the preferred stock; or common stock, preferred stock or debt securities upon the exercise of warrants or rights.
This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide you with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement, carefully before you invest.
Our securities may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is listed on The Nasdaq Global Market (Nasdaq), under the symbol “AVBP.” On January 30, 2025, the last reported sale price of our common stock was $29.09 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on Nasdaq or any securities market or other securities exchange of the securities covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities, where applicable.
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described on page 3 of this prospectus under the caption “Risk Factors.” We may include specific risk factors in supplements to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 3, 2025.
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TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the SEC), as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the Securities Act), utilizing an automatic “shelf” registration process. Under this shelf registration process, we may from time to time offer shares of our common stock and preferred stock, various series of debt securities and/or warrants or rights to purchase any of such securities described in this prospectus, either individually or in units, in one or more offerings, at prices and on terms to be set forth in one or more supplements to this prospectus at the time of an offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
This prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits and the prospectus supplement, as applicable. The prospectus supplement or any applicable free writing prospectus may also add, update or change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements, any applicable free writing prospectuses and the documents incorporated by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, any applicable free writing prospectus, the information and documents incorporated herein by reference and the additional information under the headings “Where You Can Find More Information” and “Incorporation of Documents by Reference” before making an investment decision.
You should rely only on the information provided or incorporated by reference in this prospectus, any prospectus supplement or any free writing prospectuses prepared by or on our behalf or to which we have referred you. We have not authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus, any prospectus supplement or any applicable free writing prospectus is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.
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 in this prospectus or any prospectus supplement were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such 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.
This prospectus may not be used to consummate sales of our securities unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless the context otherwise requires, “ArriVent,” “the Company,” “we,” “us,” “our” and similar terms refer to ArriVent BioPharma, Inc. and its subsidiaries.
PROSPECTUS SUMMARY
The following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire prospectus, including the more detailed financial statements, notes to the financial statements and other information incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in this prospectus, in any prospectus supplements and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Overview
We are a clinical-stage biopharmaceutical company dedicated to the identification, development and commercialization of differentiated medicines to address the unmet medical needs of patients with cancers. We seek to utilize our team’s deep drug development experience to maximize the potential of our lead development candidate, firmonertinib, and advance a pipeline of novel therapeutics, such as next-generation antibody drug conjugates, through approval and commercialization in patients suffering from cancer, with an initial focus on solid tumors. Firmonertinib is currently being evaluated in multiple clinical trials across a range of epidermal growth factor receptor mutant (EGFRm) in non-small cell lung cancer (NSCLC), including a pivotal Phase 3 clinical trial in treatment naïve, or first-line, patients with locally advanced or metastatic EGFRm NSCLC with exon 20 insertion mutations. We received Breakthrough Therapy Designation for firmonertinib for this disease from the United States Food and Drug Administration (FDA) in October 2023, and Orphan Drug Designation for treatment of NSCLC with EGFRm or human epidermal growth factor receptor 2 mutations or human epidermal growth factor receptor 4 mutations in February 2024.
In 2021, we licensed from Shanghai Allist Pharmaceuticals Co. Ltd. (Allist) the right to develop and commercialize firmonertinib worldwide, with the exception of greater China, which includes mainland China, Hong Kong, Macau and Taiwan. Firmonertinib is an investigational, novel, EGFRm-selective tyrosine kinase inhibitor (TKI) that we are developing for the treatment of NSCLC patients across a broader set of EGFRm than are currently served by approved EGFR TKIs. Firmonertinib is currently only approved and commercially distributed by Allist in China as a first-line therapy to treat classical EGFRm NSCLC. The FDA has not approved firmonertinib for any use. We selected firmonertinib for global development against nonclassical, or uncommon, mutations based on preliminary reductions in tumor size observed in seven out of ten patients in first-line treatment with EGFR exon 20 insertion mutations in the ongoing Phase 1b clinical trial, the FAVOUR trial, conducted by Allist in China, and preclinical activity in EGFR P-loop and-alpha-c-helix compressing (PACC) mutations, each a subtype of uncommon mutation. In a subsequent interim data readout from the FAVOUR trial of firmonertinib in first-line patients with locally advanced or metastatic EGFRm NSCLC with exon 20 insertion mutations, 79% of patients (n=22 out of 28 patients) were observed to experience a reduction in tumor size of at least 30%. If the future clinical trial results of the FAVOUR trial are unfavorable, our clinical development plans for firmonertinib, which include conducting our global, pivotal Phase 3 FURVENT clinical trial in first-line non-squamous locally advanced or metastatic EGFRm NSCLC patients with exon 20 insertion mutations, may be adversely affected. In a separate Phase 1b interim readout from our FURTHER clinical trial evaluating first-line treatment with EGFR PACC mutations we reported in September 2024, 64% of patients (n=14 out of 22 patients) were observed to experience a reduction in tumor size of at least 30%.
Additional Information
For additional information related to our business and operations, please refer to the reports incorporated herein by reference, including our Annual Report on Form 10-K for the year ended December 31, 2023 and subsequent reports filed with the SEC, as described under the caption “Incorporation of Documents by Reference” on page 26 of this prospectus.
Our Corporate Information
We were incorporated under the laws of the State of Delaware on April 14, 2021. Our principal executive offices are located at 18 Campus Boulevard, Suite 100, Newtown Square, PA 19073, and our telephone
number is (628) 277-4836. Our website address is https://arrivent.com/. The information contained on, or that can be accessed through, our website is not and shall not be deemed to be part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our common stock.
Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), are available free of charge through the investor relations page of our internet website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
All trademarks appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’ trademarks, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or sponsorship of, us by the trademark.
This prospectus may not be used to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing in our securities involves significant risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an investment in ArriVent BioPharma, Inc. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors” included in our most recent annual report on Form 10-K, as revised or supplemented by our subsequent quarterly reports on Form 10-Q or our subsequent current reports on Form 8-K that we have filed with the SEC, all of which are incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act that relate to our future results of operations and financial position, business strategy, plans for our product candidates, planned preclinical studies and clinical trials, results of clinical trials, future research and development costs, regulatory approvals, timing and likelihood of success, as well as plans and objectives of management for future operations and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Words such as, but not limited to, “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “target,” “will,” “would,” or the negative of these words or other comparable terminology, are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed or implied by these forward-looking statements, to differ from those expressed or implied by any forward-looking statement. The sections in our periodic reports, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, entitled “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and the documents or reports incorporated by reference in this prospectus, discuss some of the factors that could contribute to these differences. These forward-looking statements include, among other things, statements about:
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the timing, progress and results of preclinical studies and clinical trials for firmonertinib or any of our other current or future product candidates, including our product development plans and strategies;
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estimates of our addressable market, market growth, future revenue, key performance indicators, expenses, capital requirements and our needs for additional financing;
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our ability to obtain funding for our operations;
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our ability to retain the continued service of our key professionals and to identify, hire and retain additional qualified professionals;
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our ability to advance product candidates into, and successfully complete, clinical trials;
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the timing or likelihood of regulatory filing and approvals;
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the commercialization of our product candidates, if approved;
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the pricing and reimbursement of our product candidates, if approved;
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the implementation of our business model, strategic plans for our business, product candidates and technology;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology;
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developments relating to our competitors and our industry;
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the accuracy of our estimates regarding expenses, capital requirements and needs for additional financing;
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our ability to source sufficient clinical product for our clinical trials and, if our product candidates are approved and commercialized, commercial product; and
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our financial performance.
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 cautionary statements in this prospectus or in the documents incorporated by reference in this prospectus, particularly in the “Risk Factors” section, that we believe could cause
actual results or events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to the section entitled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under “Risk Factors” contained in any supplements to this prospectus and in our most recent annual report on Form 10-K, as revised or supplemented by our subsequent quarterly reports on Form 10-Q or our current reports on Form 8-K, as well as any amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document is believed to be current as of the date of this document. We do not intend to update any of the forward-looking statements after the date of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus for, together with our existing cash resources, to support our activities for firmonertinib and our other pipeline programs and for working capital and other general corporate purposes. We have not determined the amounts we plan to spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Additional information on the use of net proceeds from the sale of securities covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, or interest-bearing securities.
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. The following description of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our amended and restated certificate of incorporation and our amended and restated bylaws, which are exhibits to the registration statement of which this prospectus forms a part, and by applicable law. The terms of our common stock and preferred stock may also be affected by Delaware law.
General
Our authorized capital stock consists of 200,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share, all of which is undesignated. As of September 30, 2024, there were 33,694,355 shares of our common stock issued and outstanding. As of September 30, 2024, we had approximately 59 record holders of our capital stock.
The following description of our capital stock and provisions of our amended and restated certificate of incorporation and amended and restated bylaws are summaries of material terms and provisions and are qualified by reference to our amended and restated certificate of incorporation and amended and restated bylaws, copies of which have been filed with the SEC as exhibits to the registration statement of which this prospectus is a part.
Common Stock
We are authorized to issue one class of common stock. Holders of our common stock are entitled to one vote for each share of common stock held of record for the election of directors and on all matters submitted to a vote of stockholders. Holders of our common stock are entitled to receive dividends ratably, if any, as may be declared by our board of directors out of legally available funds, subject to any preferential dividend rights of any preferred stock then outstanding. Upon our dissolution, liquidation or winding up, holders of our common stock are entitled to share ratably in our net assets legally available after the payment of all our debts and other liabilities, subject to the preferential rights of any preferred stock then outstanding. Holders of our common stock have no preemptive, subscription, redemption or conversion rights. Our outstanding shares of common stock are, and the shares offered by us in this offering will be, when issued and paid for, validly issued, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future. Except as described under the “—Certain Provisions of Delaware Law and of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws” section below, a majority vote of the holders of common stock is generally required to take action under our amended and restated certificate of incorporation and amended and restated bylaws.
Preferred Stock
The following description of our preferred stock and the description of the terms of any particular series of preferred stock that we choose to issue hereunder are not complete. These descriptions are qualified in their entirety by reference to our amended and restated certificate of incorporation and the certificate of designation relating to any series of preferred stock issued by us. The rights, preferences, privileges and restrictions of the preferred stock of each series will be fixed by the certificate of designation relating to that series.
As of September 30, 2024, there were no shares of preferred stock outstanding. Our board of directors is authorized, without action by our stockholders, to designate and issue up to an aggregate of 10,000,000 shares of preferred stock in one or more series. Our board of directors can designate the rights, preferences and privileges of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings and acquisitions and other corporate purposes could, under certain circumstances, have the effect of restricting dividends on our common stock,
diluting the voting power of our common stock, impairing the liquidation rights of our common stock, or delaying, deferring or preventing a change in control of our company, which might harm the market price of our common stock. See also the “—Certain Provisions of Delaware Law and of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws” section of this prospectus.
Our board of directors may specify the following characteristics of any preferred stock:
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the maximum number of shares;
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the designation of the shares;
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the annual dividend rate, if any, whether the dividend rate is fixed or variable, the date or dates on which dividends will accrue, the dividend payment dates, and whether dividends will be cumulative;
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the price and the terms and conditions for redemption, if any, including redemption at our option or at the option of the holders, including the time period for redemption, and any accumulated dividends or premiums;
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the liquidation preference, if any, and any accumulated dividends upon the liquidation, dissolution or winding up of ArriVent’s affairs;
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any sinking fund or similar provision, and, if so, the terms and provisions relating to the purpose and operation of the fund;
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the terms and conditions, if any, for conversion or exchange of shares of any other class or classes of our capital stock or any series of any other class or classes, or of any other series of the same class, or any other securities or assets, including the price or the rate of conversion or exchange and the method, if any, of adjustment;
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the voting rights;
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any or all other preferences and relative, participating, optional or other special rights, privileges or qualifications, limitations or restrictions; and
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any preferred stock issued will be fully paid and nonassessable upon issuance.
Amended and Restated Investors’ Rights Agreement
In connection with our Series B Preferred Stock financing in December 2022, we entered into an Amended and Restated Investors’ Rights Agreement (the Investors’ Rights Agreement), dated December 16, 2022, with certain holders of more than 5% of our outstanding capital stock, including LAV Fund VI, L.P. (together with its affiliates, LAV Funds), and VSUM VIII Holdings Limited (together with its affiliates, VSUM), as well as OrbiMed Asia Partners IV, L.P. and OrbiMed Private Investments VIII, L.P. (together with its affiliates, OrbiMed) and Sofinnova Venture Partners XI, L.P. (Sofinnova), each of which, besides VSUM and LAV Funds, is affiliated with certain of our directors and officers. Pursuant to the Investors’ Rights Agreement, these stockholders have registration rights with respect to certain issuances of our capital stock. The registration rights include the right to demand that we file a registration statement or request that their shares be covered by a registration statement that we have otherwise filed, subject, in each case, to certain exceptions.
Demand Registration Rights
The holders of a majority of registrable securities outstanding under the Investors’ Rights Agreement may require us to file a registration statement under the Securities Act on a Form S-1 at our expense, subject to certain exceptions, with an anticipated aggregate offering price, net of the offering expenses, of more than $20.0 million, in which case we will be required to effect the registration as soon as practicable, and in any event within 60 days. We are required to effect only two demand registrations pursuant to this provision of the Investors’ Rights Agreement. Any time after we are eligible to use a registration statement on Form S-3 under the Securities Act, the holders of at least 10% of our registrable securities under the Investors’ Rights Agreement may require us to file a registration statement on Form S-3 at our expense, subject to certain exceptions, with respect to the then outstanding registrable securities of such holders having an anticipated aggregate offering price, net of the offering expenses, of at least $5.0 million, in which case we will be required to effect the registration as soon as practicable, and in any event within 45 days. If we determine that it would be detrimental to us and our stockholders to effect a requested registration, we may postpone each
such registration for a period of up to 60 days; provided that we may neither invoke this right more than once in any 12-month period nor effect a registration for our own account or any other stockholder during such 60 day period.
The foregoing demand registration rights are subject to a number of additional exceptions and limitations.
Piggyback Registration Rights
If we propose to file a registration statement under the Securities Act for the purposes of a public offering of our securities, including, but not limited to, registration statements relating to a secondary offering of our securities but excluding (i) a registration statement relating to the sale or grant of securities to employees pursuant to a stock option, stock purchase, equity incentive or similar plan; (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the registrable securities; or (iv) a registration in which the only common stock being registered is common stock issuable upon conversion of debt securities that are also being registered, the holders of registrable securities are entitled to receive notice of such registration and to request that we include their registrable securities for resale in the registration statement. The underwriters of the offering will have the right to limit the number of shares to be included in such registration.
The foregoing piggyback registration rights are subject to a number of additional exceptions and limitations.
Expenses of Registration
We will pay all registration expenses along with reasonable fees and disbursements, not to exceed $50,000 of one counsel for the selling stockholders selected by the holders of a majority of the registrable securities to be registered, other than underwriting discounts and commissions, related to any demand or piggyback registration.
Indemnification
The Investors’ Rights Agreement contains customary cross-indemnification provisions pursuant to which we are obligated to indemnify the selling stockholders, in the event of misstatements or omissions in the registration statement attributable to us, and they are obligated to indemnify us for misstatements or omissions attributable to them.
Expiration of Registration Rights
The registration rights of any holder terminate upon the earliest to occur of (i) the closing of certain liquidation events and (ii) such time after closing of our initial public offering in January 2024 as Rule 144 or another similar exemption under the Securities Act is available for the sale of all such holder’s registrable securities without limitation, during a three-month period without registration.
Nasdaq Listing
Our common stock is listed on The Nasdaq Global Market under the trading symbol “AVBP.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
CERTAIN PROVISIONS OF DELAWARE LAW AND OF OUR AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION AND AMENDED AND RESTATED BYLAWS
Anti-Takeover Provisions
Some provisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws could make the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Board Composition and Filling Vacancies
In accordance with our amended and restated certificate of incorporation, our board of directors is divided into three classes serving three-year terms, with one class being elected each year. Our amended and restated certificate of incorporation also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of seventy-five percent 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 of directors, will only be able to be filled by the affirmative vote of a majority of our directors then in office, even if less than a quorum.
No Written Consent of Stockholders
Our amended and restated 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.
Meetings of Stockholders
Our amended and restated 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 amended and restated 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 amended and restated 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 or more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified in our amended and restated bylaws. These provisions may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed. These provisions may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our Company.
Amendment to Bylaws and Certificate of Incorporation
As required by the Delaware General Corporation Law, any amendment of our amended and restated certificate of incorporation must first be approved by a majority of our board of directors and, if required by law or our amended and restated certificate of incorporation, 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 stockholder action, directors, limitation of liability, exclusive jurisdiction of Delaware Courts and the amendment of our amended and restated
bylaws and amended and restated certificate of incorporation must be approved by not less than seventy-five percent of the outstanding shares entitled to vote on the amendment, and not less than seventy-five percent of the outstanding shares of each class entitled to vote thereon as a class. Our amended and restated 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 amended and restated bylaws; and may also be amended by the affirmative vote of at least seventy- five percent of the outstanding shares entitled to vote on the amendment, or, if the board of directors recommends that the stockholders approve the amendment, by the affirmative vote of the majority of the outstanding shares entitled to vote on the amendment.
Blank Check Preferred Stock
Our amended and restated certificate of incorporation provides for 10,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or 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 us or 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 amended and restated 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.
Section 203 of the Delaware General Corporation Law
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. A “business combination” includes, among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s voting stock.
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, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation 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; or
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at or after the time the stockholder became interested, the business combination was approved by the board of directors of the corporation 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 that is not owned by the interested stockholder.
A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in its amended and restated certificate of incorporation or amended and restated bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
Exclusive Jurisdiction of Certain Actions
Our amended and restated 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 (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State
of Delaware) will be the sole and exclusive forum for any state law claim for: (1) any derivative action or proceeding brought on our behalf; (2) any action or proceeding asserting a claim of breach of a fiduciary duty or other wrongdoing by any of our directors, officers, employees or agents to us or our stockholders; (3) any action or proceeding asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws (in each case, as they may be amended from time to time); (4) any action or proceeding to interpret, apply, enforce or determine the validity of our amended and restated certificate of incorporation or our amended and restated bylaws; (5) any action or proceeding as to which the Delaware General Corporation Law confers jurisdiction to the Court of Chancery of the State of Delaware; or (6) any action asserting a claim against us or any of our directors, officers or employees that is governed by the internal affairs doctrine. The choice of forum provision does not apply to any actions arising under the Exchange Act. Our amended and restated certificate of incorporation further provides that, unless we consent in writing to an alternative forum, the United States District Court for the District of Pennsylvania will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. We have chosen the United States District Court for the District of Pennsylvania as the exclusive forum for such Securities Act causes of action because our principal executive offices are located in Newtown Square, Pennsylvania. In addition, our amended and restated 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 provisions.
The choice of forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our current or former director, officer, other employee, agent, or stockholder to the Company, which may discourage such claims against us or any of our current or former director, officer, other employee, agent, or stockholder to the Company and result in increased costs for investors to bring a claim. Alternatively, if a court were to find the choice of forum provisions contained in our amended and restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, results of operations and financial condition.
Limitation of Liability and Indemnification
Our amended and restated certificate of incorporation provides that no director or officer of our company shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except for liability (1) for any breach of the director’s or officer’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) with respect to a director, under Section 174 of the Delaware General Corporation Law, and with respect to an officer, from any action by or in the right of the Registrant, or (4) for any transaction from which a director or an officer derived an improper personal benefit. In addition, our amended and restated certificate of incorporation provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors of officers, then the liability of a director or officer of our company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Our amended and restated certificate of incorporation further provides that any repeal or modification of such article by our stockholders or amendment to the Delaware General Corporation Law will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a director serving at the time of such repeal or modification.
Our amended and restated bylaws, provide that we will indemnify each of our directors and officers and, in the discretion of our board of directors, certain employees, to the fullest extent permitted by the Delaware General Corporation Law as the same may be amended (except that in the case of amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the Delaware General Corporation Law permitted us to provide prior to such the amendment) against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the director, officer or such employee or on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is or was serving as a director, officer or employee of our company, or at our request as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of our company and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. Article VII, Section 2 of our amended and restated bylaws further provides for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers and employees.
In addition, our amended and restated bylaws provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of our amended and restated certificate of incorporation or our amended and restated bylaws, agreement, vote of stockholders or otherwise. Furthermore, Article VII, Section 5 of our amended and restated bylaws authorizes us to provide insurance for our directors, officers and employees, against any liability, whether or not we would have the power to indemnify such person against such liability under the Delaware General Corporation Law or the provisions of Article VII, Section 1 of our amended and restated bylaws.
We have entered into indemnification agreements with each of our directors and our executive officers. These agreements provide that we will indemnify each of our directors and such officers to the fullest extent permitted by law and our amended and restated certificate of incorporation and our amended and restated bylaws.
We also maintain a general liability insurance policy, which covers certain liabilities of directors and officers of our company arising out of claims based on acts or omissions in their capacities as directors or officers.
The foregoing discussion of our amended and restated certificate of incorporation and our amended and restated bylaws, indemnification agreements and Delaware law is not intended to be exhaustive and is qualified in its entirety by such amended and restated certificate of incorporation, our amended and restated bylaws, indemnification agreements or law.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time, in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is a part. We use the term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will be qualified under the Trust Indenture Act of 1939 (the Trust Indenture Act) as in effect on the date of the indenture. We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be issued thereunder. Each indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement the following terms relating to a series of debt securities:
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the title or designation;
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the aggregate principal amount and any limit on the amount that may be issued;
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable;
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whether we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will be;
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the maturity date and the date or dates on which principal will be payable;
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the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place or places where payments will be payable;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness;
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a discussion of any material or special U.S. federal income tax considerations applicable to a series of debt securities;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities.
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change of Control or Highly Leveraged Transaction
The indentures do not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate.
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities protection in the event we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction results in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events of default under the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extend-ed or delayed;
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if we fail to observe or perform any other covenant set forth in the debt securities of such series or the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities, and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
No event of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding from time to time.
If an event of default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than a majority in principal amount of the outstanding
debt securities of that series may, by a notice in writing to us (and to the debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal amount of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul the acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including payments or deposits in respect of principal, premium or interest that had become due other than as a result of such acceleration). We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Subject to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of any series will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies if:
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the holder previously has given written notice to the debenture trustee of a continuing event of default with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other conflicting directions within 60 days after the notice, re-quest and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; and
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued pursuant to such indenture.
In addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of maturity;
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making the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment or waiver.
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series or in respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
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the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
In order to exercise our rights to be discharged with respect to a series, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange
or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange or in the applicable indenture, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
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.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with other securities or separately, as described in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating to the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants;
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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise, and a description of that series of our preferred stock;
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if applicable, the exercise price for our debt securities, the amount of debt securities to be received upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants may be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
Exercise of Warrants
Each warrant will entitle the holder to purchase for cash such shares of our common stock and/or our preferred stock and/or our debt securities at such exercise price as shall be in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the warrants offered thereby. Warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Upon receipt of payment and the warrant certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of our common stock and/or our preferred stock and/or our debt securities purchasable upon such exercise. If less than all of the warrants represented by such warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
Warrant Agent
The name and address of the warrant agent for any warrants we offer, if one is appointed, will be set forth in the applicable prospectus supplement.
Enforceability of Rights by Holders of Warrants
If we appoint a warrant agent, any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Outstanding Warrants
As of September 30, 2024, we had no warrants outstanding.
DESCRIPTION OF RIGHTS
General
We may issue rights to our stockholders to purchase shares of our common stock, preferred stock or the other securities described in this prospectus. We may offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise of the rights;
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the exercise price;
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the aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be separately transferred;
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the date on which the right to exercise the rights will commence, and the date on which the right to exercise the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation provisions, if any;
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if any;
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whether securityholders are entitled to oversubscription rights, if any;
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any applicable material U.S. federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights, as applicable.
Each right will entitle the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The name and address of the rights agent for any rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional information that we include in any applicable prospectus supplements summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common stock, preferred stock and/or debt securities in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit. 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.
We will describe in the applicable prospectus supplement the terms of the series of units being offered, including:
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the designation and terms of the units and of the securities comprising the units, including whether and un-der what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The provisions described in this section, as well as those set forth in any prospectus supplement or as described under “Description of Capital Stock,” “Description of Debt Securities,” “Description of Warrants,” and “Description of Rights” will apply to each unit, as applicable, and to any common stock, preferred stock, debt security, warrant, or right included in each unit, as applicable.
Unit Agent
The name and address of the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
PLAN OF DISTRIBUTION
Under this prospectus, we may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants or rights to purchase any of such securities, either individually or in units, from time to time at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity, if applicable;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion or sinking fund terms, if any;
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voting or other rights, if any; and
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conversion or exercise prices, if any, and the various factors considered in determining such price.
The prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus.
We may offer securities under this prospectus from time to time pursuant to public offerings through one or more placement agents or underwriters, negotiated transactions, block trades or a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more transactions at:
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a fixed price or prices, which may be changed from time to time;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices; or
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negotiated prices.
We may directly solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time, and may enter into arrangements for “at-the-market,” equity line or similar transactions. We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we or the purchasers of the securities for whom the underwriter may act as agent may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If so indicated in the applicable prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions to purchase securities pursuant to delayed delivery contracts providing for payment and delivery on the date stated in each applicable 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 each applicable 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. One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement will identify and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered 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.
Certain underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority, Inc. (FINRA).
Shares of our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading on Nasdaq. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on Nasdaq or any securities market or other securities exchange of the securities covered by the prospectus supplement. Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the liquidity of or the existence, development or maintenance of trading markets for any of the securities.
In order to facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of their business.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
EXPERTS
The financial statements of ArriVent BioPharma, Inc. as of December 31, 2023 and 2022, and for the years then ended, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, and file annual, quarterly and current reports, proxy statements and other information with the SEC. SEC filings are available at the SEC’s web site at http://www.sec.gov.
This prospectus is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act of 1933, as amended, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document.
We also maintain a website at https://arrivent.com/ with information about our company and through which you may access these materials and other filings with the SEC free of charge as soon as reasonably practicable after they are filed electronically with, or furnished to, the SEC. Except for the documents incorporated by reference as described below under “Incorporation of Certain Documents by Reference,” information contained on our website or any other website is not incorporated into this prospectus and does not constitute a part of this prospectus. Our website address referenced above is intended to be an inactive textual reference only and not an active hyperlink to our website.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We filed a registration statement on Form S-3 under the Securities Act of 1933, as amended, with the SEC with respect to the securities we may offer pursuant to this prospectus. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, June 30, 2024, and September 30, 2024 filed with the SEC on May 8, 2024, August 14, 2024 and November 14, 2024, respectively;
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our Current Reports on Form 8-K that we filed with the SEC on January 30, 2024, April 22, 2024 (as amended on July 9, 2024), May 16, 2024 (as amended on July 9, 2024), June 5, 2024, September 9, 2024 (Item 8.01 only), and January 22, 2025 (Item 1.01 only), respectively;
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all reports and documents (other than information furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or as otherwise permitted by SEC rules) filed after the date of this prospectus and prior to the termination or completion of the offering hereunder pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Ex-change Act of 1934.
The SEC file number for each of the documents listed above is 001-41929.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide, without charge and upon oral or written request, to each person, including any beneficial owner, to whom a copy of this prospectus has been delivered, a copy of any of the documents referred to above as being incorporated by reference into this prospectus but not delivered with it. You may obtain a copy of these filings, at no cost, by writing or calling us at ArriVent BioPharma, Inc., Attn: Investor Relations, 18 Campus Boulevard, Suite 100, Newtown Square, PA 19073, (628) 277-4836. Exhibits to the filings will not be provided, however, unless those exhibits have been specifically incorporated by reference in this prospectus.
You should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
ARRIVENT BIOPHARMA, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
February 3, 2025
PROSPECTUS SUPPLEMENT
$250,000,000
Common Stock
We have entered into an Open Market Sale AgreementSM (the sales agreement) with Jefferies LLC (Jefferies), as our sales agent, relating to the shares of our common stock offered by this prospectus supplement and the accompanying base prospectus, or this prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $250,000,000 from time to time through or to Jefferies, as our agent.
Our common stock is listed on The Nasdaq Global Market (Nasdaq), under the symbol “AVBP.” On January 30, 2025, the last reported sale price of our common stock was $29.09 per share.
Sales of our common stock, if any, under this prospectus will be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the Securities Act). Jefferies is not required to sell any specific amount of securities, but will act as our sales agent using commercially reasonable efforts consistent with their normal trading and sales practices, on mutually agreed terms between Jefferies and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies will be entitled to compensation at a commission rate of 3.0% of the gross sales price of common stock sold under the sales agreement. See “Plan of Distribution” beginning on page S-16 for additional information regarding the compensation to be paid to Jefferies. In connection with the sale of the common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Jefferies with respect to certain liabilities, including liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange Act).
We are an emerging growth company as that term is used in the Jumpstart Our Business Startups Act of 2012 and, as such, have elected to comply with certain reduced public company reporting requirements for this prospectus.
Our business and an investment in our common stock involve significant risks. These risks are described under the caption “Risk Factors” beginning on page S-4 of this prospectus supplement and in the documents incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Jefferies
Prospectus Supplement dated February 3, 2025
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TABLE OF CONTENTS
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PROSPECTUS SUPPLEMENT
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S-ii |
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S-19
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ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement is part of an automatic shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the SEC), as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act. Under the shelf registration process, we may offer shares of our common stock having an aggregate offering price of up to $250,000,000 from time to time under this prospectus supplement at prices and on terms to be determined by market conditions at the time of the offering.
We provide information to you about this offering of shares of our common stock in two separate documents that are bound together: (1) this prospectus supplement, which describes the specific details regarding this offering; and (2) the accompanying base prospectus, which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If information in this prospectus supplement is inconsistent with the accompanying base prospectus, you should rely on this prospectus supplement, except as provided in the following sentence. If the information contained in this prospectus supplement differs or varies from the information contained in any document incorporated by reference herein that was filed with the SEC before the date of this prospectus supplement, you should rely on the information set forth in this prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document having a later date (for example, a subsequently filed document deemed incorporated by reference in this prospectus supplement), the statement in the document having the later date modifies or supersedes the earlier statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not, and the sales agent has not, authorized anyone to provide you with information that is in addition to or different from that contained or incorporated by reference in this prospectus or contained in any permitted free writing prospectuses we have authorized for use in connection with this offering. We and the sales agent take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may provide.
The information contained in this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference herein or therein and any free writing prospectus that we may authorize for use in connection with this offering is accurate only as of their respective dates, regardless of the time of delivery of any such document or the time of any sale of our shares of common stock. Our business, financial condition, results of operations and prospects may have changed since those dates. It is important for you to read and consider this prospectus supplement, the accompanying base prospectus, the documents incorporated by reference into this prospectus supplement and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making your investment decision. You should also read and consider the additional information described under the section titled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” in this prospectus supplement before investing in our shares of common stock.
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 in this prospectus 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.
As used in this prospectus, “ArriVent,” the “Company,” “we,” “our” or “us” refers to ArriVent BioPharma, Inc. and its subsidiaries. References to our “common stock” refer to the common stock of ArriVent BioPharma, Inc.
PROSPECTUS SUPPLEMENT SUMMARY
The following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus supplement. We urge you to read this entire prospectus supplement, the accompanying base prospectus and any free writing prospectus that we have authorized for use in connection with this offering, including the more detailed financial statements, notes to the financial statements and other information incorporated by reference from our other filings with the SEC. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus supplement, the accompanying base prospectus and any free writing prospectus that we have authorized for use in connection with this offering, and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Company Overview
We are a clinical-stage biopharmaceutical company dedicated to the identification, development and commercialization of differentiated medicines to address the unmet medical needs of patients with cancers. We seek to utilize our team’s deep drug development experience to maximize the potential of our lead development candidate, firmonertinib, and advance a pipeline of novel therapeutics, such as next-generation antibody drug conjugates, through approval and commercialization in patients suffering from cancer, with an initial focus on solid tumors. Firmonertinib is currently being evaluated in multiple clinical trials across a range of epidermal growth factor receptor mutant (EGFRm) in non-small cell lung cancer (NSCLC), including a pivotal Phase 3 clinical trial in treatment naïve, or first-line, patients with locally advanced or metastatic EGFRm NSCLC with exon 20 insertion mutations. We received Breakthrough Therapy Designation for firmonertinib for this disease from the United States Food and Drug Administration (FDA) in October 2023, and Orphan Drug Designation for treatment of NSCLC with EGFRm or human epidermal growth factor receptor 2 (HER2) mutations or human epidermal growth factor receptor 4 (HER4) mutations in February 2024.
In 2021, we licensed from Shanghai Allist Pharmaceuticals Co. Ltd. (Allist) the right to develop and commercialize firmonertinib worldwide, with the exception of greater China, which includes mainland China, Hong Kong, Macau and Taiwan.Firmonertinib is an investigational, novel, EGFRm-selective tyrosine kinase inhibitor (TKI) that we are developing for the treatment of NSCLC patients across a broader set of EGFRm than are currently served by approved EGFR TKIs. Firmonertinib is currently only approved and commercially distributed by Allist in China as a first-line therapy to treat classical EGFRm NSCLC. The FDA has not approved firmonertinib for any use. We selected firmonertinib for global development against nonclassical, or uncommon, mutations based on preliminary reductions in tumor size observed in seven out of ten patients in first-line treatment with EGFR exon 20 insertion mutations in the ongoing Phase 1b clinical trial, the FAVOUR trial, conducted by Allist in China, and preclinical activity in EGFR P-loop and-alpha-c-helix compressing (PACC) mutations, each a subtype of uncommon mutation. In a subsequent interim data readout from the FAVOUR trial of firmonertinib in first-line patients with locally advanced or metastatic EGFRm NSCLC with exon 20 insertion mutations, 79% of patients (n=22 out of 28 patients) were observed to experience a reduction in tumor size of at least 30%. If the future clinical trial results of the FAVOUR trial are unfavorable, our clinical development plans for firmonertinib, which include conducting our global, pivotal Phase 3 FURVENT clinical trial in first-line non-squamous locally advanced or metastatic EGFRm NSCLC patients with exon 20 insertion mutations, may be adversely affected. In a separate Phase 1b interim readout from our FURTHER clinical trial evaluating first-line treatment with EGFR PACC mutations, 64% of patients (n=14 out of 22 patients) were observed to experience a reduction in tumor size of at least 30%.
Additional Information
For additional information related to our business and operations, please refer to the reports incorporated herein by reference, including our Annual Report on Form 10-K for the year ended December 31, 2023 and subsequent reports filed with the SEC, as described under the caption “Incorporation of Documents by Reference” on page S-18 of this prospectus supplement.
Our Corporate Information
We were incorporated under the laws of the State of Delaware on April 14, 2021. Our principal executive offices are located at 18 Campus Boulevard, Suite 100, Newtown Square, PA 19073, and our telephone number is (628) 277-4836. Our website address is https://arrivent.com/. The information contained on, or that can be accessed through, our website is not and shall not be deemed to be part of this prospectus supplement. We have included our website address in this prospectus supplement solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our common stock.
Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and all amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), are available free of charge through the investor relations page of our internet website as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC.
All trademarks appearing in this prospectus supplement are the property of their respective holders. Use or display by us of other parties’ trademarks, or products in this prospectus supplement is not intended to, and does not, imply a relationship with, or endorsements or sponsorship of, us by the trademark.
THE OFFERING
Common stock offered by us
Shares of our common stock, par value $0.0001 per share, having an aggregate offering price of up to $250,000,000.
Common stock to be outstanding immediately after this offering
Up to 42,288,374 shares of common stock after the completion of this offering (as more fully described in the notes following this table), assuming that we sell the maximum dollar value of shares available to be sold in the offering are sold at a price of $29.09 per share, which was the closing price of our common stock on Nasdaq on January 30, 2025. The actual number of shares outstanding after this offering will vary depending on the number of shares sold and issued and the sale prices of such shares.
“At the market offering” that may be made from time to time through or to our sales agent, Jefferies. See “Plan of Distribution” on page S-16 of this prospectus supplement.
We currently intend to use the net proceeds from this offering, together with our existing cash resources, to support our activities for firmonertinib and our other pipeline programs and for working capital and other general corporate purposes. See “Use of Proceeds” in this prospectus supplement.
Investing in our common stock involves a high degree of risk, and the purchasers of our common stock may lose all or part of their investment. Before deciding to invest in our securities, please carefully read the section entitled “Risk Factors” of this prospectus supplement and the accompanying base prospectus and in the documents incorporated by reference into this prospectus supplement.
“AVBP”
The number of shares of our common stock shown above to be outstanding after this offering is based on 33,694,355 shares of our common stock issued and outstanding as of September 30, 2024, and excludes:
▪
2,527,417 shares of common stock issuable upon the exercise of outstanding stock options as of September 30, 2024, issued under our 2021 Employee, Director and Consultant Equity Incentive Plan, as amended (2021 Plan) or our 2024 Employee, Director and Consultant Equity Incentive Plan (2024 Plan), having a weighted-average exercise price of $6.60 per share; and
▪
3,758,647 shares of common stock reserved for issuance pursuant to future awards under our 2024 Plan, as well as automatic increases in the number of shares of common stock reserved for future issuance under the 2024 Plan, plus any shares underlying outstanding stock awards granted under our 2021 Plan that expire or are repurchased, forfeited, cancelled or withheld.
Unless otherwise indicated, all information in this prospectus supplement assumes no exercise of outstanding stock options described above.
RISK FACTORS
An investment in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks described below and discussed under the sections captioned “Risk Factors” contained in our most recent Annual Report on Form 10-K, as well as in any of our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, which are incorporated by reference herein in their entirety, together with other information in this prospectus supplement, the information and documents incorporated by reference in this prospectus supplement, and in any free writing prospectus that we have authorized for use in connection with this offering. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment.
Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose part or all of your investment. This prospectus supplement and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks mentioned below. Forward-looking statements included in this prospectus supplement are based on information available to us on the date hereof, and all forward-looking statements in documents incorporated by reference are based on information available to us as of the date of such documents. We disclaim any intent to update any forward-looking statements.
Risks Related to this Offering and Our Common Stock
Our management will have broad discretion over the use of the net proceeds from this offering, and you may not agree with how we use the proceeds and the proceeds may not be invested successfully.
We intend to use any net proceeds from the sale of common stock under this prospectus supplement, together with our existing cash resources, to support our activities for firmonertinib and our other pipeline programs and for working capital and other general corporate purposes.
Our management will have broad discretion as to the use of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of this offering. Accordingly, you are relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds will be used appropriately. It is possible that the proceeds will be invested in a way that does not yield a favorable, or any, return for us.
If you purchase shares in this offering, you may experience immediate and substantial dilution in the book value per share of the common stock purchased in the offering.
The shares of our common stock sold in this offering from time to time will be sold at various prices; however, the per share offering prices may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Based on the assumed sale price of $29.09 per share, which was the closing price of our common stock on Nasdaq on January 30, 2025, for aggregate gross proceeds of $250,000,000, and after deducting commissions and estimated offering expenses payable by us, you would experience immediate dilution of $17.04 per share, representing the difference between the as adjusted net tangible book value per share as of September 30, 2024, and the assumed public offering price per share. Further, you may experience additional dilution upon the exercise of options, including those options currently outstanding and those granted in the future, or the issuance of other equity awards under our stock incentive plans. See “Dilution” for a more detailed discussion of the dilution you will incur in connection with this offering. In addition, in the past, we have issued options to acquire common stock at prices below the assumed sale price of $29.09 per share. To the extent these outstanding options are ultimately exercised, you may incur additional dilution.
You may experience future dilution as a result of future equity or convertible debt offerings.
In order to raise additional capital, we may in the future offer additional shares of common stock or other securities convertible into or exchangeable for our shares of common stock at prices that may not be the same as the prices 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 common stock, or securities convertible or exchangeable into shares of common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
The shares of our common stock offered under this prospectus supplement may be sold in “at the market” offerings, and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares under this prospectus supplement at different times will likely pay different prices, and so may experience different levels of dilution and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and to determine the minimum sales price for shares sold. Investors may experience declines in the value of their shares as a result of share sales made in connection with “at the market” offerings at prices lower than the prices they paid.
The actual number of shares we will issue under the sales agreement, or the net proceeds resulting from those issuances, at any one time or in total, is uncertain.
Subject to certain limitations in the sales agreement and compliance with applicable law, we and Jefferies may mutually agree to sell shares of our common stock under a transaction acceptance at any time throughout the term of the sales agreement. The number of shares that are sold by Jefferies after agreement on the terms of the transaction will fluctuate based on a number of factors, including the market price of the shares of our common stock during the sales period and limits we set with Jefferies. Because the price per share of each share sold will fluctuate based on the market price of our shares of common stock during the sales period, it is not possible to predict the number of shares that will ultimately be issued or the net proceeds to be raised in connection with those issuances.
Because we do not anticipate paying any cash dividends on our capital stock in the foreseeable future, capital appreciation, if any, will be your sole source of gain.
We have never paid or declared any cash dividends on our capital stock. We currently intend to retain earnings, if any, to finance the growth and development of our business and we do not anticipate paying any cash dividends in the foreseeable future. As a result, it is likely that only appreciation of the price of our common stock will provide a return to our stockholders.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying base prospectus, the documents incorporated by reference herein or therein, and any related free writing prospectus, include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act that relate to our future results of operations and financial position, business strategy, plans for our product candidates, planned preclinical studies and clinical trials, results of clinical trials, future research and development costs, regulatory approvals, timing and likelihood of success, as well as plans and objectives of management for future operations and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Words such as, but not limited to, “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “target,” “will,” “would,” or the negative of these words or other comparable terminology, are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus supplement, the accompanying base prospectus and incorporated by reference herein and therein, we caution you that these statements are based on our projections of the future that are subject to known and unknown risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed or implied by these forward-looking statements, to differ from those expressed or implied by any forward-looking statement. The sections in our periodic reports, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, entitled “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and the documents or reports incorporated by reference in the prospectus supplement, the accompanying base prospectus and the documents or reports incorporated by reference herein and therein, discuss some of the factors that could contribute to these differences. These forward-looking statements include, among other things, statements about:
▪
the timing, progress and results of preclinical studies and clinical trials for firmonertinib or any of our other current or future product candidates, including our product development plans and strategies;
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estimates of our addressable market, market growth, future revenue, key performance indicators, expenses, capital requirements and our needs for additional financing;
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our ability to obtain funding for our operations;
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our ability to retain the continued service of our key professionals and to identify, hire and retain additional qualified professionals;
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our ability to advance product candidates into, and successfully complete, clinical trials;
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the timing or likelihood of regulatory filing and approvals;
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the commercialization of our product candidates, if approved;
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the pricing and reimbursement of our product candidates, if approved;
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the implementation of our business model, strategic plans for our business, product candidates and technology;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology;
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developments relating to our competitors and our industry;
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the accuracy of our estimates regarding expenses, capital requirements and needs for additional financing;
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our ability to source sufficient clinical product for our clinical trials and, if our product candidates are approved and commercialized, commercial product; and
▪
our financial performance.
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 cautionary statements in this prospectus supplement, the accompanying base prospectus or the documents incorporated by reference herein or therein, particularly in the “Risk Factors” section, that we believe could cause actual results or events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to the section titled “Risk Factors” in this prospectus and our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, as well as any amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference herein and therein is believed to be current as of their respective dates. We do not intend to update any of the forward-looking statements after the date of this prospectus supplement to conform these statements to actual results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus supplement, the accompanying base prospectus or in any document incorporated herein or therein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this prospectus supplement, the accompanying base prospectus or the date of the document incorporated by reference herein or therein. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sale proceeds of up to $250,000,000 from time to time. Because there is no minimum offering amount required to be sold in connection with this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. We intend to use any net proceeds from this offering, together with our existing cash resources, to support our activities for firmonertinib and our other pipeline programs and for working capital and other general corporate purposes. The amounts and timing of our actual expenditures will depend on numerous factors, including those described under “Risk Factors” in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference herein, as well as the amount of cash used in our operations. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection with this offering. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing securities or apply them to the reduction of short-term indebtedness.
DILUTION
As of September 30, 2024, our net tangible book value was $267.6 million, or $7.94 per share of common stock. Net tangible book value per share represents the amount of our tangible assets less our liabilities divided by 33,694,355, the total number of shares of our common stock outstanding as of September 30, 2024. Dilution with respect to net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the net tangible book value per share of our common stock immediately after this offering.
After giving effect to the assumed sale of our common stock in the aggregate amount of $250,000,000 at an assumed offering price of $29.09 per share, the last reported sale price of our common stock on Nasdaq on January 30, 2025, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of September 30, 2024 would have been $509.5 million, or $12.05 per share of common stock. This amount would represent an immediate increase in net tangible book value of $4.11 per share to our existing stockholders and an immediate dilution in net tangible book value of approximately $17.04 per share to new investors in this offering.
The following table illustrates this calculation on a per share basis. The as adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this offering. The shares sold in this offering, if any, will be sold from time to time at various prices.
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Assumed public offering price per share
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$ |
29.09 |
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Net tangible book value per share as of September 30, 2024
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$ |
7.94 |
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Increase in net tangible book value per share attributable to this offering
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$ |
4.11 |
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As adjusted net tangible book value per share September 30, 2024 after this offering
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$ |
12.05 |
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Dilution per share to new investors participating in this offering
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$ |
17.04 |
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The table above assumes for illustrative purposes that an aggregate of 8,594,019 shares of our common stock are sold pursuant to this offering at a price of $29.09 per share, the last reported sale price of our common stock on Nasdaq on January 30, 2025, for aggregate gross proceeds of $250,000,000. The shares are being sold from time to time at various prices pursuant to the sales agreement with Jefferies. A $1.00 increase in the assumed offering price of $29.09 per share shown in the table above, assuming all of our common stock in the aggregate amount of $250,000,000 during the term of the sales agreement with Jefferies is sold at that price, would increase our adjusted net tangible book value per share after the offering to $12.13 per share and increase the dilution per share to purchasers by approximately $0.92, after deducting commissions and estimated offering expenses payable by us. A $1.00 decrease in the assumed offering price of $29.09 per share shown in the table above, assuming all of our common stock in the aggregate amount of $250,000,000 during the term of the sales agreement with Jefferies is sold at that price, would decrease our adjusted net tangible book value per share after the offering to $11.96 per share and would decrease dilution per share to purchasers by approximately $0.91, after deducting commissions and estimated offering expenses payable by us. This information is supplied for illustrative purposes only and will adjust based on the actual public offering price and other terms of this offering determined at pricing.
For purposes of calculating as adjusted net tangible book value, the above table is based on 33,694,355 shares of our common stock issued and outstanding as of September 30, 2024. The number of shares outstanding as of September 30, 2024 excludes:
▪
2,527,417 shares of common stock issuable upon the exercise of outstanding stock options as of September 30, 2024, issued under our 2021 Plan or our 2024 Plan, having a weighted-average exercise price of $6.60 per share; and
▪
3,758,647 shares of common stock reserved for issuance pursuant to future awards under our 2024 Plan, as well as automatic increases in the number of shares of common stock reserved for future issuance under the 2024 Plan, plus any shares underlying outstanding stock awards granted under our 2021 Plan that expire or are repurchased, forfeited, cancelled or withheld.
To the extent that outstanding options are exercised, investors purchasing our common stock in this offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 200,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share, all of which is undesignated. As of September 30, 2024, there were 33,694,355 shares of our common stock issued and outstanding. As of September 30, 2024, we had approximately 59 record holders of our capital stock.
The following description of our capital stock and provisions of our amended and restated certificate of incorporation and amended and restated bylaws are summaries of material terms and provisions and are qualified by reference to our amended and restated certificate of incorporation and amended and restated bylaws, copies of which have been filed with the SEC as exhibits to the registration statement of which this prospectus supplement is a part.
Common Stock
General
We are authorized to issue one class of common stock. Holders of our common stock are entitled to one vote for each share of common stock held of record for the election of directors and on all matters submitted to a vote of stockholders. Holders of our common stock are entitled to receive dividends ratably, if any, as may be declared by our board of directors out of legally available funds, subject to any preferential dividend rights of any preferred stock then outstanding. Upon our dissolution, liquidation or winding up, holders of our common stock are entitled to share ratably in our net assets legally available after the payment of all our debts and other liabilities, subject to the preferential rights of any preferred stock then outstanding. Holders of our common stock have no preemptive, subscription, redemption or conversion rights. Our outstanding shares of common stock are, and the shares offered by us in this offering will be, when issued and paid for, validly issued, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future. Except as described under the “— Certain Provisions of Delaware Law and of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws” section below, a majority vote of the holders of common stock is generally required to take action under our amended and restated certificate of incorporation and amended and restated bylaws.
Stock Exchange Listing
Our common stock is listed for quotation on Nasdaq under the symbol “AVBP.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Preferred Stock
As of September 30, 2024, there were no shares of preferred stock outstanding. Our board of directors is authorized, without action by our stockholders, to designate and issue up to an aggregate of 10,000,000 shares of preferred stock in one or more series. Our board of directors can designate the rights, preferences and privileges of the shares of each series and any of its qualifications, limitations or restrictions. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings and acquisitions and other corporate purposes could, under certain circumstances, have the effect of restricting dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock, or delaying, deferring or preventing a change in control of our company, which might harm the market price of our common stock. See also the “— Certain Provisions of Delaware Law and of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws” section of this prospectus supplement.
CERTAIN PROVISIONS OF DELAWARE LAW AND OF OUR AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION AND AMENDED AND RESTATED BYLAWS
Anti-Takeover Provisions
Some provisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws could make the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Board Composition and Filling Vacancies
In accordance with our amended and restated certificate of incorporation, our board of directors is divided into three classes serving three-year terms, with one class being elected each year. Our amended and restated certificate of incorporation also provides that directors may be removed only for cause and then only by the affirmative vote of the holders of seventy-five percent 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 of directors, will only be able to be filled by the affirmative vote of a majority of our directors then in office, even if less than a quorum.
No Written Consent of Stockholders
Our amended and restated 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.
Meetings of Stockholders
Our amended and restated 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 amended and restated 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 amended and restated 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 or more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. The notice must contain certain information specified in our amended and restated bylaws. These provisions may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed. These provisions may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our Company.
Amendment to Bylaws and Certificate of Incorporation
As required by the Delaware General Corporation Law, any amendment of our amended and restated certificate of incorporation must first be approved by a majority of our board of directors and, if required by law or our amended and restated certificate of incorporation, 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 stockholder action, directors, limitation of liability, exclusive jurisdiction of Delaware Courts and the amendment of our amended and restated
bylaws and amended and restated certificate of incorporation must be approved by not less than seventy-five percent of the outstanding shares entitled to vote on the amendment, and not less than seventy-five percent of the outstanding shares of each class entitled to vote thereon as a class. Our amended and restated 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 amended and restated bylaws; and may also be amended by the affirmative vote of at least seventy- five percent of the outstanding shares entitled to vote on the amendment, or, if the board of directors recommends that the stockholders approve the amendment, by the affirmative vote of the majority of the outstanding shares entitled to vote on the amendment.
Blank Check Preferred Stock
Our amended and restated certificate of incorporation provides for 10,000,000 authorized shares of preferred stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to render more difficult or 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 us or 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 amended and restated 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.
Section 203 of the Delaware General Corporation Law
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. A “business combination” includes, among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s voting stock.
Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
▪
before the stockholder became interested, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
▪
upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation 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; or
▪
at or after the time the stockholder became interested, the business combination was approved by the board of directors of the corporation 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 that is not owned by the interested stockholder.
A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in its amended and restated certificate of incorporation or amended and restated bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
Exclusive Jurisdiction of Certain Actions
Our amended and restated 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 (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State
of Delaware) will be the sole and exclusive forum for any state law claim for: (1) any derivative action or proceeding brought on our behalf; (2) any action or proceeding asserting a claim of breach of a fiduciary duty or other wrongdoing by any of our directors, officers, employees or agents to us or our stockholders; (3) any action or proceeding asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law or our certificate of incorporation or bylaws (in each case, as they may be amended from time to time); (4) any action or proceeding to interpret, apply, enforce or determine the validity of our amended and restated certificate of incorporation or our amended and restated bylaws; (5) any action or proceeding as to which the Delaware General Corporation Law confers jurisdiction to the Court of Chancery of the State of Delaware; or (6) any action asserting a claim against us or any of our directors, officers or employees that is governed by the internal affairs doctrine. The choice of forum provision does not apply to any actions arising under the Exchange Act. Our amended and restated certificate of incorporation further provides that, unless we consent in writing to an alternative forum, the United States District Court for the District of Pennsylvania will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. We have chosen the United States District Court for the District of Pennsylvania as the exclusive forum for such Securities Act causes of action because our principal executive offices are located in Newtown Square, Pennsylvania. In addition, our amended and restated 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 provisions.
The choice of forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or any of our current or former director, officer, other employee, agent, or stockholder to the Company, which may discourage such claims against us or any of our current or former director, officer, other employee, agent, or stockholder to the Company and result in increased costs for investors to bring a claim. Alternatively, if a court were to find the choice of forum provisions contained in our amended and restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, results of operations and financial condition.
Limitation of Liability and Indemnification
Our amended and restated certificate of incorporation provides that no director or officer of our company shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except for liability (1) for any breach of the director’s or officer’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) with respect to a director, under Section 174 of the Delaware General Corporation Law, and with respect to an officer, from any action by or in the right of the Registrant, or (4) for any transaction from which a director or an officer derived an improper personal benefit. In addition, our amended and restated certificate of incorporation provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors of officers, then the liability of a director or officer of our company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Our amended and restated certificate of incorporation further provides that any repeal or modification of such article by our stockholders or amendment to the Delaware General Corporation Law will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a director serving at the time of such repeal or modification.
Our amended and restated bylaws, provide that we will indemnify each of our directors and officers and, in the discretion of our board of directors, certain employees, to the fullest extent permitted by the Delaware General Corporation Law as the same may be amended (except that in the case of amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the Delaware General Corporation Law permitted us to provide prior to such the amendment) against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the director, officer or such employee or on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is or was serving as a director, officer or employee of our company, or at our request as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of our company and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. Article VII, Section 2 of our amended and restated bylaws further provides for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers and employees.
In addition, our amended and restated bylaws provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of our amended and restated certificate of incorporation or our amended and restated bylaws, agreement, vote of stockholders or otherwise. Furthermore, Article VII, Section 5 of our amended and restated bylaws authorizes us to provide insurance for our directors, officers and employees, against any liability, whether or not we would have the power to indemnify such person against such liability under the Delaware General Corporation Law or the provisions of Article VII, Section 1 of our amended and restated bylaws.
We have entered into indemnification agreements with each of our directors and our executive officers. These agreements provide that we will indemnify each of our directors and such officers to the fullest extent permitted by law and our amended and restated certificate of incorporation and our amended and restated bylaws.
We also maintain a general liability insurance policy, which covers certain liabilities of directors and officers of our company arising out of claims based on acts or omissions in their capacities as directors or officers.
The foregoing discussion of our amended and restated certificate of incorporation and our amended and restated bylaws, indemnification agreements and Delaware law is not intended to be exhaustive and is qualified in its entirety by such amended and restated certificate of incorporation, our amended and restated bylaws, indemnification agreements or law.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies, under which we may offer and sell up to $250,000,000 of our shares of common stock from time to time through Jefferies acting as agent. Sales of our shares of common stock, if any, under this prospectus will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell our shares of common stock under the sales agreement, we will notify Jefferies of the number of shares to be issued, the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Jefferies under the sales agreement to sell our shares of common stock are subject to a number of conditions that we must meet.
The settlement of sales of shares between us and Jefferies is generally anticipated to occur on the first trading day following the date on which the sale was made. Sales of our shares of common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission equal to 3.0% of the aggregate gross proceeds we receive from each sale of our shares of common stock. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In addition, we have agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the sales agreement, in an amount not to exceed $75,000, in addition to certain ongoing disbursements of its legal counsel. We estimate that the total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the sales agreement, will be approximately $640,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares.
Jefferies will provide written confirmation to us before the open on the Nasdaq Global Market on the day following each day on which our shares of common stock are sold under the sales agreement. Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of our shares of common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.
The offering of our shares of common stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all shares of common stock subject to the sales agreement and (ii) the termination of the sales agreement as permitted therein. We and Jefferies may each terminate the sales agreement at any time upon ten trading days’ prior notice.
This summary of the material provisions of the sales agreement does not purport to be a complete statement of its terms and conditions. A copy of the sales agreement is filed as an exhibit to the registration statement of which this prospectus supplement forms a part.
Jefferies and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
A prospectus supplement and the accompanying base prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus supplement and the accompanying base prospectus electronically.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, will pass upon certain legal matters relating to this offering. Latham & Watkins LLP, New York, New York is acting as counsel to the sales agent in connection with this offering.
EXPERTS
The financial statements of ArriVent BioPharma, Inc. as of December 31, 2023 and 2022, and for the years then ended, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus supplement, and information that we file later with the SEC will automatically update and supersede this information. We filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the securities we may offer pursuant to this prospectus supplement. This prospectus supplement omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus supplement. Statements in this prospectus supplement regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
▪
▪
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, June 30, 2024, and September 30, 2024 filed with the SEC on May 8, 2024, August 14, 2024 and November 14, 2024, respectively;
▪
our Current Reports on Form 8-K that we filed with the SEC on January 30, 2024, April 22, 2024 (as amended on July 9, 2024), May 16, 2024 (as amended on July 9, 2024), June 5, 2024, September 9, 2024 (Item 8.01 only), and January 22, 2025 (Item 1.01 only), respectively;
▪
▪
all reports and documents (other than information furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or as otherwise permitted by SEC rules) filed after the date of this prospectus supplement and prior to the termination or completion of the offering hereunder pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934.
The SEC file number for each of the documents listed above is 001-41929.
Any statement contained in this prospectus supplement or in a document incorporated or deemed to be incorporated by reference into this prospectus supplement will be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained in this prospectus supplement or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus supplement modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus supplement.
We will provide, without charge and upon oral or written request, to each person, including any beneficial owner, to whom a copy of this prospectus supplement has been delivered, a copy of any of the documents referred to above as being incorporated by reference into this prospectus supplement but not delivered with it. You may obtain a copy of these filings, at no cost, by writing or calling us at ArriVent BioPharma, Inc., Attn: Investor Relations, 18 Campus Boulevard, Suite 100, Newtown Square, PA 19073, (628) 277-4836. Exhibits to the filings will not be provided, however, unless those exhibits have been specifically incorporated by reference in this prospectus supplement.
You should rely only on information contained in, or incorporated by reference into, this prospectus supplement and any other prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus supplement or incorporated by reference in this prospectus supplement. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange Act, and in accordance therewith, file periodic reports, proxy statements and other information with the SEC. SEC filings are available at the SEC’s web site at http://www.sec.gov.
This prospectus supplement is only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus supplement, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document.
We also maintain a website at https://arrivent.com/, through which you can access our SEC filings. The information set forth on our website is not part of this prospectus supplement.
$250,000,000
Common Stock
PROSPECTUS SUPPLEMENT
Jefferies
February 3, 2025
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
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SEC Registration Fee
|
|
|
|
$ |
38,275(1) |
|
|
| |
FINRA filing fee
|
|
|
|
$ |
225,500 |
|
|
| |
Printing and Engraving Expenses
|
|
|
|
|
(2) |
|
|
| |
Legal Fees and Expenses
|
|
|
|
|
(2) |
|
|
| |
Accounting Fees and Expenses
|
|
|
|
|
(2) |
|
|
| |
Transfer Agent and Registrar Fees
|
|
|
|
|
(2) |
|
|
| |
Miscellaneous
|
|
|
|
|
(2) |
|
|
| |
Total
|
|
|
|
|
(2) |
|
|
| |
(1)
In accordance with Rules 456(b) and 457(r), we are deferring payment of the registration fee for the securities offered under this registration statement, except for $38,275, related to $250,000,000 of the registrant’s common stock that may be issued and sold from time to time under the Open Market Sale AgreementSM with Jefferies LLC.
(2)
These fees will be calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15.
Indemnification of Directors and Officers
Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the Delaware General Corporation Law.
Our Amended and Restated Certificate of Incorporation, or the Charter, provides that no director or officer of our company shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except for liability (1) for any breach of the director’s or officer’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) with respect to a director, under Section 174 of the Delaware General Corporation Law, and with respect to an officer, from any action by or in the right of the Registrant, or (4) for any transaction from which a director or an officer derived an improper personal benefit. In addition, our Charter provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors of officers, then the liability of a director or officer of our company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
The Charter further provides that any repeal or modification of such article by our stockholders or amendment to the Delaware General Corporation Law will not adversely affect any right or protection existing at the time of such repeal or modification with respect to any acts or omissions occurring before such repeal or modification of a director serving at the time of such repeal or modification.
Our Amended and Restated Bylaws, or the Bylaws, provide that we will indemnify each of our directors and officers and, in the discretion of our board of directors, certain employees, to the fullest extent permitted by the Delaware General Corporation Law as the same may be amended (except that in the case of amendment, only to the extent that the amendment permits us to provide broader indemnification rights than the Delaware General Corporation Law permitted us to provide prior to such the amendment) against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement that are incurred by the director, officer or such employee or on the director’s, officer’s or employee’s behalf in connection with any threatened, pending or completed proceeding or any claim, issue or matter therein, to which he or she is or is threatened to be made a party because he or she is or was serving as a director, officer or employee of our company, or at our request as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of our company and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. Article VII, Section 2 of the Bylaws further provides for the advancement of expenses to each of our directors and, in the discretion of the board of directors, to certain officers and employees.
In addition, the Bylaws provide that the right of each of our directors and officers to indemnification and advancement of expenses shall be a contract right and shall not be exclusive of any other right now possessed or hereafter acquired under any statute, provision of the Charter or Bylaws, agreement, vote of stockholders or otherwise. Furthermore, Article VII, Section 5 of the Bylaws authorizes us to provide insurance for our directors, officers and employees, against any liability, whether or not we would have the power to indemnify such person against such liability under the Delaware General Corporation Law or the provisions of Article VII, Section 1 of the Bylaws.
We have entered into indemnification agreements with each of our directors and our executive officers. These agreements provide that we will indemnify each of our directors and such officers to the fullest extent permitted by law and the Charter and Bylaws.
We also maintain a general liability insurance policy, which covers certain liabilities of directors and officers of our company arising out of claims based on acts or omissions in their capacities as directors or officers.
The foregoing discussion of our amended and restated certificate of incorporation our amended and restated bylaws, indemnification agreements and Delaware law is not intended to be exhaustive and is qualified in its entirety by such amended and restated certificate of incorporation our amended and restated bylaws, indemnification agreements, or law.
Item 16.
Exhibits
The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which immediately precedes the Signature Page and which Exhibit Index is hereby incorporated by reference.
Item 17.
Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (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 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the Act) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
EXHIBIT INDEX
| |
Exhibit
Number
|
|
|
Exhibit Description
|
|
|
Filed
Herewith
|
|
|
Incorporated
by Reference
herein from
Form or
Schedule
|
|
|
Filing
Date
|
|
|
SEC File/
Reg.
Number
|
|
| |
1.1*
|
|
|
Form of Underwriting Agreement.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
1.2
|
|
|
Open Market Sale AgreementTM, dated as of February 3, 2025, by and between ArriVent BioPharma, Inc. andJefferiesLLC.
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
3.1
|
|
|
|
|
|
|
|
|
8-K
(Exhibit 3.1)
|
|
|
1/30/24
|
|
|
001-41929
|
|
| |
3.2
|
|
|
|
|
|
|
|
|
8-K
(Exhibit 3.2)
|
|
|
1/30/24
|
|
|
001-41929
|
|
| |
4.1
|
|
|
|
|
|
|
|
|
Form S-1
(Exhibit 4.1)
|
|
|
1/5/24
|
|
|
333-276397
|
|
| |
4.2*
|
|
|
Form of Certificate of Designation with respect to preferred stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
4.3
|
|
|
|
|
|
|
|
|
Form S-1
(Exhibit 4.2)
|
|
|
1/5/24
|
|
|
333-276397
|
|
| |
4.4
|
|
|
|
|
|
|
|
|
Form 10-K
(Exhibit 4.3)
|
|
|
03/28/24
|
|
|
001-41929
|
|
| |
4.4*
|
|
|
Form of Senior Debt Security
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
4.5*
|
|
|
Form of Subordinated Debt Security.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
4.6
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
4.7
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
4.8*
|
|
|
Form of Warrant Agreement and Warrant Certificate.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
4.9*
|
|
|
Form of Rights Agreement and Right Certificate.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
4.10*
|
|
|
Form of Unit Agreement and Unit.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
5.1
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
23.1
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
23.2
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
24.1
|
|
|
Powers of Attorney (included on the signature page of this registration statement).
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
| |
25.1*
|
|
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent filing in
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
Exhibit
Number
|
|
|
Exhibit Description
|
|
|
Filed
Herewith
|
|
|
Incorporated
by Reference
herein from
Form or
Schedule
|
|
|
Filing
Date
|
|
|
SEC File/
Reg.
Number
|
|
| |
|
|
|
accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
25.2*
|
|
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
107
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
*
To be subsequently filed, if applicable, by an amendment to this registration statement or by a Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Newtown Square, Pennsylvania, on February 3, 2025.
ARRIVENT BIOPHARMA, INC.
By:
/s/ Zhengbin (Bing) Yao, Ph.D.
Zhengbin (Bing) Yao, Ph.D.
President and Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of ArriVent BioPharma, Inc., hereby severally constitute and appoint Zhengbin (Bing) Yao, Ph.D. and Winston Kung, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them and in each of their name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all 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 or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Zhengbin (Bing) Yao, Ph.D.
Zhengbin (Bing) Yao, Ph.D.
|
|
|
Chairman, Chief Executive Officer and Director (Principal Executive Officer)
|
|
|
February 3, 2025
|
|
| |
/s/ Winston Kung
Winston Kung
|
|
|
Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
|
|
|
February 3, 2025
|
|
| |
/s/ Carl L. Gordon, Ph.D., CFA
Carl L. Gordon, Ph.D., CFA
|
|
|
Director
|
|
|
February 3, 2025
|
|
| |
/s/ James Healy, M.D., Ph.D.
James Healy, M.D., Ph.D.
|
|
|
Director
|
|
|
February 3, 2025
|
|
| |
/s/ John Hohneker, M.D.
John Hohneker, M.D.
|
|
|
Director
|
|
|
February 3, 2025
|
|
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Stuart Lutzker, M.D., Ph.D.
Stuart Lutzker, M.D., Ph.D.
|
|
|
President of Research and Development and Director
|
|
|
February 3, 2025
|
|
| |
/s/ Chris W. Nolet
Chris W. Nolet
|
|
|
Director
|
|
|
February 3, 2025
|
|
| |
/s/ Kristine Peterson
Kristine Peterson
|
|
|
Director
|
|
|
February 3, 2025
|
|
Exhibit 1.2
OPEN MARKET SALE AGREEMENTSM
February 3, 2025
JEFFERIES
LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
ArriVent BioPharma, Inc.,
a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell
from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”), shares of the Company’s
common stock, par value $0.0001 per share (the “Common Shares”), having an aggregate offering price of up to the Maximum
Program Amount (as defined below) on the terms set forth in this agreement (this “Agreement”).
Section 1. DEFINITIONS
(a) Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective
meanings:
“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such first- mentioned Person. The term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agency Period”
means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date on which the Agent
shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated pursuant to
Section 7.
“Commission”
means the U.S. Securities and Exchange Commission.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable period
set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance Notice
by delivering written notice of such change to the Agent and which in no event shall be less than $1.00 without the prior written consent
of the Agent, which may be withheld in the Agent’s sole discretion.
SM “Open Market Sale Agreement” is a service
mark of Jefferies LLC
“Issuance Amount”
means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.
“Issuance Notice”
means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached hereto as Exhibit A
that is executed by its President and Chief Executive Officer or Chief Financial Officer.
“Issuance Notice
Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered
pursuant to Section 3(b)(i).
“Issuance Price”
means the Sales Price less the Selling Commission.
“Maximum Program
Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of Common Shares
registered under the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) the number
of authorized but unissued Common Shares (less Common Shares issuable upon exercise, conversion or exchange of any outstanding securities
of the Company or otherwise reserved from the Company’s authorized capital stock), (c) the number or dollar amount of Common
Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable), or (d) the number or
dollar amount of Common Shares for which the Company has filed a Prospectus (as defined below).
“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any kind.
“Principal Market”
means The Nasdaq Global Market or such other national securities exchange on which the Common Shares, including any Shares, are then listed.
“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Selling Commission”
means three percent (3.0%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the Company
and the Agent with respect to any Shares sold pursuant to this Agreement.
“Settlement
Date” means the first business day following each Trading Day during the period set forth in the Issuance Notice on which
Shares are sold pursuant to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold on such Trading Day
and the Agent shall deliver to the Company the Issuance Price received on such sales.
“Shares”
means the Company’s Common Shares issued or issuable pursuant to this Agreement.
“Trading Day”
means any day on which the Principal Market is open for trading.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date (as defined below) and (5) as of each Time of Sale (as defined below) (each
of the times referenced above is referred to herein as a “Representation Date”), except as may be disclosed in the
Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:
(a) Registration
Statement. The Company has prepared and will file with the Commission an “automatic shelf registration statement” as defined
under the Securities Act on Form S-3 that contains a base prospectus. Such registration statement registers the issuance and
sale by the Company of the Shares under the Securities Act. The Company may file one or more additional registration statements from time
to time that will contain a base prospectus and related prospectus or prospectus supplement, if applicable, with respect to the Shares,
including pursuant to Rule 462(b) under the Securities Act (any such registration statement filed pursuant to Rule 462(b),
a “Rule 462(b) Registration Statement”). Except where the context otherwise requires, such registration statement(s),
including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all financial statements,
exhibits and schedules thereto and all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of
Form S-3 under the Securities Act as from time to time amended or supplemented, is herein referred to as the “Registration
Statement,” and the prospectus constituting a part of such registration statement(s), together with any prospectus supplement
filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to a particular issuance of the Shares,
including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the
Securities Act, in each case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,”
except that if any revised prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that
is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus”
shall refer to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration Statement
at the time it originally became or becomes effective is herein called the “Original Registration Statement.” As used
in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus
shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof
that is or is deemed to be incorporated therein by reference.
All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed to be incorporated by reference in or otherwise deemed
under the Securities Act to be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of any specified
date; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include, without limitation, the filing of any document under the Exchange Act which is or is deemed to be incorporated by
reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the Prospectus,
as the case may be, as of any specified date. The Company’s obligations under this Agreement to furnish, provide or deliver or make
available copies of any report or statement shall be deemed satisfied if the same is filed with the Commission through its Electronic
Data Gathering, Analysis and Retrieval system (“EDGAR”).
At the time the Registration
Statement became or becomes effective and at the time the Company’s most recent annual report on Form 10-K was filed with the
Commission, if later, the Company met or will meet the then-applicable requirements for use of Form S-3 under the Securities Act.
During the Agency Period, each time the Company files an annual report on Form 10-K, the Company will meet the then-applicable requirements
for use of Form S-3 under the Securities Act.
(b) Compliance
with Registration Requirements. The Original Registration Statement became or will become effective on filing with the Commission
pursuant to Rule 462(e) under the Securities Act. The Company has complied to the Commission’s satisfaction with all requests
of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company, are contemplated or threatened by the Commission.
The Prospectus when filed
complied in all material respects with the Securities Act and, if filed with the Commission through EDGAR (except as may be permitted
by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Agent for use in connection with
the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto, at the time it became effective and at each Representation Date, complied and will comply in all material respects
with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. As of the date of this Agreement, the Prospectus and
any Free Writing Prospectus (as defined below) considered together (collectively, the “Time of Sale Information”) did
not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The Prospectus, as amended or supplemented, as of its date and
at each Representation Date, did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing
by the Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Agent to the Company
consists of the information described in Section 6 below. There are no contracts or other documents required to be described
in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. The Registration
Statement and the offer and sale of the Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act
and comply in all material respects with said rule.
(c) Free
Writing Prospectus. Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities
Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each Free Writing Prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by
or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of Rule 433
under the Securities Act including timely filing with the Commission or retention where required and legending, and each such Free Writing
Prospectus, as of its issue date and at each Representation Date through the completion of the issuance and sale of the Shares did not,
does not and will not include any information that conflicted, conflicts with or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference therein. Except for the Free Writing Prospectuses, if any,
and electronic road shows, if any, furnished to the Agent before first use, the Company has not prepared, used or referred to, and will
not, without the Agent’s prior consent, prepare, use or refer to, any Free Writing Prospectus.
(d) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, as applicable,
and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become effective and at each Time of Sale, as the case may be, will not contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Subsidiaries.
The Company operates under one legal entity, ArriVent BioPharma, Inc., without any subsidiary entities.
(g) No
Material Adverse Effect. Neither the Company nor any of its subsidiaries has, since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement and the Prospectus, (i) sustained any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree or (ii) entered into any transaction or agreement (whether or not in the ordinary course
of business) that is material to the Company and its subsidiaries or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries taken as a whole, in each case otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus,
there has not been (x) any change in the capital stock (other than as a result of (i) the exercise, if any, of stock options
or the award, if any, of stock options or restricted stock in the ordinary course of business pursuant to the Company’s equity plans
that are described in the Registration Statement and the Prospectus or (ii) the issuance, if any, of stock upon conversion of Company
securities as described in the Registration Statement and the Prospectus) or long-term debt of the Company or any of its subsidiaries
or (y) any Material Adverse Effect (as defined below); as used in this Agreement, “Material Adverse Effect” shall
mean any material adverse change or effect, or any development involving a prospective material adverse change or effect, in or affecting
(i) the business, properties, general affairs, management, financial position, stockholders’ equity, condition (financial or
otherwise), prospects and earnings or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth
or contemplated in the Registration Statement and the Prospectus, or (ii) the ability of the Company to perform its obligations under
this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Registration Statement
and the Prospectus.
(h) Title
to Properties. The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as do not
materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by it under valid,
subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and its subsidiaries.
(i) Incorporation
and Good Standing of the Company. Each of the Company and each of its subsidiaries has been (i) duly organized and is
validly existing and in good standing under the laws of its jurisdiction of organization, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Registration Statement and the Prospectus, and (ii) duly qualified
as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such qualification, except, in the case of this clause (ii), where
the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and each subsidiary of the Company has been listed in the Registration Statement.
(j) Capitalization
and Other Capital Stock Matters. The Company has an authorized capitalization as set forth in the Registration Statement and the Prospectus
and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable
and conform, in all material respects, to the description of the Common Shares contained in the Registration Statement and the Prospectus;
and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except, in the case of any foreign subsidiary, for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
(k) Authorization
of the Shares. The Shares to be issued and sold by the Company to the Agent hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable and
will conform to the description of the Common Shares contained in the Registration Statement and the Prospectus; and the issuance of the
Shares is not subject to any preemptive or similar rights that have not been complied with or otherwise effectively waived.
(l) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The issue and sale of the Shares and the compliance by the
Company with this Agreement and the consummation of the transactions contemplated in this Agreement and the Prospectus will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, except, in the case of this clause (i) for such defaults, breaches, or violations that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect, (ii) the certificate of incorporation or by-laws (or other
applicable organizational document) of the Company or any of its subsidiaries, or (iii) any statute or any judgment, order, rule or
regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their
properties except, in the case of this clause (iii) for such violations that would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act, the approval by the Financial
Industry Regulatory Authority (“FINRA”) of the terms and arrangements and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution
of the Shares by the Agent.
(m) Compliance
with Existing Instruments and Laws. Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of
incorporation or by-laws (or other applicable organizational document), (ii) in violation of any statute or any judgment, order,
rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, or (iii) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except, in the case of the foregoing clauses (ii) and (iii), for such defaults
as would not, individually or in the aggregate, have a Material Adverse Effect.
(n) Description
of Common Shares. The statements set forth in the Registration Statement and Prospectus under the caption “Description of Capital
Stock”, insofar as they purport to constitute a summary of the terms of the Common Shares, and under the caption “Plan of
Distribution”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete
and fair in all material respects.
(o) No
Material Actions or Proceedings. Other than as set forth in the Registration Statement and the Prospectus, there are no legal, governmental
or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending
to which the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company, is a party
or of which any property of the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the
Company, is the subject which, if determined adversely to the Company or any of its subsidiaries (or such officer or director), would
individually or in the aggregate have a Material Adverse Effect; and, to the Company’s knowledge, no such proceedings are threatened
or contemplated by governmental authorities or others; there are no current or pending Actions that are required under the Securities
Act to be described in the Registration Statement or the Prospectus that are not so described therein; and there are no statutes, regulations
or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described
in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration
Statement and the Prospectus.
(p) Company
Not an “Investment Company.” The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company
Act of 1940, as amended (the “Investment Company Act”).
(q) Ineligible
Issuer Status. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter
that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of
the Shares, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined under Rule 405
under the Act.
(r) Independent
Accountants. KPMG LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.
(s) Company’s
Accounting System. The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under
the Exchange Act) that (i) complies with the requirements of the Exchange Act, (ii) has been designed by the Company’s
principal executive officer and principal financial officer, or under their supervision, 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 (iii) is sufficient to provide reasonable assurance that (A) transactions are executed in accordance
with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (C) access to assets
is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and
the Company’s internal control over financial reporting is effective and other than as disclosed in the Registration Statement and
the Prospectus, the Company is not aware of any material weaknesses in its internal control over financial reporting (it being understood
that this subsection shall not require the Company to comply with Section 404 of the Sarbanes-Oxley Act of 2002, as amended and the
rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”) as of an earlier date than
it would otherwise be required to so comply under applicable law).
(t) Deficiencies
in or Changes to Internal Control Over Financial Reporting. Since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control
over financial reporting.
(u) Disclosure
Controls and Procedures. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures
are effective.
(v) This
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(w) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any
of its subsidiaries nor, to the knowledge of the Company, any agent, Affiliate or other person associated with or acting on behalf of
the Company or any of its subsidiaries has (i) made, offered, promised or authorized any unlawful contribution, gift, entertainment
or other unlawful expense (or taken any act in furtherance thereof); (ii) made, offered, promised or authorized any direct or indirect
unlawful payment; or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended,
or the rules and regulations thereunder, the Bribery Act 2010 of the United Kingdom or any other applicable anti-corruption, anti-bribery
or related law, statute or regulation (collectively, “Anti-Corruption Laws”); the Company and its subsidiaries has
conducted its businesses in compliance with Anti-Corruption Laws and has instituted and maintained and will continue to maintain policies
and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained
herein; neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance
of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in
violation of Anti-Corruption Laws.
(x) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with the
requirements of applicable anti-money laundering laws, including, but not limited to, the Bank Secrecy Act of 1970, as amended by the
USA PATRIOT ACT of 2001, and the rules and regulations promulgated thereunder, and the anti-money laundering laws of the various
jurisdictions in which the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or
similar rules, regulation or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(y) Sanctions.
Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any of its subsidiaries nor,
to the knowledge of the Company, any agent, Affiliate or other person associated with or acting on behalf of the Company or any of its
subsidiaries is (i) currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including,
without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, or the U.S. Department of State and including,
without limitation, the designation as a “specially designated national” or “blocked person,” the European Union,
His Majesty’s Treasury, the United Nations Security Council, or other relevant sanctions authority (collectively, “Sanctions”),
(ii) located, organized, or resident in a country or territory that is the subject or target of Sanctions, including, without limitation,
the so-called Donetsk People’s Republic, or so-called Luhansk People’s Republic or any other “Covered Region”
of Ukraine identified pursuant to Executive Order 14065, the Crimea, Kherson and Zaporizhia regions of Ukraine, Cuba, Iran, North
Korea and Syria (each a “Sanctioned Jurisdiction”), and the Company will not directly or indirectly use the proceeds
of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory,
that, at the time of such funding, is the subject or the target of Sanctions or (ii) in any other manner that will result in a violation
by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions;
neither the Company nor any of its subsidiaries is engaged in, or has, at any time in the past ten years, engaged in, any dealings or
transactions with or involving any individual or entity that was or is, as applicable, at the time of such dealing or transaction, the
subject or target of Sanctions or with any Sanctioned Jurisdiction; the Company and its subsidiaries have instituted, and maintains, policies
and procedures designed to promote and achieve continued compliance with Sanctions.
(z) Financial
Statements. The financial statements included or incorporated by reference in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly, in all material respects, the financial position of the Company and its subsidiaries
at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its subsidiaries
for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly
in accordance with GAAP the information required to be stated therein. The interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects
and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. The selected financial data
and the summary financial information included in the Registration Statement and the Prospectus present fairly, in all material respects,
the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein.
Except as included or incorporated by reference therein, no historical or pro forma financial statements or supporting schedules are required
to be included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act or the rules and
regulations promulgated thereunder. The pro forma consolidated financial statements of the Company and its subsidiaries and the related
notes thereto, if any, included in the Registration Statement or the Prospectus present fairly, in all material respects, the information
contained therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures
contained in the Registration Statement and the Prospectus that constitute non-GAAP financial measures (as defined by the rules and
regulations under the Securities Act and the Exchange Act) comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, as applicable.
(aa) Intellectual
Property Rights. To the Company’s knowledge, the Company and its subsidiaries own or possess valid and enforceable licenses
to, all patents, patent applications, copyrights, know how, trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary or material to conduct the business as currently conducted or proposed to be conducted
as described in the Registration Statement and the Prospectus (collectively, the “Disclosure Documents”) (“Company
Intellectual Property”). To the Company’s knowledge, except as disclosed in the Disclosure Documents, the conduct of its
businesses in the manner described in the Disclosure Documents does not and will not infringe, misappropriate, dilute or otherwise violate
any Intellectual Property rights of third parties except any such infringement or misappropriation as would not, individually or in the
aggregate, result in a Material Adverse Effect. There is no pending or threatened action, suit, proceeding or claim by others (A) challenging
the Company’s rights in or to any Company Intellectual Property or (B) challenging the validity, enforceability or scope of
any Company Intellectual Property, except in each case (A) and (B), any such action, suit, proceeding or claim would not, individually
or in the aggregate, result in a Material Adverse Effect. To the Company’s knowledge, the Company Intellectual Property has 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. The Company Intellectual Property has been duly maintained and,
is subsisting, and to the Company’s knowledge, is valid and enforceable (other than pending applications for registration) and free
of material defects in connection with the filing and prosecution thereof. Except as disclosed in the Disclosure Documents: (1) the
Company and each of its subsidiaries are the sole owners of the Company Intellectual Property owned by them and have the valid and enforceable
right to use such Intellectual Property without the obligation to obtain consent to sublicense and without a duty of accounting to co-owner,
as applicable; and (2) no government funding, facilities or resources of a university, college, other educational institution or
research center was used in the development of any Intellectual Property that is owned or purported to be owned by the Company or any
of its subsidiaries that would confer any governmental agency or body, university, college, other educational institution or research
center any claim or right of ownership to any such Intellectual Property. Except as disclosed in the Disclosure Documents, the Company
and its subsidiaries are not obligated to pay a material royalty, grant a license or option, or provide other material consideration to
any third party in connection with the Company Intellectual Property. To the Company’s knowledge: a) there are no third parties
who have rights to any Company Intellectual Property, except for customary reversionary rights of third-party licensors with respect to
Company Intellectual Property that is disclosed in the Disclosure Documents as licensed to the Company and its subsidiaries; and b) there
is no infringement, misappropriation, dilution, or other violation by third parties of any Company Intellectual Property. To the Company’s
knowledge, the Company and its subsidiaries have complied with the terms of each agreement pursuant to which Company Intellectual Property
has been licensed to the Company, and all such agreements are in full force and effect. The Company and its subsidiaries have taken all
reasonable steps necessary to secure assignments to its title, rights and interests in and to the Company Intellectual Property owned
by the Company from all employees, consultants, agents and contractors engaged in the development of the Intellectual Property on behalf
of the Company and its subsidiaries, including requiring all such employees, consultants, agents and contractors to execute appropriate
invention assignment agreements to assign all of their right, title and interest in and to such Intellectual Property to the Company and
its subsidiaries, and to the Company’s knowledge, no such agreement has been breached or violated, except as would not, individually
or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries have taken all reasonable and customary steps
to protect, maintain and safeguard the Company Intellectual Property, including by implementation of physical and cyber security measures
and the execution of appropriate employment contracts, patent disclosure agreements, non-competition agreements, non-solicitation agreements,
nondisclosure agreements, and confidentiality agreements with their employees, and to the Company’s knowledge no employee of the
Company or any of its subsidiaries is in or has been in violation of any term of, such agreements 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, except as would not,
individually or in the aggregate, result in a Material Adverse Effect. To the Company’s knowledge, the Company, its subsidiaries
and the parties prosecuting such applications have complied or are in the process of complying with their duty of candor and disclosure
to the U.S. Patent and Trademark Office (the “USPTO”), and all such requirements in the relevant foreign patent authority
having similar requirements as the case may be, in connection with such patents and patent applications for which it has filing, prosecution
and/or maintenance responsibilities. To the Company’s knowledge: a) there is no patent or patent application that contains claims
that would subject the Company Intellectual Property to a proceeding under 35 U.S.C. § 135 and 37 C.F.R. 41.100 to 41.208; and b)
there is no prior art or public or commercial activity or other facts required to be disclosed to the USPTO and any relevant foreign patent
authority that were not (or are not in the process of being) disclosed and which would preclude the grant of a patent in connection with
any such application or would reasonably be expected to form the basis of a finding of invalidity or unenforceability with respect to
any patents that have been issued with respect to such applications. The Company expects the product candidates described in the Disclosure
Documents as under development by the Company and its subsidiaries to fall within the scope of the claims of one or more patents or patent
applications owned or licensed by the Company, as described in the Disclosure Documents.
(bb) No
Labor Disputes. (i) No labor disturbance by or dispute with current or former employees or officers of the Company or any of
its subsidiaries exists or, to the Company’s knowledge, is contemplated or threatened, and (ii) Neither the Company nor any
of its subsidiaries is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the Company and
its subsidiaries’ principal suppliers, manufacturers, customers or contractors that would, in each case, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the Company and its subsidiaries taken as a whole. Neither the Company nor
any of its subsidiaries is a party to any collective bargaining agreement.
(cc) ERISA
Compliance. Except as would not reasonably be expected to have a Material Adverse Effect (i) each employee benefit plan, within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
whether or not subject to ERISA, for which the Company, its subsidiaries or any member of its “Controlled Group” (defined
as (A) any organization which is a member of a controlled group of corporations or considered under common control and treated as
one employer with the Company within the meaning of Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986,
as amended (the “Code”) or (B) any entity, whether or not incorporated, that is under common control with the
Company within the meaning of Section 4001(a)(14) of ERISA)) would have any actual or contingent liability (each, a “Plan”)
has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative
exemption; and (iii) neither the Company, its subsidiaries nor any member of the Controlled Group has incurred, nor reasonably expects
to incur, any liability under Title IV of ERISA.
(dd) Cybersecurity;
Compliance with Data Privacy Laws. The Company and its 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
its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and
other corruptants; the Company and its subsidiaries have implemented and maintained reasonable controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”))
used in connection with its businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same,
except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents
under internal review or investigations relating to the same; the Company and its subsidiaries are presently in compliance in all material
respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(ee) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act)
included or incorporated by reference in any of the Registration Statement or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(ff) Statistical
and Market-Related Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical
and market-related data included in each of the Registration Statement and the Prospectus is not based on or derived from sources that
are reliable and accurate in all material respects.
(gg) 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 provision of the Sarbanes-Oxley Act, including Section 402 related to loans and Sections 302 and 906
related to certifications.
(hh) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the price of the Common Shares
or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”))
with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which
would directly or indirectly violate Regulation M.
(ii) All
Necessary Permits, etc. The Company and each of its subsidiaries have such permits, licenses, approvals, consents, franchises,
certificates of need and other approvals or authorizations of governmental or regulatory authorities (“Permits”) as
are necessary under applicable law to own its properties and conduct its current business in the manner described in the Registration
Statement and the Prospectus, except for any of the foregoing that would not, individually or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received written notice of any proceedings related to the revocation or modification
of any such Permits that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(jj) Insurance.
The Company and its subsidiaries, taken as a whole, are insured against such losses and risks and in such amounts as are prudent and customary
in the businesses in which it is engaged and as required by law.
(kk) Emerging
Growth Company Status. From the time of the Company’s initial public offering through the date hereof, the Company has been
and is an “emerging growth company” as defined in Section 2(a)(19) of the Act.
(ll) Compliance
with Health Care Laws. The Company and its subsidiaries (i) have operated and currently operates its business in compliance in
all material respects with all applicable Health Care Laws (as defined below) and any other applicable requirements of the Food and Drug
Administration (“FDA”), the Department of Health and Human Services (“HHS”) and any comparable state,
local or foreign regulatory authority to which its business and operations are subject (collectively, “Regulatory Authorities”);
(ii) have not received any FDA Form-483, written notice of adverse finding, warning letter, untitled letter or other written notice
or correspondence from any court or arbitrator or governmental or Regulatory Authority alleging or asserting material non-compliance with
(A) any applicable Health Care Laws or (B) or any licenses, certificates, approvals, clearances, exemptions, registrations,
authorizations, certificates, permits and supplements or amendments thereto required pursuant any such applicable Health Care Laws (“Regulatory
Authorizations”); (iii) possess such valid and current Regulatory Authorizations required to conduct its business as currently
conducted, and is not in violation, in any material respect, of any term of any such Regulatory Authorizations; (iv) have not received
written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental
authority or Regulatory Authority or any other third party alleging that any product, operation or activity is in material violation of
any applicable Health Care Laws or Regulatory Authorizations and has no knowledge that any Regulatory Authority, governmental authority,
or any other third party has threatened any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) have
not received written notice that any Regulatory Authority has taken, is taking or intends to take action to limit, suspend, modify or
revoke any material Regulatory Authorizations and have no knowledge that any applicable Regulatory Authority is threatening such action;
(vi) have no knowledge of any event that has occurred which allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the holder of any material Regulatory Authorization; (vii) have
filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any applicable Health Care Laws or Regulatory Authorizations and all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date
filed (or were materially corrected or supplemented by a subsequent submission); (viii) are not parties to or have any ongoing reporting
obligations pursuant to any corporate integrity agreements, deferred or non-prosecution agreements, monitoring agreements, consent decrees,
settlement orders, plans of correction or similar agreements with or imposed by any applicable Regulatory Authority; and (ix) along
with their employees, officers and directors, and, to the Company’s knowledge, agents, has not been excluded, suspended or debarred
from participation in any government 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. The term “Health Care Laws” means all Health Care Laws related to the research, investigation, development,
production, testing, packaging, labeling, distribution, storage, shipping, transport, marketing, advertising, promotion, sale, export,
import, use, handling, control, safety, efficacy, reliability or manufacturing of pharmaceutical products, including, without limitation,
Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh (the Medicare statute), Title XIX of the Social Security Act,
42 U.S.C. §§ 1396-1396v (the Medicaid statute), and any other law pertaining to or governing a government healthcare program;
the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the civil False Claims Act, 31 U.S.C. §§ 3729 et seq.; the
criminal false statements law, 42 U.S.C. 1320a-7b(a); any criminal laws relating to health care fraud and abuse, including but not limited
to 18 U.S.C. Sections 286, 287, 1035, 1347 and 1349 and the health care fraud criminal provisions under the Health Insurance Portability
and Accountability Act of 1996, 42 U.S.C. §§ 1320d et seq., (“HIPAA”); the Civil Monetary Penalties Law,
42 U.S.C. §§ 1320a-7a and 1320a-7b; the Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h; the Exclusion Laws, 42 U.S.C.
§ 1320a-7; HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. §§ 17921
et seq.; the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq.; the regulations promulgated pursuant to such laws;
and any comparable foreign, federal, state and local laws and regulations.
(mm) Clinical
Data and Regulatory Compliance. All clinical trials and pre-clinical studies and tests conducted by or on behalf of
or sponsored by the Company or any of its subsidiaries, or in which the Company or any of its subsidiaries have participated with respect
to its product candidates, including without limitation any such studies, tests and trials that are described in the Registration Statement
and the Prospectus, or the results of which are referred to in the Registration Statement and the Prospectus, as applicable, were, and
if still pending are, being conducted in all material respects in accordance with all applicable Health Care Laws, Regulatory Authorizations
and any applicable rules, regulations, protocols and policies to which such studies, tests or trials are subject. The descriptions of
the results from such studies, tests and trials contained in the Registration Statement and the Prospectus are accurate in all material
respects, and the Company has no knowledge of any other studies, tests or trials not described in the Registration Statement and the Prospectus,
the results of which are inconsistent with or reasonably call into question the results described or referred to in the Registration Statement
and the Prospectus. Neither the Company nor any of its subsidiaries has received any written notices, correspondence or other written
communications from any Regulatory Authority, institutional review board or other entity having authority over the conduct of such studies,
tests, or trials requiring or threatening the termination, material modification or suspension of such studies, tests or trials, other
than ordinary course communications with respect to modifications in connection with the design and implementation of such studies, tests
or trials, and, to the Company’s knowledge, there are no reasonable grounds for the same.
(nn) Other
Underwriting 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.
(oo) Well-Known
Seasoned Issuer. (i) At the original effectiveness of the Registration Statement, (ii) at the time of the most recent amendment
thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment or incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or in the form of a prospectus),
and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under
the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act, the
Company was and is a “well-known seasoned issuer” (as defined in Rule 405).
(pp) Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed
on the Principal Market, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration
of the Common Shares under the Exchange Act or delisting the Common Shares from the Principal Market, nor has the Company received any
notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of the Principal Market.
(qq) Tax
Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise tax returns
or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them 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 2(z) above
in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or
any of its subsidiaries has not been finally determined.
(rr) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries
or any other person required to be described in the Registration Statement or the Prospectus which have not been described as required.
(ss) FINRA
Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel, its officers and directors
and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection with the offering
of the Shares is true, complete, correct and compliant with FINRA rules and any letters, filings or other supplemental information
provided to FINRA pursuant to FINRA Rules is true, complete and correct.
(tt) Compliance
with Environmental Laws. Except as described in the Prospectus and except as could not be expected, individually or in the aggregate,
to result in a Material Adverse Effect; (i) neither the Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection
of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (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 its subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their requirements, (iii) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (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 body or agency, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(uu) Brokers.
Except as otherwise disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
Any certificate signed by
any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent in connection
with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby
on the date of such certificate.
The Company acknowledges that
the Agent and, for purposes of the opinions to be delivered pursuant to Section 4(o) hereof, counsel to the Company and
counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 3. ISSUANCE AND SALE OF COMMON SHARES
(a) Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through the Agent, acting
as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency Period.
(b) Mechanics
of Issuances.
(i) Issuance
Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period on which the conditions
set forth in Section 5(a) and Section 5(b) shall have been satisfied, the Company may exercise
its right to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however, that (A) in no
event may the Company deliver an Issuance Notice to the extent that the sum of (x) the aggregate Sales Price of the requested Issuance
Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected pursuant to this Agreement,
would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period set forth for any previous
Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered on the Trading Day that it is
received by e-mail to the persons set forth in Schedule A hereto and confirmed by the Company by telephone (including a voicemail
message to the persons so identified), with the understanding that, with adequate prior written notice, the Agent may modify the list
of such persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice, the Agent
will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares with respect to
which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified in, the Issuance Notice,
unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of
this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance Notice at any time provided they both
agree in writing to any such modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company;
(B) as block transactions; or (C) by any other method permitted by law deemed to be an “at the market offering”
as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or sales made into
any other existing trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to
the method of offer and sale specified in the preceding sentence, and (except as specified in clauses (A) and (B) above) the
method of placement of any Shares by the Agent shall be at the Agent’s discretion.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than the opening
of the Trading Day next following the Trading Day on which it has placed Shares hereunder setting forth the number of shares sold on such
Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.
(v) Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions of
Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Agent or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal
At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt
of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, the Agent will
deliver, by wire transfer of immediately available funds, the related Issuance Price in same day funds delivered to an account designated
by the Company prior to the Settlement Date. The Company may sell Shares to the Agent as principal at a price agreed upon at each relevant
time Shares are sold pursuant to this Agreement (each, a “Time of Sale”).
(vi) Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to the other
party hereto in writing (including by email correspondence to each of the individuals of the other party whose names are set forth on
Schedule A hereto) or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and the period set
forth in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and termination shall
not affect or impair either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt of such
notice; (B) if the Company suspends or terminates any sale of Shares after the Agent confirms such sale to the Company, the Company
shall still be obligated to comply with Section 3(b)(v) with respect to such Shares; and (C) if the Company
defaults in its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold the Agent harmless against any
loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company. The parties hereto acknowledge and agree that, in performing its obligations
under this Agreement, the Agent may borrow Common Shares from stock lenders in the event that the Company has not delivered Shares to
settle sales as required by subsection (v) above, and may use the Shares to settle or close out such borrowings. The Company agrees
that no such notice shall be effective against the Agent unless it is made to the persons identified in writing by the Agent pursuant
to Section 3(b)(i).
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful
in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does not sell Shares;
and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise
specifically agreed by the Agent and the Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company shall
not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period in which the
Company is in possession of material non-public information.
(c) Fees.
As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date, the Selling Commission for
the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi)) by
the Agent deducting the Selling Commission from the applicable Issuance Amount.
(d) Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and
delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent
of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares;
(iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors;
(v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Prospectus or any Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements thereto, and this Agreement;
(vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Agent in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Shares for offer and sale under the state securities
or blue sky laws or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing a “Blue
Sky Survey” or memorandum and a “Canadian wrapper” and any supplements thereto, advising the Agent of such qualifications,
registrations, determinations and exemptions; (vii) the reasonable and documented fees and disbursements of the Agent’s counsel,
including the reasonable and documented fees and expenses of counsel for the Agent in connection with, FINRA review, if any, and
approval of the Agent’s participation in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA
review, if any; (ix) all fees, expenses and disbursements relating to background checks of the Company’s directors, director
nominees and executive officers; (x) the costs and expenses of the Company relating to investor presentations on any “road
show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated
with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives, employees and officers of the Company and of the Agent and any such consultants, and the
cost of any aircraft chartered in connection with the road show; and (xi) the fees and expenses associated with listing the Shares
on the Principal Market. The fees and disbursements of Agent’s counsel pursuant to subsections (vi) and (vii) above shall
not exceed (A) $75,000 in connection with execution of this Agreement, (B) $25,000 in connection with each Triggering Event
Date on which the Company is required to provide a certificate pursuant to Section 4(o) and (C) $40,000 for each
program “refresh” (i.e. the filing of a new registration statement, prospectus or prospectus supplement relating to the Shares
and/or an amendment of this Agreement) in connection with this Agreement.
Section 4. ADDITIONAL COVENANTS
The Company covenants and
agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a) Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K,
a summary detailing, for the relevant reporting period, (1) the number of Shares sold, if any, through the Agent pursuant to this
Agreement and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing,
or include in such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”),
such summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under
the Securities Act), provided that the choice of method described in this Section 4(a)(ii)(A) or (B) shall be in the Company’s
sole discretion.
(b) Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or supplement
to the Prospectus, any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to the Registration
Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule 462(b) Registration
Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use of any Free Writing Prospectus
or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Shares from any securities
exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain
the lifting of such order as soon as practicable. Additionally, the Company agrees that it shall comply with the provisions of Rule 424(b) and
Rule 433, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company
under such Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(c) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel for the Agent it is otherwise necessary to amend
or supplement the Prospectus to comply with applicable law, including the Securities Act, the Company agrees (subject to Section 4(d) and
4(f)) to promptly prepare, file with the Commission and furnish at its own expense to the Agent, amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law including the Securities
Act. Neither the Agent’s consent to, or delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s
obligations under Sections 4(d) and 4(f). Notwithstanding the foregoing, the Company shall not be required to file such amendment
or supplement if there is no pending Issuance Notice and the Company believes that it is in the best interest of the Company not to file
such amendment or supplement.
(d) Agent’s
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement (including any registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement through
incorporation of any report filed under the Exchange Act), insofar as such proposed amendment or supplement relates to the Shares, the
Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy
of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement without
the Agent’s prior consent, and the Company shall file with the Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such Rule, provided, 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.
(e) Use
of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed, or will prepare, use,
refer to or distribute, without the other party’s prior written consent, any “written communication” that
constitutes a “free writing prospectus” as such terms are defined in Rule 405 under
the Securities Act with respect to the offering contemplated by this Agreement (any such free
writing prospectus being referred to herein as a “Free Writing Prospectus”).
(f) Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of
filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto to be prepared by or on
behalf of, used by, or referred to by the Company and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Agent’s consent. The Company shall furnish to the Agent, without charge, as many
copies of any free writing prospectus prepared by or on behalf of, or used by the Company, as the Agent may reasonably request. If at
any time when a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered
in connection with sales of the Shares (but in any event if at any time through and including the date of this Agreement) there occurred
or occurs an event or development as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to
by the Company conflicted or would conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company shall promptly amend or supplement such
free writing prospectus to eliminate or correct such conflict or so that the statements in such free writing prospectus as so amended
or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at such subsequent time, not misleading, as the case may be; provided,
however, that prior to amending or supplementing any such free writing prospectus, the Company shall furnish to the Agent for review,
a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free
writing prospectus and the Company shall not file, use or refer to any such amended or supplemented free writing prospectus without the
Agent’s consent.
(g) Filing
of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agent or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Agent that the Agent otherwise would not have been required to file thereunder.
(h) Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required by
the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares,
the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement and each amendment
thereto, and with copies (which may be electronic copies) of the Prospectus and each amendment or supplement thereto in the form in which
it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities
as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under
the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any period set forth
in an Issuance Notice in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, to notify the Agent and to request that the Agent suspend offers to sell Shares (and, if so notified, the Agent shall
cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Prospectus
as then amended or supplemented, to advise the Agent promptly by telephone (with confirmation in writing) and to prepare and cause to
be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance; provided, however, that if during such same period the Agent is
required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission
such an amendment or supplement.
(i) Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares for sale under
(or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws of those jurisdictions
designated by the Agent, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take
any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company will advise the Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal thereof as soon as practicable.
(j) Earnings
Statement. As soon as practicable, the Company will make generally available to its security holders and to the Agent an earnings
statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of the Company
occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act; provided that the Company will be deemed to have furnished such statement to its security holders and
the Agent to the extent such statement is filed with Commission on EDGAR or any successor system.
(k) Listing;
Reservation of Shares. (a) The Company will maintain the listing of the Shares on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its
obligations under this Agreement.
(l) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(m) Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review conducted
by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during normal business hours and at the Company’s principal offices, as the Agent
may reasonably request from time to time.
(n) Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement Date
shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as the case may be,
as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and (ii) an undertaking that the Company will advise the Agent if any of such representations
and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Issuance Notice, as though made
at and as of each such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented relating to such Shares).
(o) Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and, during
the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means
of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration
Statement or Prospectus;
(B) the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A
or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K
or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than information
“furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any such event, a “Triggering Event
Date”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines
that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering
Event Date, in the form 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,
(A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct, (B) confirming
that the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and as to
the matters set forth in Section 5(a)(iii) hereof, and (C) containing any other certification that the Agent
shall reasonably request. The requirement to provide a certificate under this Section 4(o) shall be waived for any Triggering
Event Date occurring at a time when no Issuance Notice is pending or a suspension is in effect, which waiver shall continue until the
earlier to occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter shall
be considered a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company subsequently
decides to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the Agent with a certificate
under this Section 4(o), then before the Company delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant
to such instructions, the Company shall provide the Agent with a certificate in conformity with this Section 4(o) dated as of
the date that the instructions for the sale of Shares are issued.
(p) Legal
Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the
date of this Agreement, a negative assurances letter and the written legal opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel to the Company, Latham & Watkins LLP, counsel to the Agent, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
intellectual property counsel to the Company, each dated the date of delivery, in form and substance reasonably satisfactory to Agent
and its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate
to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, the Company shall be required to
furnish no more than one of each such opinion and negative assurance letter hereunder in connection with the filing of each of its annual
reports on Form 10-K and each of its quarterly reports on Form 10-Q. In lieu of such opinions for subsequent periodic filings,
in the discretion of the Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the Agent to rely
on a previously delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of such
Triggering Event Date).
(q) Comfort
Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which the
Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the date
of this Agreement, the Company shall cause KPMG LLP, the independent registered public accounting firm who has audited the financial statements
included or incorporated by reference in the Registration Statement, to furnish the Agent a comfort letter, dated the date of delivery,
in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form previously provided to the
Agent and its counsel; provided, however, that any such comfort letter will only be required on the Triggering Event Date specified to
the extent that it contains financial statements filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated
by reference into the Prospectus. If requested by the Agent, the Company shall also cause a comfort letter to be furnished to the Agent
on the date of occurrence of any material transaction or event requiring the filing of a current report on Form 8-K containing material
amended financial information of the Company, including the restatement of the Company’s financial statements. The Company shall
be required to furnish no more than one comfort letter hereunder per annual report on Form 10-K or Form 10-K/A and quarterly
report on Form 10-Q or Form 10-Q/A filed by the Company.
(r) Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding
the date of this Agreement, the Company shall furnish the Agent a certificate executed by the Secretary of the Company, signing in such
capacity, dated the date of delivery (i) certifying that attached thereto are true and complete copies of the resolutions duly adopted
by the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby (including, without limitation, the issuance of the Shares pursuant to this Agreement), which authorization shall
be in full force and effect on and as of the date of such certificate, (ii) certifying and attesting to the office, incumbency, due
authority and specimen signatures of each Person who executed this Agreement for or on behalf
of the Company, and (iii) containing any other certification that the Agent shall reasonably request.
(s) Agent’s
Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with applicable law, in the Common Shares
for the Agent’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
(t) Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such
a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
(u) Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate the sale
or resale of the Shares or otherwise, and the Company will, and shall cause each of its Affiliates to, comply with all applicable provisions
of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to
the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly
upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause each of its Affiliates
to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by
the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements set forth in Section (d) of
Rule 102.
(v) Notice
of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, (i) offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for
Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, during the period beginning
on the third Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Agent hereunder and ending on
the third Trading Day immediately following the Settlement Date with respect to Shares sold pursuant to such Issuance Notice; (ii) effect
a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the outstanding Common
Shares; or (iii) enter into 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 Shares (other than the Shares offered pursuant to this Agreement)
or securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire, Common Shares prior to
the termination of this Agreement; provided, however, that such restrictions will not be required in connection with the Company’s
(A) issuance or sale of Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or
other equity awards pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan, long-term
incentive plan, dividend reinvestment plan, inducement award under the Principal Market rules or other compensation plan of the Company
or its subsidiaries, as in effect on the date of this Agreement, (B) issuance or sale of Common Shares issuable upon exchange, conversion
or redemption of securities or the exercise or vesting of warrants, options or other equity awards outstanding at the date of this Agreement,
(C) modification of any outstanding options, warrants of any rights to purchase or acquire Common Shares, and (D) issue Common
Shares, or any securities convertible into, or exercisable, or exchangeable for Common Shares, or enter into an agreement to issue Common
Shares, or any securities convertible into or exercisable or exchangeable for Common Shares, in connection with any merger, joint venture,
strategic alliance, commercial or other collaborative transaction, or the acquisition or license of the business, property, technology
or other assets of another individual or entity, or the assumption of an employee benefit plan in connection with such a merger or acquisition,
provided, however, that the aggregate number of Common Shares, or securities convertible into or exercisable or exchangeable for Common
Shares, that the Company may issue or agree to issue pursuant to this clause (D) shall not exceed 5.0% of the total outstanding Common
Shares immediately following such issuance.
Section 5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO
SETTLEMENT
(a) Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell Shares. The right of the
Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance Notice, and the
obligation of the Agent to use its commercially reasonable efforts to place Shares during the applicable period set forth in the Issuance
Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in the Issuance Notice, of each of the
following conditions:
| (i) | Accuracy of the Company’s Representations and Warranties; Performance by the Company. The
Company shall have delivered the certificate required to be delivered pursuant to Section 4(o) on or before the date
on which delivery of such certificate is required pursuant to Section 4(o). The Company shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior to such date, including, but not limited to, the covenants contained in Section 4(m), Section 4(n) and
Section 4(o). |
| (ii) | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of
the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or
materially adversely affecting any of the transactions contemplated by this Agreement. |
| (iii) | Material Adverse Effect. Except as disclosed in the Prospectus and the Time of Sale Information,
(a) in the judgment of the Agent there shall not have occurred any Material Adverse Effect; and (b) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries
by any “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62)
of the Exchange Act. |
| (iv) | No Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common
Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market or FINRA and the
Common Shares (including without limitation the Shares) shall have been approved for listing or quotation on and shall not have been delisted
from the Principal Market or any of its constituent markets. There shall not have occurred (and be continuing in the case of occurrences
under clauses (i) and (ii) below) any of the following: (i) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the Principal Market or trading in securities generally on either the Principal
Market shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges
by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York, authorities;
or (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity,
or any change in the United States or international financial markets, or any substantial change or development involving a prospective
substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent
is material and adverse and makes it impracticable to market the Shares in the manner and on the terms described in the Prospectus or
to enforce contracts for the sale of securities. |
(b) Documents
Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially reasonable efforts to
place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the Issuance Notice Date of a certificate
in form and substance reasonably satisfactory to the Agent, executed by the President and Chief Executive Officer or
Chief Financial Officer of the Company, to the effect that all conditions to the delivery of such Issuance Notice shall have been
satisfied as at the date of such certificate (which certificate shall not be required if the foregoing representations shall be set forth
in the Issuance Notice).
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement, the Prospectus or
the Time of Sales Information, 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.
Section 6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification
of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees, and each person, if any, who
controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which the Agent or such officer, employee or controlling person may become subject, under the Securities Act, the Exchange
Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered
or sold or at common law or otherwise (including in settlement of any litigation), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) any untrue statement or alleged untrue statement of a material
fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
or (iii) any act or failure to act or any alleged act or failure to act by the Agent in connection with, or relating in any manner
to, the Common Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause (i) or (ii) above, provided that the Company shall
not be liable under this clause (iii) to the extent that a court of competent jurisdiction shall have determined by a final judgment
that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be
taken by the Agent through its bad faith or willful misconduct, and to reimburse the Agent and each such officer, employee and controlling
person for any and all documented expenses (including the reasonable and documented fees and disbursements of counsel chosen by the Agent)
as such expenses are reasonably incurred by the Agent or such officer, employee or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished
by the Agent to the Company consists of the information set forth in the first sentence of the ninth paragraph under
the caption “Plan of Distribution” in the Prospectus. The indemnity agreement set forth in this Section 6(a) shall
be in addition to any liabilities that the Company may otherwise have.
(b) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 6 or to the extent it is not prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election
so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any reasonable and documented legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the fees and expenses of more than one separate counsel (together with local counsel), representing the indemnified parties who are
parties to such action), which counsel (together with any local counsel) for the indemnified parties shall be selected by the Agent (in
the case of counsel for the indemnified parties referred to in Section 6(a) above), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for
the indemnified party at the expense of the indemnifying party, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party and shall be paid as they are incurred.
(c) Settlements.
The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 6(b) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request; and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action, suit or proceeding.
(d) Contribution.
If the indemnification provided for in this Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Agent, on the other hand, from the offering of the Shares pursuant to this
Agreement; or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Agent, on the other hand, in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Agent, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total gross proceeds from the offering of the Shares (before deducting expenses)
received by the Company bear to the total commissions received by the Agent. The relative fault of the Company, on the one hand, and the
Agent, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one
hand, or the Agent, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(b), any reasonable and documented legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 6(b) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 6(d);
provided, however, that no additional notice shall be required with respect to any action for which notice has been given under
Section 6(b) for purposes of indemnification.
The Company and the Agent agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable considerations referred to in this Section 6(d).
Notwithstanding the provisions
of this Section 6(d), the Agent shall not be required to contribute any amount in excess of the agent fees received by the
Agent in connection with the offering contemplated hereby. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6(d), each officer and employee of the Agent and each person, if any, who controls the Agent within the meaning
of the Securities Act or the Exchange Act shall have the same rights to contribution as the Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 7. TERMINATION & SURVIVAL
(a) Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement
until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section 7.
(b) Termination;
Survival Following Termination.
| (i) | Either party may terminate this Agreement prior to the end of the Agency Period, by giving written notice
as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company
terminates this Agreement after the Agent confirms to the Company any sale of Shares, the Company shall remain obligated to comply with
Section 3(b)(v) with respect to such Shares and (B) Section 2, Section 6,
Section 7 and Section 8 shall survive termination of this Agreement. If termination shall occur prior
to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. |
| (ii) | In addition to the survival provision of Section 7(b)(i),
the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the Agent
set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf
of the Agent or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and,
anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination
of this Agreement. |
Section 8. MISCELLANEOUS
(a) Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
as soon as practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K, with
this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and the Company
shall consult with the Agent prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts, acting
in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto shall
issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports filed with
the Commission pursuant to the Exchange Act) related to this Agreement or any of the transactions contemplated hereby without the prior
written approval of the other party hereto, except as may be necessary or appropriate in the reasonable opinion of the party seeking to
make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public statement
is so required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the parties shall
use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably satisfactory
to all parties hereto.
(b) No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this
Agreement, including the determination of any fees, are arm’s-length commercial transactions between the Company and the Agent,
and do not constitute a recommendation, investment advice, or solicitation of any action by the Agent, (ii) when acting as a principal
under this Agreement, the Agent is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its
stockholders, creditors, employees or any other party, (iii) the Agent has not assumed nor will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether the
Agent has advised or is currently advising the Company on other matters) and the Agent does not have any obligation to the Company with
respect to the transactions contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Agent and
its respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company,
(v) the Agent has not provided any legal, accounting, financial, regulatory, investment or tax advice with respect to the transactions
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate,
and (vi) none of the activities of the Agent in connection with the transactions contemplated herein constitutes a recommendation,
investment advice or solicitation of any action by the Agent with respect to any entity or natural person.
(c) Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required to and
should be independent from their respective investment banking divisions and are subject to certain regulations and internal policies,
and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions. The Company
understands that the Agent is a full service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notices.
All communications hereunder, unless otherwise specified, shall be in writing and shall be mailed, hand delivered or telecopied and confirmed
to the parties hereto as follows:
If to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 619-4437
Attention: General Counsel
with a copy (which shall not constitute
notice) to:
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, CA 92130
Attention: Michael E. Sullivan and Nathan Ajiashvili
If to the Company:
ArriVent BioPharma, Inc.
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Attention: General Counsel
with a copy (which shall not constitute
notice) to:
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
One Financial Center
Boston, MA 02111
Attention: John Rudy and Nishant Dharia
Any party hereto may change the address for receipt
of communications by giving written notice to the others in accordance with this Section 8(d).
(e) Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 6, and in each case their respective successors, and no other
person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Shares as
such from the Agent merely by reason of such purchase.
(f) Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
(g) Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable
to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the Borough
of Manhattan in the City of New York or the courts of the State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
(h) General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic delivery of a portable document
format (PDF) file (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act,
the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com). This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit. The Article and Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
[Signature Page Immediately Follows]
If the foregoing is in accordance
with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms
| |
Very truly yours, |
| |
|
| |
ARRIVENT BIOPHARMA, INC. |
| |
|
| |
By: |
/s/
Winston Kung |
| |
|
Name: Winston Kung |
| |
|
Title: Chief Financial Officer |
The foregoing Agreement is hereby confirmed and
accepted by the Agent in New York, New York as of the date first above written.
| JEFFERIES LLC |
|
| |
|
| By: |
/s/ Michael Magarro |
|
| |
Name: Michael Magarro |
|
| |
Title: Managing Director |
|
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale Agreement
between ArriVent BioPharma, Inc. (the “Company”) and Jefferies LLC (the “Agent”) dated as of
February 3, 2025. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied as of the date hereof.
Date of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
Issuance Amount (equal to the total Sales Price for such Shares):
| Number of days in selling period: |
|
|
| |
| First date of selling period: |
|
|
| |
| Last date of selling period: |
|
|
| |
| Settlement Date(s) if other than standard T+1 settlement: |
|
Floor Price Limitation (in no event less than
$1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion): $ _____ per
share
Schedule A
Notice Parties
The Company
Winston Kung
The Agent
Michael Magarro
Donald Lynaugh
Exhibit 4.6
ArriVent BioPharma, Inc.
Issuer
AND
[ ]
Trustee
INDENTURE
Dated as of [ ]
Senior Debt Securities
CROSS-REFERENCE TABLE (1)
|
Section of
Trust Indenture Act
of 1939, as Amended |
Section of
Indenture |
| 310(a). |
7.09 |
| 310(b). |
7.08 |
| |
7.10 |
| 310(c). |
Inapplicable |
| 311(a). |
7.13(a) |
| 311(b). |
7.13(b) |
| 311(c). |
Inapplicable |
| 312(a) |
5.02(a) |
| 312(b). |
5.02(b) |
| 312(c). |
5.02(c) |
| 313(a). |
5.04(a) |
| 313(b). |
5.04(a) |
| 313(c). |
5.04(a) |
| |
5.04(b) |
| 313(d). |
5.04(b) |
| 314(a). |
5.03 |
| 314(b). |
Inapplicable |
| 314(c). |
13.06 |
| 314(d). |
Inapplicable |
| 314(e). |
13.06 |
| 314(f). |
Inapplicable |
| 315(a). |
7.01(a) |
| |
7.02 |
| 315(b). |
6.07 |
| 315(c). |
7.01 |
| 315(d). |
7.01(b) |
| |
7.01(c) |
| 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). |
13.08 |
(1) This Cross-Reference Table does not constitute part of the Indenture and shall not have
any bearing on the interpretation of any of its terms or provisions.
TABLE OF CONTENTS (2)
| |
Page |
| ARTICLE I DEFINITIONS |
1 |
| |
|
| SECTION 1.01 |
Definitions of Terms |
1 |
| |
|
|
| ARTICLE II 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 |
5 |
| SECTION 2.03 |
Denominations: Provisions for Payment |
5 |
| SECTION 2.04 |
Execution and Authentications |
6 |
| SECTION 2.05 |
Registration of Transfer and Exchange |
7 |
| SECTION 2.06 |
Temporary Securities |
8 |
| SECTION 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
8 |
| SECTION 2.08 |
Cancellation |
9 |
| SECTION 2.09 |
Benefits of Indenture |
9 |
| SECTION 2.10 |
Authenticating Agent |
9 |
| SECTION 2.11 |
Global Securities |
9 |
| |
|
|
| ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
10 |
| |
|
| SECTION 3.01 |
Redemption |
10 |
| SECTION 3.02 |
Notice of Redemption |
10 |
| SECTION 3.03 |
Payment Upon Redemption |
11 |
| SECTION 3.04 |
Sinking Fund |
11 |
| SECTION 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
11 |
| SECTION 3.06 |
Redemption of Securities for Sinking Fund |
12 |
| |
|
|
| ARTICLE IV COVENANTS |
12 |
| |
|
| SECTION 4.01 |
Payment of Principal, Premium and Interest |
12 |
| SECTION 4.02 |
Maintenance of Office or Agency |
12 |
| SECTION 4.03 |
Paying Agents |
12 |
| SECTION 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
13 |
| SECTION 4.05 |
Compliance with Consolidation Provisions |
13 |
| |
|
|
| ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
13 |
| |
|
| SECTION 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
13 |
| SECTION 5.02 |
Preservation of Information; Communications with Securityholders |
13 |
| SECTION 5.03 |
Reports by the Company |
14 |
| SECTION 5.04 |
Reports by the Trustee |
14 |
| ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
14 |
| |
|
| SECTION 6.01 |
Events of Default |
14 |
| SECTION 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
16 |
| SECTION 6.03 |
Application of Moneys Collected |
17 |
| SECTION 6.04 |
Limitation on Suits |
17 |
| SECTION 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
17 |
| SECTION 6.06 |
Control by Securityholders |
18 |
| SECTION 6.07 |
Undertaking to Pay Costs |
18 |
| |
|
|
| ARTICLE VII CONCERNING THE TRUSTEE |
19 |
| |
|
| SECTION 7.01 |
Certain Duties and Responsibilities of Trustee |
19 |
| SECTION 7.02 |
Certain Rights of Trustee |
19 |
| SECTION 7.03 |
Trustee Not Responsible for Recitals or Issuance of Securities |
20 |
| SECTION 7.04 |
May Hold Securities |
20 |
| SECTION 7.05 |
Moneys Held in Trust |
20 |
| SECTION 7.06 |
Compensation and Reimbursement |
21 |
| SECTION 7.07 |
Reliance on Officers’ Certificate |
21 |
| SECTION 7.08 |
Disqualification; Conflicting Interests |
21 |
| SECTION 7.09 |
Corporate Trustee Required; Eligibility |
21 |
| SECTION 7.10 |
Resignation and Removal; Appointment of Successor |
22 |
| SECTION 7.11 |
Acceptance of Appointment By Successor |
22 |
| SECTION 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
23 |
| SECTION 7.13 |
Preferential Collection of Claims Against the Company |
23 |
| |
|
|
| ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
24 |
| |
|
| SECTION 8.01 |
Evidence of Action by Securityholders |
24 |
| SECTION 8.02 |
Proof of Execution by Securityholders |
24 |
| SECTION 8.03 |
Who May be Deemed Owners |
24 |
| SECTION 8.04 |
Certain Securities Owned by Company Disregarded |
24 |
| SECTION 8.05 |
Actions Binding on Future Securityholders |
25 |
| SECTION 8.06 |
Purposes for Which Meetings May Be Called |
25 |
| SECTION 8.07 |
Call Notice and Place of Meetings |
25 |
| SECTION 8.08 |
Persons Entitled To Vote at Meetings |
25 |
| SECTION 8.09 |
Quorum; Action |
26 |
| SECTION 8.10 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
26 |
| SECTION 8.11 |
Counting Votes and Recording Action of Meetings |
27 |
| |
|
|
| ARTICLE IX SUPPLEMENTAL INDENTURES |
27 |
| |
|
| SECTION 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
27 |
| SECTION 9.02 |
Supplemental Indentures With Consent of Securityholders |
28 |
| SECTION 9.03 |
Effect of Supplemental Indentures |
28 |
| SECTION 9.04 |
Securities Affected by Supplemental Indentures |
28 |
| SECTION 9.05 |
Execution of Supplemental Indentures |
28 |
| |
|
|
| ARTICLE X SUCCESSOR ENTITY |
29 |
| |
|
| SECTION 10.01 |
Company May Consolidate, Etc. |
29 |
| SECTION 10.02 |
Successor Entity Substituted |
29 |
| SECTION 10.03 |
Evidence of Consolidation, Etc. to Trustee |
29 |
| |
|
|
| ARTICLE XI SATISFACTION AND DISCHARGE |
30 |
| |
|
| SECTION 11.01 |
Satisfaction and Discharge of Indenture |
30 |
| SECTION 11.02 |
Discharge of Obligations |
30 |
| SECTION 11.03 |
Deposited Moneys to be Held in Trust |
30 |
| SECTION 11.04 |
Payment of Moneys Held by Paying Agents |
30 |
| SECTION 11.05 |
Repayment to Company |
30 |
| |
|
|
| ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
31 |
| |
|
| SECTION 12.01 |
No Recourse |
31 |
| |
|
|
| ARTICLE XIII MISCELLANEOUS PROVISIONS |
31 |
| |
|
| SECTION 13.01 |
Effect on Successors and Assigns |
31 |
| SECTION 13.02 |
Actions by Successor |
31 |
| SECTION 13.03 |
Surrender of Company Powers |
31 |
| SECTION 13.04 |
Notices |
31 |
| SECTION 13.05 |
Governing Law |
32 |
| SECTION 13.06 |
Treatment of Securities as Debt |
32 |
| SECTION 13.07 |
Compliance Certificates and Opinions |
32 |
| SECTION 13.08 |
Payments on Business Days |
32 |
| SECTION 13.09 |
Conflict with Trust Indenture Act |
32 |
| SECTION 13.10 |
Counterparts |
32 |
| SECTION 13.11 |
Separability |
33 |
| SECTION 13.12 |
Assignment |
33 |
| (2) |
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 and provisions. |
INDENTURE, dated as of [ ], by and between ArriVent BioPharma, Inc.,
a Delaware corporation (the “Company”), and [ ], 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 I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
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 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 with respect to all or any series of the Securities 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 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 and State of New York, are
authorized or obligated by law, executive order or regulation to close.
“Certificate” means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting officer of the Company. The Certificate need not comply
with the provisions of Section 13.07.
“Commission” means the Securities and Exchange Commission.
“Company” means the corporation named as the “Company”
in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor corporation.
“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 [ ], except that whenever a provision herein refers to an office or agency of the Trustee in the Borough of Manhattan, the City and
State of New York, such office is located, at the date hereof, at [ ].
“Custodian” means any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
“Default” means an event which is, or after notice or lapse
of time, or both, would constitute an Event of Default.
“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, New York,
New York, 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 Section 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 Securities Exchange Act of 1934,
as amended.
“Global Security” means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction,
all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities that are (i) direct
obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) 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 non-callable
at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) 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.
“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.
“Officers’ Certificate” means a certificate signed
by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary of the Company that is delivered to the Trustee
in accordance with the terms hereof. 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 a written opinion of counsel,
who may be counsel to the Company (and may include directors or employees of the Company) and which opinion is acceptable to the Trustee
which acceptance shall not be unreasonably withheld.
“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 in Article III provided, 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, limited liability
company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated organization or government or any
agency or political subdivision 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 mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,” when used with respect to the Trustee,
means any officer of the Trustee, including any vice president, assistant vice president, secretary, assistant secretary, the treasurer,
any assistant treasurer, the managing director or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities authenticated and
delivered under this Indenture.
“Security Register” has the meaning specified in Section 2.05.
“Security Registrar” has the meaning specified in Section 2.05.
“Securityholder,” “holder of Securities,” “registered
holder,” or other similar term, means the Person or Persons in whose name or names a particular Security shall be registered in
the Security Register.
“Subsidiary” means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture
or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such Person,
or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.
“Trustee” means the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of execution of this instrument;
provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture Act means, to the extent required
by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,” as applied to any Person, means shares,
interests, participations or other equivalents in the equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests, participations or other
equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
| |
(a) |
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto: |
| |
(1) |
the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
| |
(2) |
the aggregate principal amount of the Securities of such series initially to be issued and any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series); |
| |
(3) |
the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable; |
| |
(4) |
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment; |
| |
(5) |
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; |
| |
(6) |
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 method for determining such dates; |
| |
(7) |
the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
| |
(8) |
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, in whole or in part, at the option of the Company; |
| |
(9) |
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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; |
| |
(10) |
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| |
(11) |
the form of the Securities of the series including the form of the Certificate of Authentication for such series; |
| |
(12) |
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; |
| |
(13) |
any and all other terms 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; |
| |
(14) |
whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
| |
(15) |
whether the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion period; |
| |
(16) |
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01; and |
| |
(17) |
any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series. |
All Securities of any one series shall be substantially identical except
as to denomination and 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 Officers’ 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 of the Company and as set forth in an Officers’ Certificate of the Company and may have
such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved
thereon as the 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 stock exchange
on which Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(12). The Securities
of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. 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 in the Borough of Manhattan, the City and State of New York. 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:
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(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, 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. |
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(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 of the Company 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 with respect to 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 last 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 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 its President,
or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries,
under its corporate seal attested by its Secretary or one of its Assistant Secretaries. 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 a President or Vice President thereof, or of
any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such Person
shall have ceased to be the President or a Vice President, the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
of the Company. The seal of the Company may be in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. 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.
A Security shall not be valid or obligatory for any purpose and shall
not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication manually signed
by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive evidence, and the only
evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that the Security 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 its President or any Vice President and its Secretary or any Assistant
Secretary, 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, 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.
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(a) |
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and State of New York, 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. |
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(b) |
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location designated by the Company 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.
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(c) |
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(b) and Section 9.04 not involving any transfer. |
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(d) |
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. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 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 in the Borough of Manhattan, the City and State of New York, 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
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(a) |
If the Company shall establish pursuant to Section 2.01 that some or all of 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, the Outstanding Securities of such series which are to be issued as a Global Security, (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.” |
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(b) |
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary. |
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(c) |
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered. |
ARTICLE III
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.
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(a) |
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with the right reserved so to do, 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 Officers’ 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 in the Borough of Manhattan, the City and State of
New York, 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 for 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 whole or 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.
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(b) |
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its President or any Vice President, 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.
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(a) |
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to 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). |
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(b) |
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented. |
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”
If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) 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, the Company will deliver to the Trustee an Officers’ 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 Officers’
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 IV
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.
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 in the Borough of Manhattan, the City and State of New York, 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 or surrendered 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 its President or a Vice President 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.
SECTION 4.03 Paying Agents.
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(a) |
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section: |
| |
(1) |
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto; |
| |
(2) |
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable; |
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(3) |
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and |
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(4) |
that it will perform all other duties of paying agent as set forth in this Indenture. |
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(b) |
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient with monies held by all other paying agents 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 (an 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. |
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(c) |
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon such payment by any paying agent to the Trustee, 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 company unless the provisions of Article X hereof are complied with.
ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
If the Company is not the Security Register, the Company will furnish
or use reasonable efforts to cause to be furnished to the Trustee (a) on 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.
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(a) |
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity) and shall otherwise comply with Section 312(a) of the Trust Indenture Act. |
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(b) |
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
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(c) |
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities. |
SECTION 5.03 Reports by the Company.
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(a) |
The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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 may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; 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. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
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(b) |
The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
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(c) |
The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. |
SECTION 5.04 Reports by the Trustee.
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(a) |
The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided by the Trust Indenture Act. |
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(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
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(a) |
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing: |
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(1) |
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and continuance of such default 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; |
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(2) |
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any; |
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(3) |
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by the holders of not less than a majority in principal amount of the Securities of that series at the time Outstanding; |
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(4) |
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment for the benefit of its creditors; or |
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(5) |
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property, or (iii) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 consecutive days. |
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(b) |
In each and every such case, 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 a majority 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 (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. |
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(c) |
At any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied, cured 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. |
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(d) |
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company, and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken. |
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
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(a) |
The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or 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 Business Days, or (2) 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. |
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(b) |
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or other obligor upon the Securities of that series, wherever situated. |
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(c) |
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affected 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 this 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. |
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(d) |
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series. |
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this 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 the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06; and
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.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder
previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities
of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than a majority 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; and (iv) the
Trustee for 60 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 60 day period, the holders of a majority in principal amount of the Securities of that series
(or such amount as shall have acted at a meeting of the holders of Securities of such series pursuant to the provisions of this Indenture)
do not give the Trustee a direction inconsistent with the request; provided, however, that no one or more of such holders may use this
Indenture to prejudice the rights of another holder or to obtain preference or priority over another holder.
Notwithstanding anything contained herein to the contrary, 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.
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(a) |
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such Securities. |
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(b) |
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or on 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 8.01, 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 be unduly prejudicial to the rights of holders of Securities of any other series at the time Outstanding determined in accordance with
Section 8.01. 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 would
involve the Trustee in personal liability. The holders either (a) through the written consent of not less than a majority in aggregate
principal amount of the Securities of any series at the time Outstanding or (b) by action at a meeting of holders of the Securities
of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding represented at such meeting, may on behalf of the holders of all of the Securities of such series waive any past
default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such
series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities
of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default
has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.01(c)) and except in respect a provision hereof which, under Section 9.02, cannot
be modified or amended without the consent of the holders of each Outstanding Security affected; provided however that this Section shall
not limit the right of holders of Securities of a series to rescind and annul any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would
be automatically deemed to be contained in this Indenture pursuant to Section (316)(a)(1) of the Trust Indenture Act are hereby
expressly excluded from this Indenture, except to the extent such provisions are expressly included herein.
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 VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
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(a) |
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. |
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(b) |
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
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(1) |
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: |
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(i) |
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 |
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(ii) |
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 requirement of this Indenture; |
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(2) |
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; |
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(3) |
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 |
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(4) |
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:
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(a) |
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; |
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(b) |
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company, by the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein); |
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(c) |
The Trustee may consult with counsel and the written advice of such counsel or 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; |
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(d) |
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee 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; |
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(e) |
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
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(f) |
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, 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; and |
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(g) |
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. |
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
of Securities.
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(a) |
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. |
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(b) |
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. |
| |
(c) |
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee. |
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual
or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys
received by it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
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(a) |
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. 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 costs and expenses of defending itself against any claim of liability in the premises. |
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(b) |
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for 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. |
SECTION 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it 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 Officers’ 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 50 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 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 shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any
Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
| |
(a) |
The Trustee or any successor hereafter appointed, may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. |
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(b) |
In case at any time any one of the following shall occur: |
| |
(1) |
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 |
| |
(2) |
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 |
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(3) |
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, unless the Trustee’s duty to resign is stayed as provided herein, 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. |
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(c) |
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company. |
| |
(d) |
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
| |
(e) |
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series. |
SECTION 7.11 Acceptance of Appointment By Successor.
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(a) |
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of 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. |
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(b) |
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (1) 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, (2) 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 (3) 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.
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(c) |
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. |
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(d) |
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article. |
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(e) |
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company. |
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to the corporate trust business of the Trustee, 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.
ARTICLE VIII
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 Officers’ 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:
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(a) |
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee. |
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(b) |
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof. |
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(c) |
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 of 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.
SECTION 8.06 Purposes for Which Meetings May Be Called.
A meeting of holders of any series of Securities may be called at any
time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or taken by holders of such series of Securities.
Notwithstanding anything contained in this Article VIII, the Trustee
may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities in accordance with
its standard practices.
SECTION 8.07 Call Notice and Place of Meetings.
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(a) |
The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to be held at such time and at such place in The City of New York. Notice of every meeting of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting to holders of Outstanding Securities of such series. |
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(b) |
In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section. |
SECTION 8.08 Persons Entitled To Vote at Meetings.
To be entitled to vote at any meeting of holders of Securities of a
given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a Person appointed
by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series by such holder or holders.
The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 8.09 Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting of holders of Outstanding Securities
of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened
at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall
be given as provided in Section 8.07(a) hereof, except that such notice need be given only once and not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph of Section 9.02
hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority in aggregate
principal amount of Outstanding Securities of a series represented and voting at such meeting with respect to a meeting of holders of
Outstanding Securities of such series.
Any resolution passed or decisions taken at any meeting of holders
of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such series, whether
or not present or represented at the meeting.
SECTION 8.10 Determination of Voting Rights; Conduct and Adjournment
of Meetings.
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(a) |
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
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(b) |
The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
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(c) |
At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such series or proxy. |
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(d) |
Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION 8.11 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of holders of
Securities of a given series shall be by written ballots on which shall be subscribed the signatures of the holders of Securities of such
series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series
held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports
in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of holders of Securities
of such series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was given as provided in Section 8.07 hereof and, if applicable,
Section 8.09 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE IX
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:
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(a) |
cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
| (b) | to comply with Article X; |
| |
(c) |
to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(d) |
to add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
| |
(e) |
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as herein set forth; |
| |
(f) |
to make any change that does not adversely affect the rights of any Securityholder in any material respect; |
| |
(g) |
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of any series of Securities; or |
| |
(h) |
comply with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority in aggregate
principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the Securities of such series in
accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding
represented at such meeting, the Company, when authorized by Board Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such
supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount securities payable upon acceleration
of the maturity of any Securities of any series or (iv) make the principal of or premium or interest on any Security of a series
payable in currency or currency units other than that stated in the Securities of such series.
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 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 of the Company, 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, may receive an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof; provided, however, that such 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 Trustee shall 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 Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities 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, 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)
satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor Entity Substituted.
| |
(a) |
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each series, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities. |
| |
(b) |
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. |
| |
(c) |
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other Person (whether or not affiliated with the Company). |
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may receive
an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article.
ARTICLE XI
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 (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
sufficient or a combination thereof, sufficient (assuming that no tax liability will be imposed on the Trustee) 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.
Subject to Section 11.05, 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 or interest on the Securities of a particular
series that are not applied but remain unclaimed by the holders of such Securities for 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, shall be repaid to the Company
or (if then held by the Company) shall be discharged from such trust in each case, promptly after the end of any such two-year period
or, at the request of the Company, on a later date specified by the Company; 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 an unsecured general creditor, look only to the Company for the payment thereof.
ARTICLE XII
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 XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
contained 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 or demand
that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities
to or on the Company may be given or served by being deposited first class postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the Trustee), as follows: ArriVent BioPharma, Inc., Attn: [ ], 18 Campus
Boulevard, Suite 100 Newtown Square, PA. Any notice, election, request or demand by the Company or any Securityholder 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. Any notice or communication to a holder shall be mailed by first-class mail to his address shown on the Security
Register kept by the Security Registrar. Failure to mail a notice or communication to a holder or any defect in such notice or communication
shall not affect its sufficiency with respect to other holders. If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed, whether or not the addressee receives it, except that
notice to the Trustee or the Company shall only be effective upon receipt thereof by the Trustee or the Company, respectively. If the
Company mails a notice or communication to holders of Securities, it shall mail a copy to the Trustee at the same time.
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.
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 Compliance Certificates and Opinions.
| |
(a) |
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. |
| |
(b) |
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) 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 as set forth in an Officers’ 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 Assignment.
The Company will have the right at all times to assign any of its rights
or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided that, in the event of any
such assignment, the Company, will remain liable for all such obligations. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
| ArriVent BioPharma, Inc. |
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| [ ], |
| As Trustee |
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
Exhibit 4.7
ArriVent BioPharma, Inc.
Issuer
AND
[ ] Trustee
INDENTURE
Dated as of [ ]
Subordinated Debt Securities
CROSS-REFERENCE TABLE (1)
|
Section of Trust
Indenture Act of
1939, as Amended |
Section of
Indenture |
| 310(a). |
7.09 |
| 310(b). |
7.08 |
| |
7.10 |
| 310(c). |
Inapplicable |
| 311(a). |
7.13(a) |
| 311(b). |
7.13(b) |
| 311(c). |
Inapplicable |
| 312(a). |
5.02(a) |
| 312(b). |
5.02(b) |
| 312(c). |
5.02(c) |
| 313(a). |
5.04(a) |
| 313(b). |
5.04(a) |
| 313(c). |
5.04(a) |
| |
5.04(b) |
| 313(d). |
5.04(b) |
| 314(a). |
5.03 |
| 314(b). |
Inapplicable |
| 314(c). |
13.06 |
| 314(d). |
Inapplicable |
| 314(e). |
13.06 |
| 314(f). |
Inapplicable |
| 315(a). |
7.01(a) |
| |
7.02 |
| 315(b). |
6.07 |
| 315(c). |
7.01 |
| 315(d). |
7.01(b) |
| |
7.01(c) |
| 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) |
13.08 |
| (1) |
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
TABLE OF CONTENTS (2)
| |
|
Page |
| ARTICLE I DEFINITIONS |
1 |
| |
|
|
| SECTION 1.01 |
Definitions of Terms |
1 |
| |
|
|
| ARTICLE II 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 |
5 |
| SECTION 2.03 |
Denominations: Provisions for Payment |
6 |
| SECTION 2.04 |
Execution and Authentications |
7 |
| SECTION 2.05 |
Registration of Transfer and Exchange |
7 |
| SECTION 2.06 |
Temporary Securities |
8 |
| SECTION 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
8 |
| SECTION 2.08 |
Cancellation |
9 |
| SECTION 2.09 |
Benefits of Indenture |
9 |
| SECTION 2.10 |
Authenticating Agent |
9 |
| SECTION 2.11 |
Global Securities |
10 |
| |
|
|
| ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
10 |
| |
|
|
| SECTION 3.01 |
Redemption |
10 |
| SECTION 3.02 |
Notice of Redemption |
11 |
| SECTION 3.03 |
Payment Upon Redemption |
11 |
| SECTION 3.04 |
Sinking Fund |
12 |
| SECTION 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
12 |
| SECTION 3.06 |
Redemption of Securities for Sinking Fund |
12 |
| |
|
|
| ARTICLE IV COVENANTS |
12 |
| |
|
|
| SECTION 4.01 |
Payment of Principal, Premium and Interest |
12 |
| SECTION 4.02 |
Maintenance of Office or Agency |
13 |
| SECTION 4.03 |
Paying Agents |
13 |
| SECTION 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
13 |
| SECTION 4.05 |
Compliance with Consolidation Provisions |
14 |
| |
|
|
| ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
14 |
| |
|
|
| SECTION 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
14 |
| SECTION 5.02 |
Preservation of Information; Communications with Securityholders |
14 |
| SECTION 5.03 |
Reports by the Company |
14 |
| SECTION 5.04 |
Reports by the Trustee |
15 |
| |
|
|
| ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
15 |
| |
|
|
| SECTION 6.01 |
Events of Default |
15 |
| SECTION 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
16 |
| SECTION 6.03 |
Application of Moneys Collected |
17 |
| SECTION 6.04 |
Limitation on Suits |
18 |
| SECTION 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
18 |
| SECTION 6.06 |
Control by Securityholders |
18 |
| SECTION 6.07 |
Undertaking to Pay Costs |
19 |
| ARTICLE VII CONCERNING THE TRUSTEE |
19 |
| |
|
|
| SECTION 7.01 |
Certain Duties and Responsibilities of Trustee |
19 |
| SECTION 7.02 |
Certain Rights of Trustee |
20 |
| SECTION 7.03 |
Trustee Not Responsible for Recitals or Issuance of Securities |
21 |
| SECTION 7.04 |
May Hold Securities |
21 |
| SECTION 7.05 |
Moneys Held in Trust |
21 |
| SECTION 7.06 |
Compensation and Reimbursement |
21 |
| SECTION 7.07 |
Reliance on Officers’ Certificate |
22 |
| SECTION 7.08 |
Disqualification; Conflicting Interests |
22 |
| SECTION 7.09 |
Corporate Trustee Required; Eligibility |
22 |
| SECTION 7.10 |
Resignation and Removal; Appointment of Successor |
22 |
| SECTION 7.11 |
Acceptance of Appointment By Successor |
23 |
| SECTION 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
24 |
| SECTION 7.13 |
Preferential Collection of Claims Against the Company |
24 |
| |
|
|
| ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
25 |
| |
|
|
| SECTION 8.01 |
Evidence of Action by Securityholders |
25 |
| SECTION 8.02 |
Proof of Execution by Securityholders |
25 |
| SECTION 8.03 |
Who May be Deemed Owners |
25 |
| SECTION 8.04 |
Certain Securities Owned by Company Disregarded |
25 |
| SECTION 8.05 |
Actions Binding on Future Securityholders |
26 |
| SECTION 8.06 |
Purposes for Which Meetings May Be Called |
26 |
| SECTION 8.07 |
Call Notice and Place of Meetings |
26 |
| SECTION 8.08 |
Persons Entitled To Vote at Meetings |
27 |
| SECTION 8.09 |
Quorum; Action |
27 |
| SECTION 8.10 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
27 |
| SECTION 8.11 |
Counting Votes and Recording Action of Meetings |
28 |
| |
|
|
| ARTICLE IX SUPPLEMENTAL INDENTURES 29 |
| |
|
|
| SECTION 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
28 |
| SECTION 9.02 |
Supplemental Indentures With Consent of Securityholders |
28 |
| SECTION 9.03 |
Effect of Supplemental Indentures |
29 |
| SECTION 9.04 |
Securities Affected by Supplemental Indentures |
29 |
| SECTION 9.05 |
Execution of Supplemental Indentures |
29 |
| |
|
|
| ARTICLE X SUCCESSOR ENTITY |
30 |
| |
|
|
| SECTION 10.01 |
Company May Consolidate, Etc. |
30 |
| SECTION 10.02 |
Successor Entity Substituted |
30 |
| SECTION 10.03 |
Evidence of Consolidation, Etc. to Trustee |
31 |
| |
|
|
| ARTICLE XI SATISFACTION AND DISCHARGE |
31 |
| |
|
|
| SECTION 11.01 |
Satisfaction and Discharge of Indenture |
31 |
| SECTION 11.02 |
Discharge of Obligations |
31 |
| SECTION 11.03 |
Deposited Moneys to be Held in Trust |
31 |
| SECTION 11.04 |
Payment of Moneys Held by Paying Agents |
32 |
| SECTION 11.05 |
Repayment to Company |
32 |
| |
|
|
| ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
|
|
| SECTION 12.01 |
No Recourse |
32 |
| ARTICLE XIII MISCELLANEOUS PROVISIONS |
32 |
| |
|
|
| SECTION 13.01 |
Effect on Successors and Assigns |
32 |
| SECTION 13.02 |
Actions by Successor |
32 |
| 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 |
Compliance Certificates and Opinions |
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 |
Assignment |
34 |
| |
|
|
| ARTICLE XIV SUBORDINATION OF SECURITIES |
34 |
| |
|
|
| SECTION 14.01 |
Subordination Terms |
34 |
| (2) |
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, dated as of [ ], by and between ArriVent
BioPharma, Inc., a Delaware corporation (the “Company”), and [ ], 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 I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except
as in this Indenture 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 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 with respect to all or any series of the Securities 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 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 and State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate” means a certificate
signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.07.
“Commission” means the Securities
and Exchange Commission.
“Company” means the corporation named
as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“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 [ ], except that whenever a provision herein refers to an office or agency of the Trustee in the Borough
of Manhattan, the City and State of New York, such office is located, at the date hereof, at [ ].
“Custodian” means any receiver, trustee,
assignee, liquidator, or similar official under any Bankruptcy Law.
“Default” means an event which is,
or after notice or lapse of time, or both, would constitute an Event of Default.
“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, New York, New York, 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
Section 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 Securities
Exchange Act of 1934, as amended.
“Global Security” means, with respect
to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities
that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or
(ii) 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 non-callable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“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.
“Officers’ Certificate” means
a certificate signed by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer
or an Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary of the Company that
is delivered to the Trustee in accordance with the terms hereof. 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 a written
opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which opinion is acceptable
to the Trustee which acceptance shall not be unreasonably withheld.
“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 in Article III
provided, 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,
limited liability company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision 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 mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,” when used with
respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary, assistant
secretary, the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities
authenticated and delivered under this Indenture.
“Security Register” has the meaning
specified in Section 2.05.
“Security Registrar” has the meaning
specified in Section 2.05.
“Securityholder,” “holder of
Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name or names a particular
Security shall be registered in the Security Register.
“Subsidiary” means, with respect to
any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly,
by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means the Person named as
the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of execution
of this instrument; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture Act means,
to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,” as applied to any
Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
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(a) |
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto: |
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(1) |
the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities); |
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(2) |
the aggregate principal amount of the Securities of such series initially to be issued and any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series); |
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(3) |
the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable; |
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(4) |
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment; |
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(5) |
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; |
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(6) |
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 method for determining such dates; |
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(7) |
the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension; |
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(8) |
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, in whole or in part, at the option of the Company; |
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(9) |
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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; |
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(10) |
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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(11) |
the form of the Securities of the series including the form of the Certificate of Authentication for such series; |
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(12) |
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; |
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(13) |
any and all other terms 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; |
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(14) |
whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series; |
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(15) |
whether the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion period; |
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(16) |
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01; |
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(17) |
any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series; and |
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(18) |
the subordination terms of the Securities of the series. |
All Securities of any one series shall be substantially
identical except as to denomination and 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 Officers’ 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 of the Company and as set forth in an Officers’ Certificate
of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the 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 stock exchange on which Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section 2.01(a)(12).
The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
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 in the Borough of Manhattan, the City and State of New
York. 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, 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
of the Company 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 with respect to
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 last 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 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 its President, or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Secretary, or one
of its Assistant Secretaries, under its corporate seal attested by its Secretary or one of its Assistant Secretaries. 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 a President
or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of any Person who shall
have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities shall be authenticated
and delivered or disposed of such Person shall have ceased to be the President or a Vice President, the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary, of the Company. The seal of the Company may be in the form of a facsimile of such seal and
may be impressed, affixed, imprinted or otherwise reproduced on the Securities. 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.
A Security shall not be valid or obligatory for
any purpose and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication
manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive evidence,
and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that the Security 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 its President or any Vice President and its Secretary
or any Assistant Secretary, 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, 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.
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(a) |
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and State of New York, 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. |
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(b) |
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location designated by the Company 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.
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(c) |
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(b) and Section 9.04 not involving any transfer. |
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(d) |
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. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 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 in the Borough of Manhattan, the City and State of New York, 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 XIV, the holders of Senior Indebtedness, as defined in any supplement to this Indenture
pursuant to Article XIV) 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 XIV, the holders of Senior Indebtedness).
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
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(a) |
If the Company shall establish pursuant to Section 2.01 that some or all of 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, the Outstanding Securities of such series which are to be issued as a Global Security, (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.” |
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(b) |
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company or to a nominee of such successor Depositary. |
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(c) |
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered. |
ARTICLE III
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.
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(a) |
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with the right reserved so to do, 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 Officers’ 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 in the Borough
of Manhattan, the City and State of New York, 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 for 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 whole or in part shall specify the particular Securities to be so redeemed. In case any
Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be issued.
| |
(b) |
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its President or any Vice President, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section. |
SECTION 3.03 Payment Upon Redemption.
| |
(a) |
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to 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). |
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(b) |
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented. |
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by
Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series (other than any Securities previously called for redemption) 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, the Company will deliver to the Trustee an Officers’ 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 Officers’ 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 IV
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.
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 in the Borough of Manhattan, the City and State of New York, 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 or surrendered 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 its President or a Vice President 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.
SECTION 4.03 Paying Agents.
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(a) |
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section: |
| |
(1) |
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto; |
| |
(2) |
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable; |
| |
(3) |
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and |
|
(4) |
that it will perform all other duties of paying agent as set forth in this Indenture. |
| |
(b) |
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient with monies held by all other paying agents 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 (an 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. |
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(c) |
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such paying agent; and, upon such payment by any paying agent to the Trustee, 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 company unless the provisions of Article X hereof are complied
with.
ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
If the Company is not the Security Register, the
Company will furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on 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.
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(a) |
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity) and shall otherwise comply with Section 312(a) of the Trust Indenture Act. |
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(b) |
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished. |
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(c) |
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities. |
SECTION 5.03 Reports by the Company.
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(a) |
The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file 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 may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; 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. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. |
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(b) |
The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. |
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(c) |
The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. |
SECTION 5.04 Reports by the Trustee.
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(a) |
The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided by the Trust Indenture Act. |
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(b) |
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange. |
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
SECTION 6.01 Events of Default.
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(a) |
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing: |
| |
(1) |
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and continuance of such default 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; |
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(2) |
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any; |
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(3) |
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by the holders of not less than a majority in principal amount of the Securities of that series at the time Outstanding; |
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(4) |
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general assignment for the benefit of its creditors; or |
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(5) |
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property, or (iii) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 consecutive days. |
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(b) |
In each and every such case, 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 a majority 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 (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, on the Securities of such series shall remain subordinated to the extent provided in Article XIV. |
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(c) |
At any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied, cured 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. |
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(d) |
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company, and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken. |
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
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(a) |
The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or 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 Business Days, or (2) 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. |
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(b) |
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or other obligor upon the Securities of that series, wherever situated. |
| |
(c) |
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affected 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 this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06. |
| |
(d) |
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series. |
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in this 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 the payment, if only partially paid, and upon surrender thereof if fully paid:
| FIRST: |
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; |
| SECOND: |
To the payment of all Senior Indebtedness of the Company if and to the extent required by Article XIV; and |
| THIRD: |
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. |
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not
less than a majority 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; and (iv) the Trustee for 60 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 60 day period, the holders of a majority in principal amount
of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities of such series pursuant
to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request; provided, however, that no one
or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain preference or priority over another
holder.
Notwithstanding anything contained herein to the
contrary, 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.
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(a) |
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such Securities. |
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(b) |
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or on 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 8.01, 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 be unduly prejudicial to the rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability.
The holders either (a) through the written
consent of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by
action at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in
aggregate principal amount of the Securities of such series then Outstanding represented at such meeting, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of, or
premium, if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of such Securities
otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)) and except in respect a provision
hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding Security affected;
provided however that this Section shall not limit the right of holders of Securities of a series to rescind and annul any acceleration
as set forth in Section 6.01. 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.
The provisions which otherwise would be automatically deemed to be contained in this Indenture pursuant to Section 316(a)(1) of
the Trust Indenture Act are hereby expressly excluded from this Indenture, except to the extent such provisions are expressly included
herein.
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 VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
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(a) |
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. |
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(b) |
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
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(1) |
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: |
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(i) |
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 |
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(ii) |
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 requirement of this Indenture; |
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(2) |
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; |
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(3) |
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 |
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(4) |
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:
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(a) |
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; |
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(b) |
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company, by the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein); |
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(c) |
The Trustee may consult with counsel and the written advice of such counsel or 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; |
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(d) |
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee 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; |
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(e) |
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
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(f) |
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, 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; and |
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(g) |
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. |
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
of Securities.
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(a) |
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. |
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(b) |
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. |
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(c) |
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee. |
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
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(a) |
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. 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 costs and expenses of defending itself against any claim of liability in the premises. |
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(b) |
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for 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. |
SECTION 7.07 Reliance on Officers’ Certificate.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it 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 Officers’ 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 50 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 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
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.
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(a) |
The Trustee or any successor hereafter appointed, may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. |
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(b) |
In case at any time any one of the following shall occur: |
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(1) |
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 |
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(2) |
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 |
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(3) |
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, unless the Trustee’s duty to resign is stayed as provided herein, 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. |
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(c) |
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company. |
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(d) |
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11. |
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(e) |
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series. |
SECTION 7.11 Acceptance of Appointment By Successor.
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(a) |
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring Trustee shall, upon payment of 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. |
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(b) |
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (1) 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, (2) 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 (3) 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. |
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(c) |
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. |
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(d) |
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article. |
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(e) |
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company. |
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, 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.
ARTICLE VIII
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 Officers’ 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:
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(a) |
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee. |
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(b) |
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof. |
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(c) |
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 of 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.
SECTION 8.06 Purposes for Which Meetings May Be Called.
A meeting of holders of any series of Securities
may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by holders of such series of
Securities.
Notwithstanding anything contained in this Article VIII,
the Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities in accordance
with its standard practices.
SECTION 8.07 Call Notice and Place of Meetings.
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(a) |
The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to be held at such time and at such place in The City of New York. Notice of every meeting of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting to holders of Outstanding Securities of such series. |
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(b) |
In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section. |
SECTION 8.08 Persons Entitled To Vote at Meetings.
To be entitled to vote at any meeting of holders
of Securities of a given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a
Person appointed by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series by
such holder or holders. The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.09 Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting of holders of Outstanding
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 8.07(a) hereof, except that such notice need be given only once and not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph
of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than
a majority in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting with respect to
a meeting of holders of Outstanding Securities of such series.
Any resolution passed or decisions taken at any
meeting of holders of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such
series, whether or not present or represented at the meeting.
SECTION 8.10 Determination of Voting Rights; Conduct and Adjournment
of Meetings.
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(a) |
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. |
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(b) |
The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. |
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(c) |
At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such series or proxy. |
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(d) |
Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice. |
SECTION 8.11 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any
meeting of holders of Securities of a given series shall be by written ballots on which shall be subscribed the signatures of the holders
of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of
holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge
of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 8.07
hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE IX
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:
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(a) |
cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture; |
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(b) |
to comply with Article X; |
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(c) |
to provide for uncertificated Securities in addition to or in place of certificated Securities; |
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(d) |
to add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; |
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(e) |
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as herein set forth; |
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(f) |
to make any change that does not adversely affect the rights of any Securityholder in any material respect; |
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(g) |
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of any series of Securities; or |
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(h) |
comply with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at
least a majority in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the
Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities
of such series then Outstanding represented at such meeting, the Company, when authorized by Board Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders of which are required to consent to
any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount of discount securities payable upon
acceleration of the maturity of any Securities of any series or (iv) make the principal of or premium or interest on any Security
of a series payable in currency or currency units other than that stated in the Securities of such series.
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 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 of the Company, 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, may receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such
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 Trustee shall 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 Trustee to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any
of the Securities 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, 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) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor Entity Substituted.
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(a) |
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each series, 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. |
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(b) |
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. |
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(c) |
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other Person (whether or not affiliated with the Company). |
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition,
and any such assumption, comply with the provisions of this Article.
ARTICLE XI
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 (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 sufficient or a combination thereof, sufficient (assuming that no tax liability will be imposed
on the Trustee) 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.
Subject to Section 11.05, 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 or interest on the
Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for 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,
shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust in each case, promptly after the end
of any such two-year period or, at the request of the Company, on a later date specified by the Company; 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 an unsecured general creditor, look only to the Company for
the payment thereof.
ARTICLE XII
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 XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture contained 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 or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as follows: ArriVent BioPharma, Inc., Attn: [ ], 18
Campus Boulevard, Suite 100 Newtown Square, PA. Any notice, election, request or demand by the Company or any Securityholder 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. Any notice or communication to a holder shall be mailed by first-class mail to his address shown on the Security
Register kept by the Security Registrar. Failure to mail a notice or communication to a holder or any defect in such notice or communication
shall not affect its sufficiency with respect to other holders. If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed, whether or not the addressee receives it, except that
notice to the Trustee or the Company shall only be effective upon receipt thereof by the Trustee or the Company, respectively. If the
Company mails a notice or communication to holders of Securities, it shall mail a copy to the Trustee at the same time.
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.
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 Compliance Certificates and Opinions.
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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 Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and 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. |
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(b) |
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) 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 as set forth in an Officers’ 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 Assignment.
The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to the foregoing, this Indenture
is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may not otherwise
be assigned by the parties thereto.
ARTICLE XIV
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 the Securities of 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.
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Exhibit 5.1
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One
Financial Center
Boston, MA 02111
617 542 6000
mintz.com
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February 3, 2025
ArriVent BioPharma, Inc.
18 Campus Boulevard, Suite 100
Newtown Square, PA
Ladies and Gentlemen:
We have acted as legal counsel to ArriVent BioPharma, Inc., a
Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission
(the “Commission”) of a Registration Statement on Form S-3ASR (the “Registration Statement”), pursuant to
which the Company is registering under the Securities Act of 1933, as amended (the “Securities Act”), the following:
| |
(i) |
common stock, $0.0001 par value per share (the “Common Stock”); |
| |
(ii) |
preferred stock, $0.0001 par value per share (the “Preferred Stock”); |
| |
(iii) |
senior debt securities, in one or more series (the “Senior Debt Securities”),
which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Senior Debt Securities thereunder,
by and between the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.6 to the Registration
Statement, as such indenture may be amended or supplemented from time to time (the “Senior Indenture”); |
| |
(iv) |
subordinated debt securities, in one or more series (the “Subordinated Debt
Securities” and, together with the Senior Debt Securities, the “Debt Securities”), which may be issued pursuant
to an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, by and between
the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.7 to the Registration Statement,
as such indenture may be amended or supplemented from time to time (the “Subordinated Indenture”); |
| |
(v) |
warrants to purchase Common Stock, Preferred Stock, and/or Debt Securities (the
“Warrants”), which may be issued under warrant agreements, to be dated on or about the date of the first issuance of
the applicable Warrants thereunder, by and between the Company and a warrant agent to be selected by the Company (each, a “Warrant
Agreement”); |
| |
(vi) |
rights to purchase Common Stock, Preferred Stock or Debt Securities (the “Rights”),
which may be issued pursuant to a rights agreement and certificates issued thereunder, to be dated on or about the date of the first
issuance of the applicable Rights thereunder, by and between the Company and a rights agent to be selected by the Company (each,
a “Rights Agreement”); and |
| |
(vii) |
units comprised of one or more Debt Securities, shares of Common Stock, shares of
Preferred Stock, Rights and Warrants, in any combination (the “Units”), which may be issued under unit agreements, to
be dated on or about the date of the first issuance of the applicable Units thereunder, by and between the Company and a unit agent
to be selected by the Company (each, a “Unit Agreement”). |
We have also acted as legal counsel for the Company in connection
with the sales agreement prospectus supplement included in the Registration Statement relating to the issuance and sale of shares of
Common Stock having an aggregate offering price of up to $250,000,000 of shares of Common Stock (the “Sales Agreement Shares”)
under an Open Market Sale AgreementSM, dated February 3, 2025, by and between the Company and Jefferies LLC (the “Sales
Agreement”).
MINTZ
February 3, 2025
Page 2 |  |
The Common Stock, the Preferred Stock, the Debt Securities, the Warrants,
the Rights and the Units are collectively referred to herein as the “Securities.” The Registration Statement relates to the
registration of the Securities to be offered and sold by the Company from time to time on a delayed or continuous basis pursuant to Rule 415
under the Securities Act. This opinion is being rendered in connection with the filing of the Registration Statement with the Commission.
All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company’s
Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Amended and Restated Bylaws (the
“Bylaws”), each as currently in effect; the Sales Agreement; such other records of the corporate proceedings of the Company
and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies.
In our capacity as counsel to the Company in connection with such
registration, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization
and issuance of the Securities. For purposes of this opinion, we have assumed that such proceedings will be timely and properly completed,
in accordance with all requirements of applicable federal and Delaware laws, in the manner presently proposed.
The opinions set forth below are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which
any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions
providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution
is contrary to public policy; (iv) we express no opinion concerning the enforceability of any waiver of rights or defenses with
respect to stay, extension or usury laws; and (v) we express no opinion with respect to whether acceleration of any Debt Securities
may affect the ability to collect any portion of the stated principal amount thereof which might be determined to constitute unearned
interest thereon.
We have relied as to certain matters on information obtained from
public officials, officers of the Company, and other sources believed by us to be responsible and we have assumed that the Senior Indenture
and the Subordinated Indenture will be duly authorized, executed, and delivered by the respective trustees thereunder and the Warrant
Agreement, Rights Agreement and Unit Agreement will be duly authorized, executed, and delivered by the warrant agent, rights agent and
unit agent, respectively, thereunder. With respect to our opinion as to the Common Stock and Securities convertible into or exercisable
for shares of Common Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock are
authorized and available for issuance under the Company’s Certificate of Incorporation as then in effect and that the consideration
for the issuance and sale of the Common Stock (or Preferred Stock, Debt Securities convertible into Common Stock or Warrants or Rights
exercisable for Common Stock or any Units of such Securities) is in an amount that is not less than the par value of the Common Stock.
With respect to our opinion as to the Preferred Stock and Securities convertible into or exercisable for shares of Preferred Stock, we
have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock are authorized, designated and
available for issuance and that the consideration for the issuance and sale of the Preferred Stock (or Debt Securities convertible into
Preferred Stock or Warrants or Rights exercisable for Preferred Stock or any Units of such Securities) is in an amount that is not less
than the par value of the Preferred Stock. We have also assumed that any Warrants, Rights and Units offered under the Registration Statement,
and the related Warrant Agreement, Rights Agreement and Unit Agreement, as applicable, will be executed in the forms to be filed as exhibits
to the Registration Statement or incorporated by reference therein. We have not independently verified any of the foregoing assumptions.
It is understood that this opinion is to be used only in connection
with the offer and sale of Securities while the Registration Statement is effective under the Securities Act.
| Boston | Los
Angeles |
MIAMI |
New
York |
San
Diego |
San
Francisco |
toronto |
Washington |
| MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C. |
MINTZ
February 3, 2025
Page 3 | |
Our opinion is limited to the General Corporation Law of the State
of Delaware and the laws of the State of New York. Without limiting the generality of the foregoing, we express no opinion with respect
to (i) the qualification of the Securities under the securities or blue sky laws of any state or any foreign jurisdiction or (ii) the
compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters. The Securities may be issued from time to time on a delayed
or continuous basis, but this opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim
any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect
any matters or opinions set forth herein.
Based upon the foregoing, and in reliance thereon, and subject to
the qualifications herein stated, we are of the opinion that:
| 1. | With respect to the Common Stock (other than the Sales Agreement
Shares), when (i) specifically authorized for issuance by the Company’s Board
of Directors or an authorized committee thereof (the “Authorizing Resolutions”),
(ii) the Registration Statement, as finally amended (including all post-effective amendments),
has become effective under the Securities Act, (iii) an appropriate prospectus supplement
with respect to the applicable shares of Common Stock has been prepared, delivered and filed
in compliance with the Securities Act and the applicable rules and regulations thereunder,
(iv) if the applicable shares of Common Stock are to be sold pursuant to a purchase,
underwriting or similar agreement (an “Underwriting Agreement”), such Underwriting
Agreement with respect to the applicable shares of Common Stock in the form filed as an exhibit
to the Registration Statement, any post-effective amendment thereto or to a Current Report
on Form 8-K, has been duly authorized, executed and delivered by the Company and the
other parties thereto, (v) the terms of the sale of the Common Stock have been duly
established in conformity with the Company’s then operative Certificate of Incorporation
and Bylaws and do not violate any applicable law or result in a default under or breach of
any agreement or instrument binding on the Company and comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company, (vi) the
Common Stock has been issued and sold as contemplated by the Registration Statement and the
prospectus included therein, and (vii) the Company has received the consideration provided
for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Common
Stock will be validly issued, fully paid and nonassessable. |
| 2. | With respect to the Preferred Stock, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally
amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) an appropriate prospectus supplement with respect to the applicable shares
of Preferred Stock has been prepared, delivered and filed in compliance with the Securities
Act and the applicable rules and regulations thereunder, (iv) if the applicable
shares of Preferred Stock are to be sold pursuant to an Underwriting Agreement, such Underwriting
Agreement with respect to the applicable shares of Preferred Stock in the form filed as an
exhibit to the Registration Statement, any post-effective amendment thereto or to a Current
Report on Form 8-K, has been duly authorized, executed and delivered by the Company
and the other parties thereto, (v) an appropriate Certificate or Certificates of Amendment
or Designation relating to a class or series of the Preferred Stock to be sold under the
Registration Statement has been duly authorized and adopted and filed with the Secretary
of State of the State of Delaware prior to the issuance of the Preferred Stock, (vi) the
terms of issuance and sale of shares of such class or series of Preferred Stock have been
duly established in conformity with the Company’s then operative Certificate of Incorporation
and Bylaws and do not violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company, (vii) shares
of such class or series of Preferred Stock have been duly issued and sold as contemplated
by the Registration Statement and the prospectus included therein, and (viii) the Company
has received the consideration provided for in the Authorizing Resolutions and, if applicable,
the Underwriting Agreement, the Preferred Stock will be validly issued, fully paid and nonassessable. |
| Boston | Los
Angeles |
MIAMI |
New
York |
San
Diego |
San
Francisco |
toronto |
Washington |
| MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C. |
MINTZ
February 3, 2025
Page 4 | |
| 3. | With respect to the Debt Securities, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally
amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) the Senior Indenture or the Subordinated Indenture, whichever the case may
be, has been duly authorized, executed and delivered by the Company, (iv) an appropriate
prospectus supplement with respect to the applicable Debt Securities has been prepared, delivered
and filed in compliance with the Securities Act and the applicable rules and regulations
thereunder, (v) if the applicable Debt Securities are to be sold pursuant to an Underwriting
Agreement, such Underwriting Agreement with respect to the applicable Debt Securities in
the form filed as an exhibit to the Registration Statement, any post-effective amendment
thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered
by the Company and the other parties thereto; (vi) the terms of the Debt Securities
and of their issuance and sale have been duly established in conformity with the Senior Indenture
or the Subordinated Indenture, whichever the case may be, and do not violate any applicable
law or result in a default under or breach of any agreement or instrument binding upon the
Company and comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, (vii) such Debt Securities have been duly
executed and authenticated in accordance with the Senior Indenture or the Subordinated Indenture,
whichever the case may be, and issued and sold as contemplated in the Registration Statement
and the prospectus included therein, (viii) the Senior Indenture or the Subordinated
Indenture, whichever the case may be, relating to the Debt Securities has been qualified
under the Trust Indenture Act of 1939, as amended, and (ix) the Company has received
the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting
Agreement, the Debt Securities will constitute valid and legally binding obligations of the
Company. |
| 4. | With respect to the Warrants, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally
amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) the Warrant Agreement relating to the Warrants has been duly authorized,
executed, and delivered by the Company, (iv) an appropriate prospectus supplement with
respect to the applicable Warrants has been prepared, delivered and filed in compliance with
the Securities Act and the applicable rules and regulations thereunder, (v) if
the applicable Warrants are to be sold pursuant to an Underwriting Agreement, such Underwriting
Agreement with respect to the applicable Warrants in the form filed as an exhibit to the
Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K,
has been duly authorized, executed and delivered by the Company and the other parties thereto,
(vi) the terms of the Warrants and of their issuance and sale have been duly established
in conformity with the Warrant Agreement and do not violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, (vii) the Warrants have been duly executed and countersigned
in accordance with the Warrant Agreement and issued and sold as contemplated by the Registration
Statement and the prospectus included therein, and (viii) the Company has received the
consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting
Agreement, the Warrants will constitute valid and legally binding obligations of the Company. |
| 5. | With respect to the Rights, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally
amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) the Rights Agreement and any certificates relating to the Rights have been
duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus
supplement with respect to the applicable Rights has been prepared, delivered and filed in
compliance with the Securities Act and the applicable rules and regulations thereunder,
(v) if the applicable Rights are to be sold pursuant to an Underwriting Agreement, such
Underwriting Agreement with respect to the applicable Rights in the form filed as an exhibit
to the Registration Statement, any post-effective amendment thereto or to a Current Report
on Form 8-K, has been duly authorized, executed and delivered by the Company and the
other parties thereto, (vi) the terms of the Rights and of their issuance and sale have
been duly established in conformity with the Rights Agreement and any rights certificates
and do not violate any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company, (vii) the Rights
have been duly executed and countersigned in accordance with the Rights Agreement and issued
and sold as contemplated by the Registration Statement and the prospectus included therein,
and (viii) the Company has received the consideration provided for in the Authorizing
Resolutions and, if applicable, the Underwriting Agreement, the Rights will constitute valid
and legally binding obligations of the Company. |
| Boston | Los
Angeles |
MIAMI |
New
York |
San
Diego |
San
Francisco |
toronto |
Washington |
| MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C. |
MINTZ
February 3, 2025
Page 5 | |
| 6. | With respect to the Units, when (i) specifically authorized
for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally
amended (including all post-effective amendments), has become effective under the Securities
Act, (iii) the Unit Agreement relating to the Units has been duly authorized, executed,
and delivered by the Company, (iv) an appropriate prospectus supplement with respect
to the applicable Units has been prepared, delivered and filed in compliance with the Securities
Act and the applicable rules and regulations thereunder, (v) if the applicable
Units are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with
respect to the applicable Units in the form filed as an exhibit to the Registration Statement,
any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly
authorized, executed and delivered by the Company and the other parties thereto, (vi) the
terms of the Units and of their issuance and sale have been duly established in conformity
with the Unit Agreement and do not violate any applicable law or result in a default under
or breach of any agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company,
(vii) the Units have been duly executed and countersigned in accordance with the Unit
Agreement and issued and sold as contemplated by the Registration Statement and the prospectus
included therein, and (viii) the Company has received the consideration provided for
in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Units
will constitute valid and legally binding obligations of the Company. |
| 7. | With respect to the Sales Agreement Shares, such Sales Agreement
Shares have been duly authorized for issuance and, when (a) the Registration Statement
has become effective under the Securities Act, and (b) when the Sales Agreement Shares
have been issued and paid for in accordance with the terms and conditions of the Sales Agreement,
the Sales Agreement Shares will be validly issued, fully paid and non-assessable. |
We understand that you wish to file this opinion with the Commission
as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated
under the Securities Act and to reference the firm’s name under the caption “Legal Matters” in the prospectus which
forms part of the Registration Statement, and we hereby consent thereto. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission
promulgated thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
| |
|
| |
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
| Boston | Los
Angeles |
MIAMI |
New
York |
San
Diego |
San
Francisco |
toronto |
Washington |
| MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C. |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated March 28, 2024, with
respect to the financial statements of ArriVent BioPharma, Inc., incorporated herein by reference and to the reference to our firm
under the heading “Experts” in the prospectus.
Philadelphia, Pennsylvania
February 3, 2025
Exhibit 107
Calculation
of Filing Fee Table
Form S-3
(Form Type)
ArriVent
BioPharma, 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
Rule
or Carry
Forward
Rule |
|
Amount
Registered |
|
Proposed
Maximum
Offering
Price Per
Unit |
|
Maximum
Aggregate
Offering
Price |
|
Fee
Rate |
|
Amount
of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
Effective
Date |
|
Filing Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Newly Registered Securities |
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to be
Paid |
|
Equity |
|
Common Stock,
$0.0001 par
value |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Preferred
Stock,
$0.0001 par
value |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Debt |
|
Debt Securities |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Warrants |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Rights |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Other |
|
Units |
|
456(b) and 457(r) |
|
(1) |
|
(2) |
|
(2) |
|
(3) |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Equity |
|
Common Stock,
$0.0001 par
value |
|
Rule 457(o) |
|
(4) |
|
(2) |
|
$250,000,000 |
|
0.00015310 |
|
$38,275 |
|
|
|
|
|
|
|
|
|
Fees
Previously
Paid |
|
N/A |
|
N/A |
|
N/A |
|
N/A |
|
N/A |
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
| Carry Forward Securities |
|
Carry
Forward
Securities |
|
N/A |
|
N/A |
|
N/A |
|
N/A |
|
|
|
N/A |
|
|
|
|
|
N/A |
|
N/A |
|
N/A |
|
N/A |
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Offering Amount |
|
(2) |
|
(2) |
|
0.00015310 |
|
(3) |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total Fee Offsets |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Net Fee Due |
|
|
|
|
|
|
|
$38,275 |
|
|
|
|
|
|
|
|
(1) An
indeterminate amount of the securities of each identified class is being registered as may from time to time be offered hereunder at indeterminate
prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities
offered or sold hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
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 per security and aggregate offering prices per class of securities 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.E. of Form S-3 under the Securities Act. Separate consideration may or may not be received for
securities that are issuable on exercise, conversion or exchange of other securities, or that are issued in units.
(3) In
accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of all registration
fees other than the registration fee due in connection with $250,000,000 of shares of common stock that may be issued and sold from time
to time under the sale agreement prospectus supplement included in this registration statement. Any subsequent registration fees will
be paid on a “pay-as-you-go” basis in accordance with Rule 457(r).
(4) An
indeterminate number of shares of common stock is being registered as may from time to time be offered hereunder at indeterminate prices.
ArriVent BioPharma (NASDAQ:AVBP)
과거 데이터 주식 차트
부터 1월(1) 2025 으로 2월(2) 2025
ArriVent BioPharma (NASDAQ:AVBP)
과거 데이터 주식 차트
부터 2월(2) 2024 으로 2월(2) 2025
