As filed with the Securities
and Exchange Commission on November 2, 2015
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
THRESHOLD PHARMACEUTICALS,
INC.
(Exact name of registrant
as specified in its charter)
Delaware |
94-3409596 |
(State or other jurisdiction
of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
170 Harbor Way, Suite 300
South San Francisco, CA 94080
(650) 474-8200
(Address, including zip
code, and telephone number, including area code, of registrant’s principal executive offices)
Harold E. Selick, Ph.D.
Chief Executive Officer
Threshold Pharmaceuticals, Inc.
170 Harbor Way, Suite 300
South San Francisco, CA 94080
(650) 474-8200
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
Copy to:
Chadwick Mills
Cooley LLP
101 California Street
5th Floor
San Francisco, CA 94111-5800
(415) 693-2000
Approximate date of
commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box: x
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, or a smaller reporting company.
See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
¨ |
|
Accelerated filer |
x |
Non-accelerated filer |
¨ |
(Do not check if a smaller reporting company) |
Smaller reporting company |
¨ |
CALCULATION OF REGISTRATION
FEE
Title of Each Class of Securities to be Registered | |
Amount to be Registered | | |
Proposed Maximum Offering Price Per Share | | |
Proposed Maximum Aggregate Offering Price | | |
Amount of Registration Fee | |
Common Stock, par value $0.001 per share, including related rights to purchase Series A Participating Preferred Stock(1) | |
| | (2) | |
| | (3) | |
| | (3) | |
| | |
Preferred Stock, par value $0.001 per share | |
| | (2) | |
| | (3) | |
| | (3) | |
| | |
Debt Securities | |
| | (2) | |
| | (3) | |
| | (3) | |
| | |
Warrants | |
| | (2) | |
| | (3) | |
| | (3) | |
| | |
Total | |
| | (2) | |
| | | |
$ | 200,000,000 | | |
$ | 20,140 | |
| (1) | Each share of the Registrant’s common stock registered hereunder, if issued prior to the
termination of the Registrant’s rights agreement, dated as of August 8, 2006, as amended, between the Registrant and the
rights agent named therein, includes Series A Participating Preferred Stock purchase rights (the “Rights”). Prior to
the occurrence of certain events, the Rights will not be exercisable or evidenced separately from the Registrant’s common
stock, and have no value except as reflected in the market price of the shares of the Registrant’s common stock to which
they are attached. |
| (2) | There are being registered hereunder such indeterminate number of shares of common stock and preferred
stock, such indeterminate principal amount of debt securities, and such indeterminate number of warrants to purchase common stock,
preferred stock and/or debt securities as may be sold by the Registrant from time to time, which together shall have an aggregate
initial offering price not to exceed $200,000,000. If any debt securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to exceed
$200,000,000. Any securities registered hereunder
may be sold separately or in combination with other securities registered hereunder. The securities registered hereunder also include such indeterminate number of shares of common stock and
preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities
that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any of such securities.
In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as
a result of stock splits, stock dividends or similar transactions. |
| (3) | The proposed maximum aggregate offering price per class of security will be determined from time
to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified
as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
The Registrant hereby
amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains
two prospectuses:
| · | a base prospectus which covers the offering, issuance and sale of such indeterminate number of shares of common stock and preferred
stock, such indeterminate principal amount of debt securities, and such indeterminate number of warrants to purchase common stock,
preferred stock and/or debt securities, which together shall have an aggregate initial offering price not to exceed $200,000,000;
and |
| · | a sales agreement prospectus covering the offering, issuance and sale of up to $50,000,000 of shares of the Registrant’s
common stock that may be issued and sold under the sales agreement, dated November 2, 2015, between the Registrant and Cowen and
Company, LLC (the “Sales Agreement”). |
The base prospectus immediately follows this
explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus
supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The common stock that
may be offered, issued and sold under the sales agreement prospectus is included in the $200,000,000 of securities that may be
offered, issued and sold by the registrant under the base prospectus. Upon termination of the Sales Agreement, any portion of the
$50,000,000 included in the sales agreement prospectus that is not sold pursuant to the Sales Agreement will be available for sale
in other offerings pursuant to the base prospectus and the applicable prospectus supplement, and if no shares are sold under the
Sales Agreement, the full $50,000,000 of securities may be sold in other offerings pursuant to the base prospectus and the applicable
prospectus supplement.
The information in this prospectus is not complete
and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
NOVEMBER 2, 2015
Prospectus
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, we may offer and sell up
to $200,000,000 of any combination of the securities described in this prospectus, either individually or in combination with other
securities. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion
of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
We will provide the specific terms of these
offerings and securities in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses
to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may
also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference, before buying
any of the securities being offered.
Our common stock is listed on The NASDAQ Capital
Market under the trading symbol “THLD.” On October 30, 2015, the last reported sale price of our common stock
was $3.81 per share. The applicable prospectus supplement will contain information, where applicable, as to other listings,
if any, on The NASDAQ Capital Market or other securities exchange of the securities covered by the applicable prospectus supplement.
Investing in our securities involves
a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection
with a specific offering, and under similar headings in the documents that are incorporated by reference into this prospectus.
This prospectus may not be used to consummate
a sale of securities unless accompanied by a prospectus supplement.
The securities may be sold directly by us to
investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis.
For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus
is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment
options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect
to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is , 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process.
Under this shelf registration process, we may offer and sell shares of our common stock and preferred stock, various series of
debt securities and/or warrants to purchase any of such securities, either individually or in combination with other securities,
in one or more offerings, up to a total dollar amount of $200,000,000. This prospectus provides you with a general description
of the securities we may offer.
Each time we offer securities under this prospectus,
we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also
authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change any of the information contained in this prospectus or in the documents that we have incorporated by reference into this
prospectus. We urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses
we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference
as described under the heading “Incorporation of Certain Information by Reference,” before buying any of the securities
being offered.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on the information contained
in, or incorporated by reference into, this prospectus and the applicable prospectus supplement, along with the information contained
in any free writing prospectuses we have authorized for use in connection with a specific offering. We have not authorized anyone
to provide you with different or additional information. 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.
The information appearing in this prospectus,
any applicable prospectus supplement and any related free writing prospectus is accurate only as of the date on the front of the
document and any information we have incorporated by reference is accurate only as of the date of the document incorporated by
reference, regardless of the time of delivery of this prospectus, the applicable prospectus supplement or any related free writing
prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects may have changed
since those dates.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the section entitled “Where You Can Find More Information.”
PROSPECTUS SUMMARY
This summary highlights
selected information contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain
all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus,
the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities
discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing
prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should
also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the
exhibits to the registration statement of which this prospectus is a part.
Threshold Pharmaceuticals,
Inc.
Overview
We are a biotechnology company using our expertise
in the tumor microenvironment to discover and develop therapeutic agents that selectively target tumor cells for the treatment
of patients living with cancer. Our lead investigational small molecule, evofosfamide (formerly referred to as TH-302), is being
evaluated in two pivotal Phase 3 clinical trials, one registrational Phase 2 clinical trial and multiple earlier-stage clinical
trials. We have a global license and co-development agreement for evofosfamide with Merck KGaA, Darmstadt, Germany, with an option
to co-commercialize in the United States.
Evofosfamide was discovered by our scientists
based on our hypoxia-targeted therapeutics prodrug technology. Hypoxia, or abnormally low oxygen concentration, is a common feature
of the tumor microenvironment in most solid tumors and in the bone marrow of patients with hematological malignancies (also known
as cancers of the bone marrow, for example, leukemias and multiple myeloma). Tumor hypoxia is associated with the development of
resistance to traditional anticancer treatments, including chemotherapy and radiotherapy, enhanced metastatic potential, and ultimately
treatment failure. We believe that by virtue of targeting tumor hypoxia, evofosfamide may have broad clinical applicability across
many types of solid tumors and some hematological malignancies. To explore this broad therapeutic potential of evofosfamide, we
are conducting multiple clinical trials to evaluate its safety and efficacy in solid tumors and hematological malignancies in combination
with currently marketed anticancer drugs, including traditional chemotherapeutic agents and antiangiogenic agents, and as monotherapy
for certain cancers.
We are also engaged in the development of
tarloxotinib bromide (proposed International Nonproprietary Name), or tarloxotinib (formerly referred to as TH-4000 or PR610), a
hypoxia-activated, irreversible epidermal growth factor receptor tyrosine kinase inhibitor licensed from the University of
Auckland. Tarloxotinib is designed to selectively release a potent, irreversible tyrosine kinase inhibitor in hypoxic
tumors.
We have devoted substantially all of our resources to
the research and development of our product candidates. We have not generated any revenue from the commercial sales of our product
candidates since our inception and do not expect to generate any revenue from the commercial sales of our product candidates in
the immediate term. We expect to continue to devote substantial resources to research and development in future periods as we complete
our current clinical trials, start additional clinical trials under our collaboration with Merck KGaA and on our own, to support
our discovery efforts and to potentially in-license or otherwise acquire and develop additional products or programs.
Company Information
We were incorporated in Delaware
on October 17, 2001. Our principal executive offices are located at 170 Harbor Way Suite 300, South San Francisco 94080. Our telephone
number is (650) 474-8200. Our website is located at www.thresholdpharm.com. Information found on, or accessible through, our website
is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus or part
of any prospectus supplement. Our website address is included in this document as an inactive textual reference only.
“Threshold,” “Threshold
Pharmaceuticals,” the “Company,” “we,” “us” and “our” refer to Threshold
Pharmaceuticals, Inc. Threshold Pharmaceuticals, Inc., our logo, and Metabolic Targeting are our trademarks. Other trademarks,
trade names and service marks included or incorporated by reference in this prospectus and any prospectus supplement are the property
of their respective owners.
The Securities We May Offer
We may offer shares of our common
stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually
or in combination with other securities, with a total value of up to $200,000,000 from time to time under this prospectus, together
with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by market
conditions at the time of any offering. 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:
| · | designation or classification; |
| · | aggregate principal amount or aggregate offering price; |
| · | maturity date, if applicable; |
| · | original issue discount, if any; |
| · | rates and times of payment of interest or dividends, if any; |
| · | redemption, conversion, exercise, exchange or sinking fund terms, if any; |
| · | restrictive covenants, if any; |
| · | voting or other rights, if any; |
| · | conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion
or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; and |
| · | material or special U.S. federal income tax considerations, if any. |
The applicable prospectus supplement and
any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information
contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement or free writing
prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the
registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF
SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to investors
or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all
or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters, we will include
in the applicable prospectus supplement:
| · | the names of those agents or underwriters; |
| · | applicable fees, discounts and commissions to be paid
to them; |
| · | details regarding over-allotment options, if any; and |
Common Stock. We
may issue shares of our common stock from time to time. Each holder of our common stock is entitled to one vote for each share
on all matters submitted to a vote of the stockholders, except matters that relate only to one or more of the series of our preferred
stock, and no holder has cumulative voting rights. Accordingly, the holders of a majority of the shares of common stock entitled
to vote in any election of directors can elect all of the directors standing for election, if they so choose. Subject to preferences
that may be applicable to any then outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends,
if any, as may be declared from time to time by the board of directors out of legally available funds. In the event of our
liquidation, dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available
for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation
preference granted to the holders of any outstanding shares of preferred stock. Holders of common stock have no preemptive or conversion
rights or other subscription rights, and there are no redemption or sinking fund provisions applicable to the common stock. When
we issue shares of common stock under this prospectus, the shares will be fully paid and nonassessable. The rights, preferences
and privileges of the 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 which we may designate in the future. In this prospectus, we have summarized certain general features
of the common stock under “Description of Capital Stock—Common Stock.” We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to any common
stock being offered.
Preferred Stock. We
may issue shares of our preferred stock from time to time, in one or more series. Under our amended and restated certificate of
incorporation, our board of directors has the authority to designate up to 2,000,000 shares of preferred stock in one or more series
and to fix the rights, preferences and privileges of each series of preferred stock, any or all of which may be greater than the
rights of the common stock. Our board of directors has previously designated 200,000 of the 2,000,000 authorized shares of preferred
stock as Series A Participating Preferred stock (see “Description of Capital Stock— Preferred Shares Rights Agreement;
Series A Participating Preferred Stock”). We are not offering any of the previously designated series of preferred stock
under this prospectus. If we sell any new series of preferred stock under this prospectus and any applicable prospectus supplement,
our board of directors will determine the rights, preferences and privileges of the preferred stock being offered, as well as the
qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, voting rights, preemptive rights,
terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series
or the designation of any series. Preferred stock may be convertible into our common stock or other securities of ours, or may
be exchangeable for debt securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion
rates. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of the certificate of designation that describes the terms of the series of preferred
stock that we are offering before the issuance of the related series of preferred stock. In this prospectus, we have summarized
certain general features of the preferred stock under “Description of Capital Stock—Preferred Stock.” We urge
you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be
provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that
contains the terms of the applicable series of preferred stock.
Debt Securities. We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated
debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument
governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for
our common stock or our other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed
conversion rates.
The
debt securities will be issued under an indenture that we will enter into with a national banking association or other eligible
party, as trustee. In this prospectus, we have summarized certain general features of the debt securities under “Description
of Debt Securities.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus
that we may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indenture
and any supplemental indentures that contain the terms of the debt securities. We have filed the form of indenture as an exhibit
to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants. We
may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue
warrants independently or in combination with common stock, preferred stock and/or debt securities. In this prospectus, we have
summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to read
the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related
to the particular series of warrants being offered, as well as the form of warrant and/or the warrant agreement and warrant certificate,
as applicable, that contain the terms of the warrants. We have filed the forms of the warrant agreements and forms of warrant certificates
containing the terms of the warrants that we may offer as exhibits to the registration statement of which this prospectus is a
part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance
of such warrants.
Warrants may be issued under
a warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if
any, in the applicable prospectus supplement relating to a particular series of warrants.
Use of Proceeds
Except as described in any applicable
prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we
currently intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including
research and development expenses, general and administrative expenses and manufacturing expenses. See “Use of Proceeds”
on page 6 of this prospectus.
NASDAQ Capital Market Listing
Our common stock is listed on The
NASDAQ Capital Market under the symbol “THLD.”
RISK FACTORS
Investing in our securities involves a high
degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties
described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing
prospectus, and discussed under the section entitled “Risk Factors” contained in our most recent annual report on Form
10-K and in our most recent quarterly report on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with
the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus,
the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with a specific
offering. The risks described in these documents are not the only ones we face, but those that we consider to be material. There
may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse
effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical
trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business,
financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our securities
to decline, resulting in a loss of all or part of your investment. Please also carefully read the section below entitled “Forward-Looking
Statements.”
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed
with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section
27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and
involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements
to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
Forward-looking statements may include, but are not limited to, statements about:
| · | the clinical development of evofosfamide and tarloxotinib, and their expected uses and benefits; |
| · | anticipated clinical developmental events for evofosfamide and tarloxotinib, including the timing of the commencement, conduct
and completion of clinical trials for evofosfamide and tarloxotinib, and the timing of any efficacy and/or safety analyses from
ongoing trials; |
| · | anticipated milestone payments from Merck KGaA; |
| · | the success of any clinical trials that we and/or Merck KGaA commence; |
| · | our and Merck KGaA’s potential receipt of regulatory approvals, and our and Merck KGaA’s satisfaction of ongoing
regulatory review; |
| · | our and Merck KGaA’s ability to timely develop a viable commercial formulation of evofosfamide; |
| · | whether any product candidates that we and/or Merck KGaA are able to commercialize are safer or more effective than other marketed
products, treatments or therapies; |
| · | uncertainties associated with obtaining and enforcing patents and other intellectual property rights; |
| · | the costs and timing of obtaining drug supply for our pre-clinical and clinical activities; |
| · | anticipated expenses, including clinical trial, research and development and personnel costs; |
| · | the anticipated sufficiency of our cash resources and our need for additional capital; |
| · | our projected financial performance; |
| · | the clinical development of [18-F]-HX4 and its expected uses and benefits; and |
| · | our intended use of the net proceeds from offerings of
our securities under this prospectus. |
In some cases, you can identify forward-looking
statements by terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,”
“may,” “plans,” “potential,” “predicts,” “projects,” “should,”
“would,” “will” and similar expressions intended to identify forward-looking statements. These statements
reflect our current views with respect to future events, are based on assumptions and are subject to risks and uncertainties. Given
these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail, and
incorporate by reference into this prospectus in their entirety, many of these risks and uncertainties under the heading “Risk
Factors” contained in the applicable prospectus supplement, in any free writing prospectus we may authorize for use in connection
with a specific offering, and in our most recent annual report on Form 10-K and in our most recent quarterly report on Form 10-Q,
as well as any amendments thereto reflected in subsequent filings with the SEC. Also, these forward-looking statements represent
our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required by law,
we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments.
Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such
forward-looking statements. You should read this prospectus, the applicable prospectus supplement, together with the documents
we have filed with the SEC that are incorporated by reference and any free writing prospectus we have authorized for use in connection
with a specific offering completely and with the understanding that our actual future results may be materially different from
what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
FINANCIAL RATIOS
The following table sets forth our ratio of
earnings to fixed charges. We have not included a ratio of earnings to combined fixed charges and preferred stock dividends because
we do not have any preferred stock outstanding and did not have any preferred stock outstanding during any of the periods presented.
Our net losses were inadequate to cover fixed charges for each of the periods presented. Because of these deficiencies, ratio information
is not applicable.
|
|
Year Ended December 31, |
|
|
Nine
Months
Ended
September
30, |
|
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
|
2015 |
|
Ratio of earnings to fixed charges (1) |
|
|
N/A |
(2) |
|
|
N/A |
(2) |
|
|
N/A |
(2) |
|
|
N/A |
(2) |
|
|
N/A |
(2) |
|
|
N/A |
(2) |
| (1) | The ratio of earnings to fixed charges was computed by dividing earnings by fixed charges. For this purpose, earnings consist
of net loss before fixed charges. Fixed charges consist of interest expense and estimated
interest component of rent expense. |
| (2) | Earnings were insufficient to cover fixed charges for
each of the periods presented. The amount of the coverage deficiency was $18.7 million, $25.7 million, $71.1 million, $28.2 million
and $21.8 million for the years ended December 31, 2010, 2011, 2012, 2013 and 2014, respectively, and $25.9 million for the nine
months ended September 30, 2015. |
USE OF PROCEEDS
Except as described in any applicable prospectus
supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently
intend to use the net proceeds from the sale of securities under this prospectus, if any, for working capital and general corporate
purposes, including research and development expenses, general and administrative expenses and manufacturing expenses.
The amounts and timing of our use of the net
proceeds from any offerings hereunder will depend on a number of factors, such as the timing
and progress of our clinical trials and research and development efforts, the timing and progress of any partnering efforts, technological
advances and the competitive environment for our product candidates. As of the date
of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from offerings hereunder.
Accordingly, our management will have broad discretion in the timing and application of these proceeds. Pending application of
the net proceeds as described above, we intend to temporarily invest the proceeds in short-term, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
As of
the date of this prospectus, our authorized capital stock consists of 150,000,000 shares of common stock, par value $0.001 per
share, and 2,000,000 shares of preferred stock, par value $0.001 per share. As of September 30, 2015, there were 71,431,059 shares
of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
The following summary description
of our capital stock is based on the provisions of our amended and restated certificate of incorporation, as amended, our amended
and restated bylaws, the applicable provisions of the Delaware General Corporation Law and the agreements described below. This
information may not be complete in all respects and is qualified entirely by reference to the provisions of our amended and restated
certificate of incorporation, our amended and restated bylaws, the Delaware General Corporation Law and such agreements. For information
on how to obtain copies of our amended and restated certificate of incorporation, our amended and restated bylaws and such agreements,
which are exhibits to the registration statement of which this prospectus forms a part, see “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference.”
Common Stock
Each holder of common stock
is entitled to one vote for each share on all matters submitted to a vote of the stockholders, except matters that relate only
to one or more of the series of our preferred stock, and no holder has cumulative voting rights. Accordingly, the holders of a
majority of the shares of common stock entitled to vote in any election of directors can elect all of the directors standing for
election, if they so choose. Subject to preferences that may be applicable to any then outstanding preferred stock, holders of
common stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by the board of directors
out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled
to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and
other liabilities and the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred
stock. Holders of common stock have no preemptive or conversion rights or other subscription rights, and there are no redemption
or sinking fund provisions applicable to the common stock. When we issue shares of common stock under this prospectus, the shares
will be fully paid and nonassessable. The rights, preferences and privileges of the 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 which we may designate in the
future.
Preferred Stock
Pursuant
to our amended and restated certificate of incorporation, our board of directors is authorized, subject to any limitations prescribed
by law, without stockholder approval, to issue up to an aggregate of 2,000,000 shares of preferred stock, of which 200,000 shares
are authorized for issuance as Series A Participating Preferred Stock (see “Preferred Shares Rights Agreement; Series A Participating
Preferred Stock” below), none of which are outstanding. Our board of directors may issue preferred stock in one or more series
and has the authority to establish from time to time the number of shares to be included in each such series, to fix the rights,
preferences, privileges and restrictions granted to or imposed upon the preferred stock, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation preferences. The rights of the holders of common stock will be subject
to, and may be adversely affected by, the rights of holders of any preferred stock that may be issued in the future. Issuance of
preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could have
the effect of delaying, deferring or preventing a change in control of us and may adversely affect the market price of our common
stock and the voting and other rights of the holders of our common stock.
Our
board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of
each series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation
relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part
the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before
the issuance of the related series of preferred stock. We will also describe in the applicable prospectus supplement the
terms of the series of preferred stock being offered, including:
| · | the title and stated value; |
| · | the number of shares we are offering; |
| · | the liquidation preference per share; |
| · | the purchase price per share; |
| · | the dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
| · | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
| · | our right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
| · | the procedures for any auction and remarketing, if any; |
| · | the provisions for a sinking fund, if any; |
| · | the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption
and repurchase rights; |
| · | any listing of the preferred stock on any securities exchange or market; |
| · | whether the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and,
if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be
adjusted; |
| · | whether the preferred stock will be exchangeable for debt securities, and, if applicable, the exchange period, the exchange
price, or how it will be calculated, and under what circumstances it may be adjusted; |
| · | voting rights, if any, of the preferred stock; |
| · | preemption rights, if any; |
| · | restrictions on transfer, sale or other assignment, if any; |
| · | a discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
| · | the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs; |
| · | any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of
preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
| · | any other specific terms, rights, preferences, privileges,
qualifications or restrictions of the preferred stock. |
When we issue shares of preferred stock under
this prospectus, the shares will be fully paid and nonassessable.
Unless we specify otherwise in the
applicable prospectus supplement, the preferred stock will rank, with respect to dividends and upon our liquidation, dissolution
or winding up:
| · | senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock; |
| · | on a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a
parity with the preferred stock; and |
| · | junior to all of our equity securities the terms of which
specifically provide that the equity securities rank senior to the preferred stock. |
The term “equity securities” does
not include convertible debt securities.
The General
Corporation Law of the State of Delaware, the state of our incorporation, provides that the holders of preferred stock will have
the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred
stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Preferred Shares Rights Agreement; Series
A Participating Preferred Stock
On August 8, 2006,
we entered into a Preferred Shares Rights Agreement, which we refer to as the Rights Agreement, with Mellon Investor Services LLC
pursuant to which each share of our common stock outstanding has attached to it one right, or a Right, to purchase Series A Participating
Preferred Stock. The Rights currently trade with, and are inseparable from, our common stock. The Rights are not currently exercisable
and will become exercisable only if (i) a person or group, which we refer to as an Acquiring Person, acquires beneficial ownership
of 15% or more of our outstanding common stock or (ii) a tender or exchange offer is commenced that would result in a person
or group becoming a beneficial owner of 15% or more of our outstanding common stock. Each Right allows its holder to purchase from
us one one-thousandth of a share of Series A Participating Preferred Stock at a purchase price of $25.00, subject to adjustment,
or the Purchase Price.
In the event that
an Acquiring Person becomes such, other than pursuant to a tender offer approved by our board of directors, proper provision shall
be made so that each holder of a Right that has not yet been exercised (other than Rights beneficially owned by the Acquiring Person,
which will thereafter be void) will thereafter have the right to receive upon exercise of a Right, in lieu of one one-thousandth
of a share of our Series A Participating Preferred Stock, a number of shares of our common stock having a then current value equal
to two times the Purchase Price. In the event that we do not have a sufficient number of shares of our common stock available,
or our board of directors decides that such action is necessary or appropriate and not contrary to the interests of Rights holders,
we may, among other things, instead substitute cash, assets or other securities for the shares of common stock into which the Rights
would have otherwise been exercisable. Similarly, in the event that, after the public announcement that an Acquiring Person has
become such, (i) we consolidate with or merge into another entity, (ii) another entity consolidates with or merges into
us or (iii) we sell or otherwise transfer 50% or more of our consolidated assets or earning power, proper provision must be
made so that each holder of a Right which has not theretofore been exercised (other than Rights beneficially owned by the Acquiring
Person, which will thereafter be void) will thereafter have the right to receive, upon exercise, a number of shares of common stock
of the acquiring company having a then current value equal to two times the Purchase Price (unless the transaction satisfies certain
conditions and is consummated with a person who acquired shares pursuant to a tender offer approved by our board, in which case
the Rights will expire).
Until a Right is exercised,
the holder thereof, as such, will have no rights as a stockholder of our company (other than any rights resulting from such holder’s
ownership of shares of our capital stock), including, without limitation, the right to vote or to receive dividends. The Rights
are protected by customary anti-dilution provisions as set forth in the Rights Agreement. At any time after an Acquiring Person
has become such and prior to the Acquiring Person beneficially owning 50% or more of our outstanding common stock, our board of
directors may exchange the Rights (other than Rights owned by the Acquiring Person or its affiliates), in whole or in part, for
shares of our common stock at an exchange ratio of one share of common stock per Right, subject to adjustment. At any time prior
to the close of business on August 8, 2016, we may redeem the Rights in whole, but not in part, at a price of $0.01 per Right.
Each share of Series
A Participating Preferred Stock will be entitled to an aggregate dividend of 1,000 times the dividend declared per share of our
common stock. In the event of liquidation, the holders of shares of our Series A Participating Preferred Stock will be entitled
to a preferential liquidation payment equal to accrued but unpaid dividends plus the greater of $1,000 per share or 1,000 times
the aggregate per share amount to be distributed to the holders of shares of our common stock. Each share of our Series A Participating
Preferred Stock will have 1,000 votes, voting together with the holders of shares of our common stock and any other capital stock
of our company having general voting rights, on all matters submitted to a vote of the stockholders, except as required by law
and subject to certain adjustments set forth in the Certificate of Designations of Rights, Preferences and Privileges of the Series
A Participating Preferred Stock. In the event of any merger, consolidation or other transaction in which shares of our common stock
are changed or exchanged, each share of Series A Participating Preferred Stock will be entitled to receive the greater of $1,000
per share or 1,000 times the amount received per share of our common stock. The Series A Participating Preferred Stock will rank
junior to all other series of our preferred stock as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise. The shares of our Series A Participating Preferred Stock are not redeemable and have
no preemptive, subscription or conversion rights.
The Rights
expire on August 8, 2016, unless we extend the expiration date, redeem or exchange the Rights on an earlier date or the Rights
expire upon consummation of certain mergers, consolidations or sales of assets. Effective July 10, 2008, September 29,
2009 and March 11, 2011, we amended the terms of the Rights to ensure that they would not become exercisable solely by virtue
of our sales of securities completed on August 29, 2008, October 5, 2009 and March 11, 2011, respectively. The Rights
may have the effect of rendering more difficult or discouraging an acquisition of us that is deemed undesirable by our board of
directors. The Rights have certain anti-takeover effects and may cause substantial dilution to a person or group that attempts
to acquire us on terms or in a manner not approved by our board of directors, except pursuant to an offer conditioned upon the
negation, purchase or redemption of the Rights.
Effect of Certain Provisions of our Amended and Restated Certificate
of Incorporation and Bylaws and the Delaware Anti-Takeover Statute
Some provisions of
Delaware law and our amended and restated certificate of incorporation and bylaws contain provisions that could make the following
transactions more difficult:
| · | acquisition of us by means of a tender offer; |
| · | acquisition of us by means of a proxy contest or otherwise; or |
| · | removal of our incumbent officers and directors. |
These provisions,
summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids and to promote stability
in our management. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate
with our board of directors.
Amended and
Restated Certificate of Incorporation and Bylaws
| · | Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board
of directors to issue one or more series of preferred stock with voting or other rights or preferences that could impede the success
of any attempt to change control of us. |
| · | Stockholder Meetings. Our amended and restated certificate of incorporation and amended and restated bylaws provide
that a special meeting of stockholders may be called only by the chairman of our board of directors or by our president, or by
a resolution adopted by a majority of our board of directors. |
| · | Requirements for Advance Notification of Stockholder Nominations and Proposals. Our amended and restated bylaws establish
advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other
than nominations made by or at the direction of our board of directors or a committee of the board of directors. |
| · | Elimination of Stockholder Action by Written Consent. Our amended and restated certificate of incorporation eliminates
the right of stockholders to act by written consent without a meeting. |
| · | Amendment of Bylaws. Any amendment of our amended and restated bylaws by our stockholders requires approval by holders
of at least 66 2/3% of our then outstanding
shares entitled to vote generally in the election of directors, voting together as a single class. |
| · | Staggered Board of Directors. Our amended and restated certificate of incorporation provide for the division of
our board of directors into three classes, with staggered three-year terms. Under our amended and restated certificate of incorporation
and amended and restated bylaws, any vacancy on the board of directors, including a vacancy resulting from an enlargement of the
board of directors, may only be filled by vote of a majority of the directors then in office. The classification of the board of
directors and the limitations on the removal of directors and filling of vacancies would have the effect of making it more difficult
for a third party to acquire control of us, or of discouraging a third party from acquiring control of us. |
Delaware Law
We are subject to Section 203 of the General Corporation Law
of the State of Delaware, or DGCL, which regulates acquisitions of some Delaware corporations. In general, Section 203 prohibits,
with some exceptions, a publicly held Delaware corporation such as us from engaging in a “business combination” with
an “interested stockholder” for a period of three years following the time that the stockholder became an interested
stockholder, unless:
|
• |
|
prior to the time the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
|
• |
|
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
|
• |
|
at or subsequent to the time the stockholder became an interested stockholder, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
Section 203 of the DGCL generally defines a “business
combination” to include any of the following:
|
• |
|
any merger or consolidation involving the corporation and the interested stockholder; |
|
• |
|
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) involving the interested stockholder of 10% or more of the assets of the corporation (or its majority-owned subsidiary); |
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• |
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
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• |
|
subject to exceptions, any transaction involving the corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; and |
|
• |
|
the receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of such corporation), of any loans, advances, guarantees, pledges or other financial benefits, other than certain benefits set forth in Section 203, provided by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation
and any entity or person that is an affiliate or associate of such entity or person.
Section 203 of the DGCL could delay, discourage or prohibit
transactions not approved in advance by our board of directors, such as takeover attempts that might otherwise involve the payment
to our stockholders of a premium for their shares over then current prices.
Certain Registration Obligations
In August 2008, we sold to certain investors
8,970,574 shares of our common stock and warrants to purchase up to 3,588,221 shares of our common stock in a private placement,
which we refer to as the August 2008 Financing. The securities purchase agreement for the August 2008 Financing provides that we
will file and thereafter maintain an effective registration statement covering the resale of the shares issued in, and the shares
underlying the warrants issued in, the August 2008 Financing, and further includes terms that may require us to pay liquidated
damages if we do not meet our registration obligations under the agreement. For example, the securities purchase agreement
provides that if we fail to maintain the effectiveness of such registration statement (subject to limited permissible suspension
periods), we will be required to pay the holders of such shares liquidated damages at the rate of one percent of the
purchase price of these shares and warrants for the first month, and two percent for each month thereafter, up to a total of ten
percent. The registration statement we filed covering the resale of the shares and shares underlying the warrants sold in this
transaction was declared effective by the SEC in October 2008. These registration obligations will terminate upon the earlier of
the date that all registrable securities covered by such registration statement have been sold or can be sold publicly under Rule
144 without volume restrictions.
In October 2009, we sold to certain investors
18,324,599 shares of our common stock and warrants to purchase up to 7,329,819 shares of our common stock in a private placement,
which we refer to as the October 2009 Financing. The securities purchase agreement for the October 2009 Financing provides that
we will file and thereafter maintain an effective registration statement covering the resale of the shares issued in, and the shares
underlying the warrants issued in, the October 2009 Financing. The registration statement we filed covering the resale of the shares
and shares underlying the warrants sold in this transaction was declared effective by the SEC in November 2009. These registration
obligations will terminate upon the date that all registrable securities covered by such registration statement have been sold
or can be sold without volume restriction under Rule 144.
Transfer Agent and Registrar
The transfer agent and registrar for our
common stock is Computershare, Trust Company, N.A., P.O. Box 30170, College Station, TX 77842.
The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in
the applicable prospectus supplement for that series.
Listing on The NASDAQ Capital Market
Our common stock is listed on The NASDAQ Capital
Market under the symbol “THLD.”
DESCRIPTION OF DEBT SECURITIES
We may
issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under
this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities.
We will
issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture
as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this
prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The following summary of material
provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions
of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements
and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the
complete indenture that contains the terms of the debt securities.
General
The indenture
does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain
any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations
and financial condition or transactions involving us.
We may
issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount,
may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment
and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities
issued with OID will be described in more detail in any applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
| · | the title of the series of debt securities; |
| · | any limit upon the aggregate principal amount that may be issued; |
| · | the maturity date or dates; |
| · | the form of the debt securities of the series; |
| · | the applicability of any guarantees; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any
secured debt; |
| · | whether the debt securities rank as senior debt, senior subordinated debt, subordinated
debt or any combination thereof, and the terms of any subordination; |
| · | if the price (expressed as a percentage of the aggregate principal amount thereof) at
which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount
of such debt securities that is convertible into another security or the method by which any such portion shall be determined; |
| · | the interest rate or rates, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest
payment dates or the method for determining such dates; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral
period; |
| · | if applicable, the date or dates after which, or the period or periods during which,
and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional
redemption provisions and the terms of those redemption provisions; |
| · | the date or dates, if any, on which, and the price or prices at which we are obligated,
pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to
purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
| · | the denominations in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple thereof; |
| · | any and all terms, if applicable, relating to any auction or remarketing of the debt
securities of that series and any security for our obligations with respect to such debt securities and any other terms which may
be advisable in connection with the marketing of debt securities of that series; |
| · | whether the debt securities of the series shall be issued in whole or in part in the
form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be
exchanged in whole or in part for other individual securities; and the depositary for such global security or securities; |
| · | if applicable, the provisions relating to conversion or exchange of any debt securities
of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our
option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner
of settlement for any conversion or exchange; |
| · | if other than the full principal amount thereof, the portion of the principal amount
of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
| · | additions to or changes in the covenants applicable to the particular debt securities
being issued, including, among others, the consolidation, merger or sale covenant; |
| · | additions to or changes in the events of default with respect to the securities and any
change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect
to such securities to be due and payable; |
| · | additions to or changes in or deletions of the provisions relating to covenant defeasance
and legal defeasance; |
| · | additions to or changes in the provisions relating to satisfaction and discharge of the
indenture; |
| · | additions to or changes in the provisions relating to the modification of the indenture
both with and without the consent of holders of debt securities issued under the indenture; |
| · | the currency of payment of debt securities if other than U.S. dollars and the manner
of determining the equivalent amount in U.S. dollars; |
| · | whether interest will be payable in cash or additional debt securities at our or the
holders’ option and the terms and conditions upon which the election may be made; |
| · | the terms and conditions, if any, upon which we will pay amounts in addition to the stated
interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United
States person” for federal tax purposes; |
| · | any restrictions on transfer, sale or assignment of the debt securities of the series;
and |
| · | any other specific
terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions
of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable
prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock
or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of
our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant
that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume
all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default Under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indenture with respect to any series of debt securities that we may issue:
| · | if we fail to pay any installment of interest on any series of debt securities, as and
when the same becomes due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension
of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default
in the payment of interest for this purpose; |
| · | if we fail to pay the principal of, or premium, if any, on any series of debt securities
as and when the same becomes due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of
the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a
default in the payment of principal or premium, if any; |
| · | if we fail to observe or perform any other covenant or agreement contained in the debt
securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure
continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such
is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and |
| · | if specified events
of bankruptcy, insolvency or reorganization occur. |
If an
event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid
principal amount of premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified
in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of
debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any
holder.
The holders
of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default
with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure
the default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series, provided that:
| · | the direction so given by the holder is not in conflict with any law or the applicable
indenture; and |
| · | subject to its duties
under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
| · | the holder has given written notice to the trustee of a continuing event of default with
respect to that series; |
| · | the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made written request, such holders have offered to the trustee indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred by the trustee in compliance with the request; and |
| · | the trustee does
not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding
debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We will periodically file
statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and
the trustee may change an indenture without the consent of any holders with respect to specific matters:
| · | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities
of any series; |
| · | to comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;” |
| · | to provide for uncertificated debt securities in addition to or in place of certificated
debt securities; |
| · | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the
occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event
of default or to surrender any right or power conferred upon us in the indenture; |
| · | to add to, delete from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
| · | to make any change that does not adversely affect the interests of any holder of debt
securities of any series in any material respect; |
| · | to provide for the issuance of and establish the form and terms and conditions of the
debt securities of any series as provided above under “Description of Debt Securities—General” to establish the
form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or
to add to the rights of the holders of any series of debt securities; |
| · | to evidence and provide for the acceptance of appointment under any indenture by a successor
trustee; or |
| · | to comply with any
requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the
written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each
series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of
debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt
securities affected:
| · | extending the fixed maturity of any debt securities of any series; |
| · | reducing the principal amount, reducing the rate of or extending the time of payment
of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or |
| · | reducing the percentage
of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations to:
| · | register the transfer or exchange of debt securities of the series; |
| · | replace stolen, lost or mutilated debt securities of the series; |
| · | pay principal of and premium and interest on any debt securities of the series; |
| · | maintain paying agencies; |
| · | hold monies for payment in trust; |
| · | recover excess money held by the trustee; |
| · | compensate and indemnify the trustee; and |
| · | appoint any successor trustee. |
In order to exercise our rights
to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any
premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will
issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the
applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we
may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and
as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the
option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt
securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with
the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security
registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities
that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange,
but we may require payment of any taxes or other governmental charges.
We will
name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
| · | 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 |
| · | register the transfer
of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt
securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during
the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically
set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care
as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under
no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it
is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at
the close of business on the regular record date for the interest.
We will
pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect
to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially
designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt
securities of a particular series.
All money we pay to a paying
agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed
at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder
of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture
and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent
that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the
additional information we may include in any applicable prospectus supplement and free writing prospectus, summarizes the material
terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common
stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently or in
combination with common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we have
summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will
apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable
prospectus supplement for a particular series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and forms of warrant
certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus
is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance
of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their
entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We urge
you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus,
as well as any related free writing prospectus, and the complete form of warrant and/or the warrant agreement and warrant certificate,
as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable
prospectus supplement the terms of the series of warrants being offered, including:
| · | the offering price and aggregate number of warrants offered; |
| · | the currency for which the warrants may be purchased; |
| · | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security; |
| · | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
| · | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such
exercise; |
| · | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
| · | the terms of any rights to redeem or call the warrants; |
| · | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
| · | the dates on which the right to exercise the warrants will commence and expire; |
| · | the manner in which the warrant agreements and warrants may be modified; |
| · | a discussion of material or special U.S. federal income tax considerations, if any, of holding or exercising the warrants; |
| · | the terms of the securities issuable upon exercise of the warrants; and |
| · | any other specific terms, preferences, rights or limitations
of or restrictions on the warrants. |
Before exercising their warrants,
holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
| · | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
| · | in the case of warrants to purchase common stock or preferred
stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting
rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase
the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered.
Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business
on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business
on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant or warrant certificate,
as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other office,
including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a
new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement,
the warrants and any warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant.
A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty
or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent
of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its warrants.
Outstanding Warrants
As of
September 30, 2015, we had outstanding warrants to purchase an aggregate of 3,836,165 shares of our common stock with an exercise
price of $2.46 per share, or the March 2011 Warrants. The exercise price and/or the number of shares of common stock issuable upon
exercise of the March 2011 Warrants are subject to adjustment in
the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting
our common stock.
As of
September 30, 2015, we also had outstanding warrants to purchase an aggregate of 8,300,000 shares of our common stock with
an initial exercise price of $10.86 per share,
or the February 2015 Warrants. On the 30th trading day following
the earlier of (i) the date two years from the issuance date of the February 2015 Warrants or (ii) the later to occur of (a) the
date on which top-line efficacy data from our Phase 3 clinical trial of evofosfamide plus doxorubicin versus doxorubicin alone
in patients with locally advanced unresectable or metastatic soft tissue sarcoma is publicly announced by us or (b) the date on
which top-line efficacy data from the Phase 3 MAESTRO clinical trial of evofosfamide in combination with gemcitabine in patients
with previously untreated, locally advanced unresectable or metastatic pancreatic adenocarcinoma is publicly announced by us, the
warrant exercise price will be adjusted to equal the average of the volume-weighted average price of our common stock for each
of the 20 trading days immediately preceding the applicable date, provided that in no event will the exercise price be adjusted
above $10.86 or below $3.62. After the date of foregoing adjustment to the warrant exercise price, or the Adjustment Date, the
exercise price of the February 2015 Warrants will then be subject to price-based anti-dilution protection such that to the extent
we issue and sell any shares of common stock, or any securities convertible or exchangeable for shares of common stock (in each
case subject to certain exceptions), at a price per share below the warrant exercise price then in effect, the warrant exercise
price will be adjusted downward to equal the price at which such securities are issued and sold by us (but in no event will the
warrant exercise price be reduced below $3.62 per share). The exercise price and/or
the number of shares of common stock issuable upon exercise of the February 2015 Warrants
are also subject to adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications
or similar events affecting our common stock. In addition, subject to the satisfaction of certain conditions set forth in the February
2015 Warrants, at our option, we have the right to force the holders of the February 2015 Warrants to exercise their February 2015
Warrants in full if the volume-weighted average price of our common stock for any 20 consecutive trading-day period beginning after
the 90th day following the Adjustment Date exceeds $18.00 per share.
LEGAL OWNERSHIP OF SECURITIES
We may issue securities in registered form or in the form of one
or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities
registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose
as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued
in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form
only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global
securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions
that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants,
in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is
registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the
depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the
holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments
it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary
and its participants do so under agreements they have made with one another or with their customers; they are not obligated to
do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities
directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution
that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue
securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street
name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial
institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account
he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities,
and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers
who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations
of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities.
We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect
means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are
issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder,
we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants
or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval
of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular
provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect
holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations for Indirect Holders
If you hold securities through a
bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution
to find out:
| · | the performance of third party service providers; |
| · | how it handles securities payments and notices; |
| · | whether it imposes fees or charges; |
| · | how it would handle a request for the holders’ consent, if ever required; |
| · | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted
in the future; |
| · | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to
act to protect their interests; and |
| · | if the securities are in book-entry form, how the depositary’s
rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global
securities will have the same terms.
Each security issued in book-entry form will
be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that
we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the
applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to
or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination
situations arise. We describe those situations below under the section entitled “Special Situations When a Global Security
Will Be Terminated” in this prospectus. As a result of these arrangements, the depositary, or its nominee, will be the sole
registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial
interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial
institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security
is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest
in the global security.
If the prospectus supplement for a particular security indicates
that the security will be issued in global form only, then the security will be represented by a global security at all times unless
and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing
system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating to
a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as
well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in
the form of a global security, an investor should be aware of the following:
| · | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for
his or her interest in the securities, except in the special situations we describe below; |
| · | an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection
of his or her legal rights relating to the securities, as we describe above; |
| · | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that
are required by law to own their securities in non-book-entry form; |
| · | an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing
the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
| · | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global security; |
| · | we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of
ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way; |
| · | the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security
within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
| · | financial institutions that participate in the depositary’s
book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting
payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security
Will Be Terminated
In a few special situations described below,
the global security will terminate and interests in it will be exchanged for physical certificates representing those interests.
After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors
must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so
that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the
applicable prospectus supplement, the global security will terminate when the following special situations occur:
| · | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global
security and we do not appoint another institution to act as depositary within 90 days; |
| · | if we notify any applicable trustee that we wish to terminate that global security; or |
| · | if an event of default has occurred with regard to securities
represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also
list additional situations for terminating a global security that would apply only to the particular series of securities covered
by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee,
is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from
time to time pursuant to underwritten public offerings, “at-the-market” offerings, negotiated transactions, block trades
or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly
to one or more purchasers. We may distribute securities from time to time in one or more transactions:
| · | at a fixed price or prices, which may be changed; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to such prevailing market prices; or |
A prospectus supplement or supplements
(and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of
the securities, including, to the extent applicable:
| · | the name or names of the underwriters, if any; |
| · | the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale; |
| · | any over-allotment options under which underwriters may purchase additional securities from us; |
| · | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
| · | any public offering price; |
| · | any discounts or concessions allowed or reallowed or paid to dealers; and |
| · | any securities exchange or market on which the securities
may be listed. |
Only underwriters named in the prospectus supplement
will be underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they
will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at
a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities
to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject
to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement,
other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship.
We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe
any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to
solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
We may provide agents and underwriters with
indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments
that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common
stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities,
but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity
of the trading markets for any securities.
Any underwriter may engage in over-allotment,
stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering
or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option
or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that are qualified market
makers on The NASDAQ Capital Market may engage in passive market making transactions in the common stock on The NASDAQ Capital
Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before
the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess
of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid,
however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if
commenced, may be discontinued at any time.
In compliance with guidelines of the Financial
Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and the applicable
prospectus supplement.
LEGAL MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus, and any
supplement thereto, will be passed upon for us by Cooley LLP, San Francisco, California.
EXPERTS
Ernst &
Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10-K for the year ended December 31, 2014, and the effectiveness of our internal control over financial reporting
as of December 31, 2014, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere
in the registration statement. Our financial statements and our management’s assessment of the effectiveness of internal
control over financial reporting as of December 31, 2014 are incorporated by reference in reliance on Ernst & Young
LLP’s reports, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration
statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the
registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents,
the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits
to the reports or other documents incorporated by reference into this prospectus for a copy of such contract, agreement or other
document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and
current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet
at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the Public Reference Room. We maintain a website at www.thresholdpharm.com. Information found on, or accessible through, our
website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus
or part of any prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by
reference” information from other documents that we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus.
Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of
this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this
prospectus. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part
the information or documents listed below that we have filed with the SEC (Commission File No. 001-32979):
| · | our Annual Report on Form 10-K for the year ended December 31, 2014, which was filed on March 3, 2015; |
| · | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31,
2014 from our definitive proxy statement relating to our 2015 annual meeting of stockholders, which was filed on April 3,
2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, which was filed on April 30, 2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, which was filed on July 30, 2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, which was filed on November 2, 2015; |
| · | our Current Reports on Form 8-K which were filed on January 7, 2015, February 12, 2015 (with respect to Items 1.01 and 9.01
only), June 1, 2015 and June 10, 2015; |
| · | the description of our common stock set forth in our registration statement on Form 8-A,
filed with the SEC on January 28, 2005, as amended by Form 8-A/A, filed with the SEC on February 4, 2005, including any
further amendments thereto or reports filed for the purposes of updating this description; and |
| · | the description of our Series A Participating Preferred Stock contained in our registration
statement on Form 8-A filed with the SEC on August 9, 2006, including any amendment or report filed for the purpose of updating
such description. |
We also incorporate by reference any future
filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form
that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement
of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective amendment
that indicates the termination of the offering of the securities made by this prospectus and will become a part of this prospectus
from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any
information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference
to the extent that statements in the later filed document modify or replace such earlier statements.
We will
furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral
request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents that are specifically
incorporated by reference. You should direct any requests for documents to Threshold Pharmaceuticals, Inc., Attention: Investor
Relations Department, 170 Harbor Way, Suite 300, South San Francisco, CA 94080. Our phone number is (650) 474-8200
The information in this prospectus is not complete
and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it
is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
NOVEMBER 2, 2015
Prospectus
$50,000,000
Common Stock
We have
entered into a sales agreement with Cowen and Company, LLC, or Cowen, relating to shares of our common stock offered by this prospectus.
In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering
price of up to $50,000,000 from time to time through Cowen acting as our agent.
Our common stock is listed on The NASDAQ Capital
Market under the symbol “THLD.” On October 30, 2015, the last reported sale price of our common stock on The NASDAQ
Capital Market was $3.81 per share.
Sales of our common stock, if any, under
this prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated
under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on or through The NASDAQ
Capital Market, the existing trading market for our common stock, sales made to or through a market maker other than on an
exchange or otherwise, in negotiated transactions at market prices prevailing at the time of sale or at prices related to
such prevailing market prices or any other method permitted by law. Cowen will act as sales agent on a best efforts basis
using commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us,
consistent with its normal trading and sales practices, on mutually agreed terms between Cowen and us. There is no
arrangement for funds to be received in any escrow, trust or similar arrangement.
Cowen will be entitled to compensation under
the terms of the sales agreement at a commission rate of up to 3.0% of the gross sales price per share sold. In connection with
the sale of the common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation of Cowen will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification
and contribution to Cowen with respect to certain liabilities, including liabilities under the Securities Act.
Investing in our common stock involves
a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors”
on page 3 of this prospectus, and under similar headings in the other documents that are filed after the date hereof
and incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
Cowen and Company
The date of this prospectus
is , 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus relates to the offering of
our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together
with the information incorporated by reference as described under the heading “Incorporation of Certain Information by Reference”
in this prospectus. These documents contain important information that you should consider when making your investment decision.
This prospectus describes the specific terms
of the common stock we are offering and also adds to, and updates information contained in the documents incorporated by reference
into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand,
and the information contained in any document incorporated by reference into this prospectus that was filed with the Securities
and Exchange Commission, or SEC, before the date of this prospectus, on the other hand, you should rely on the information in this
prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for
example, a document incorporated by reference into this prospectus— the statement in the document having the later date modifies
or supersedes the earlier statement.
You should rely only on the information contained
in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize for use in connection
with this offering. We have not, and Cowen has not, authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on it. We are not, and Cowen is not, making an offer
to sell or soliciting an offer to buy our common stock in any jurisdiction in which an offer or solicitation is not authorized
or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make
an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference
into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate
only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have
changed since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any
free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment
decision. You should also read and consider the information in the documents to which we have referred you in the sections of this
prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
PROSPECTUS SUMMARY
This summary highlights
certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this
prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether
to invest in our common stock. For a more complete understanding of our company and this offering, we encourage you to read and
consider carefully the more detailed information in this prospectus, including the information incorporated by reference into this
prospectus, and the information included in any free writing prospectus that we may authorize for use in connection with this offering,
including the information referred to under the heading “Risk Factors” in this prospectus on page 3 and in
the documents incorporated by reference into this prospectus.
Threshold Pharmaceuticals,
Inc.
Overview
We are a biotechnology company using our expertise
in the tumor microenvironment to discover and develop therapeutic agents that selectively target tumor cells for the treatment
of patients living with cancer. Our lead investigational small molecule, evofosfamide (formerly referred to as TH-302), is being
evaluated in two pivotal Phase 3 clinical trials, one registrational Phase 2 clinical trial and multiple earlier-stage clinical
trials. We have a global license and co-development agreement for evofosfamide with Merck KGaA, Darmstadt, Germany, with an option
to co-commercialize in the United States.
Evofosfamide was discovered by our scientists
based on our hypoxia-targeted therapeutics prodrug technology. Hypoxia, or abnormally low oxygen concentration, is a common feature
of the tumor microenvironment in most solid tumors and in the bone marrow of patients with hematological malignancies (also known
as cancers of the bone marrow, for example, leukemias and multiple myeloma). Tumor hypoxia is associated with the development of
resistance to traditional anticancer treatments, including chemotherapy and radiotherapy, enhanced metastatic potential, and ultimately
treatment failure. We believe that by virtue of targeting tumor hypoxia, evofosfamide may have broad clinical applicability across
many types of solid tumors and some hematological malignancies. To explore this broad therapeutic potential of evofosfamide, we
are conducting multiple clinical trials to evaluate its safety and efficacy in solid tumors and hematological malignancies in combination
with currently marketed anticancer drugs, including traditional chemotherapeutic agents and antiangiogenic agents, and as monotherapy
for certain cancers.
We are also engaged in the development of
tarloxotinib bromide (proposed International Nonproprietary Name), or tarloxotinib (formerly referred to as TH-4000 or PR610), a
hypoxia-activated, irreversible epidermal growth factor receptor tyrosine kinase inhibitor licensed from the University of
Auckland. Tarloxotinib is designed to selectively release a potent, irreversible tyrosine kinase inhibitor in hypoxic
tumors.
We have devoted substantially all of our resources to
the research and development of our product candidates. We have not generated any revenue from the commercial sales of our product
candidates since our inception and do not expect to generate any revenue from the commercial sales of our product candidates in
the immediate term. We expect to continue to devote substantial resources to research and development in future periods as we complete
our current clinical trials, start additional clinical trials under our collaboration with Merck KGaA and on our own, to support
our discovery efforts and to potentially in-license or otherwise acquire and develop additional products or programs.
Company Information
We were incorporated in Delaware
on October 17, 2001. Our principal executive offices are located at 170 Harbor Way Suite 300, South San Francisco 94080. Our telephone
number is (650) 474-8200. Our website is located at www.thresholdpharm.com. Information found on, or accessible through, our website
is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus or part
of any prospectus supplement. Our website address is included in this document as an inactive textual reference only.
“Threshold,” “Threshold
Pharmaceuticals,” the “Company,” “we,” “us” and “our” refer to Threshold
Pharmaceuticals, Inc. Threshold Pharmaceuticals, Inc., our logo, and Metabolic Targeting are our trademarks. Other trademarks,
trade names and service marks included or incorporated by reference in this prospectus and any prospectus supplement are the property
of their respective owners.
The Offering
Common stock offered by us pursuant to this prospectus |
|
Shares of common stock having an aggregate offering price of up to $50,000,000. |
|
|
|
Manner of offering |
|
“At-the-market” offering that may be made from time to time through our agent, Cowen. See “Plan of Distribution” on page 11 of this prospectus. |
|
|
|
Use of proceeds |
|
We intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including research and development expenses, general and administrative expenses and manufacturing expenses. See “Use of Proceeds” on page 5 of this prospectus. |
|
|
|
NASDAQ Capital Market listing |
|
THLD |
|
|
|
Risk factors |
|
Investing in our common stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” on page 3 of this prospectus and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus, together with the other information included in or incorporated by reference into this prospectus, before deciding whether to invest in our common stock. |
RISK FACTORS
Investing in our common stock involves a
high degree of risk. Before deciding whether to invest in our common stock, you should consider carefully the risks and uncertainties
described below and discussed under the section entitled “Risk Factors” contained in our Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 2015, which are incorporated by reference into this prospectus in their entirety,
as updated or superseded by the risks and uncertainties described under similar headings in the other documents that are filed
after the date hereof and incorporated by reference into this prospectus, together with the other information in this prospectus,
the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with this offering.
The risks described in these documents are not the only ones we face, but those that we consider to be material. There may
be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse
effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical
trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business,
financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common
stock to decline, resulting in a loss of all or part of your investment. Please also carefully read the section below entitled
“Forward-Looking Statements.”
Additional Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds
from this offering, and may not use the proceeds effectively.
Because we have not designated the amount of
net proceeds from this offering to be used for any particular purpose, our management will have broad discretion as to the application
of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of the offering.
Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You may experience immediate and substantial dilution.
The offering price per share in this offering may exceed the net
tangible book value (deficit) per share of our common stock outstanding prior to this offering. Assuming that an aggregate of 12,755,102
shares of our common stock are sold at a price of $3.92 per share pursuant to this prospectus, which was the last reported sale
price of our common stock on The NASDAQ Capital Market on October 26, 2015, for aggregate gross proceeds of $50,000,000, after
deducting commissions and estimated aggregate offering expenses payable by us, you would experience immediate dilution of $3.71
per share, representing the difference between our as adjusted net tangible book value (deficit) per share as of September 30,
2015, after giving effect to this offering and the assumed offering price. The exercise of outstanding stock options and warrants
may result in further dilution of your investment. See the section entitled “Dilution” below for a more detailed illustration
of the dilution you would incur if you participate in this offering.
You may experience future dilution as a result of future equity
offerings.
In order to raise additional capital, we may
in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock
at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other
offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing
shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell
additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may
be higher or lower than the price per share paid by investors in this offering.
We do not intend to pay dividends in the
foreseeable future.
We have never paid cash dividends on our common
stock and currently do not plan to pay any cash dividends in the foreseeable future.
FORWARD-LOOKING STATEMENTS
This prospectus, the documents we have filed
with the SEC that are incorporated by reference and any free writing prospectus that we have authorized for use in connection with
this offering contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933,
as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These
statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties
and other factors that may cause our actual results, performance or achievements to be materially different from any future results,
performances or achievements expressed or implied by the forward-looking statements. Forward-looking statements may include, but
are not limited to, statements about:
| · | the clinical development of evofosfamide and tarloxotinib, and their expected uses and benefits; |
| · | anticipated clinical developmental events for evofosfamide and tarloxotinib, including the timing of the commencement, conduct
and completion of clinical trials for evofosfamide and tarloxotinib, and the timing of any efficacy and/or safety analyses from
ongoing trials; |
| · | anticipated milestone payments from Merck KGaA; |
| · | the success of any clinical trials that we and/or Merck KGaA commence; |
| · | our and Merck KGaA’s potential receipt of regulatory approvals, and our and Merck KGaA’s satisfaction of ongoing
regulatory review; |
| · | our and Merck KGaA’s ability to timely develop a viable commercial formulation of evofosfamide; |
| · | whether any product candidates that we and/or Merck KGaA are able to commercialize are safer or more effective than other marketed
products, treatments or therapies; |
| · | uncertainties associated with obtaining and enforcing patents and other intellectual property rights; |
| · | the costs and timing of obtaining drug supply for our pre-clinical and clinical activities; |
| · | anticipated expenses, including clinical trial, research and development and personnel costs; |
| · | the anticipated sufficiency of our cash resources and our need for additional capital; |
| · | our projected financial performance; |
| · | the clinical development of [18-F]-HX4 and its expected uses and benefits; and |
| · | the use of proceeds from this offering. |
In some cases, you can identify forward-looking
statements by terms such as “may,” “will,” “should,” “could,” “would,”
“expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,”
“predicts,” “potential” and similar expressions intended to identify forward-looking statements. These
statements reflect our current views with respect to future events, are based on assumptions and are subject to risks and uncertainties.
Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss in greater detail,
and incorporate by reference into this prospectus in their entirety, many of these risks under the headings “Risk Factors”
on page 3 of this prospectus and in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, which
is incorporated herein by reference, as may be updated or superseded by the risks and uncertainties described under similar headings
in the other documents that are filed after the date hereof and incorporated by reference into this prospectus. Also, these forward-looking
statements represent our estimates and assumptions only as of the date of the document containing the applicable statement.
You should read this prospectus, the documents
we have filed with the SEC that are incorporated by reference and any free writing prospectus that we have authorized for use in
connection with this offering completely and with the understanding that our actual future results may be materially different
from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
Unless required by law, we undertake no obligation
to update or revise any forward-looking statements to reflect new information or future events or developments. Thus, you should
not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking
statements.
USE OF PROCEEDS
Except as described in any free writing prospectus
that we may authorize to be provided to you, we currently intend to use the net proceeds from this offering, if any, for working
capital and general corporate purposes, including research and development expenses, general and administrative expenses and manufacturing
expenses.
The amounts and timing of our use of the net
proceeds from this offering will depend on a number of factors, such as the timing and progress
of our clinical trials and research and development efforts, the timing and progress of any partnering efforts, technological advances
and the competitive environment for our product candidates. As of the date of this
prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. Accordingly,
our management will have broad discretion in the timing and application of these proceeds. Pending application of the net proceeds
as described above, we intend to temporarily invest the proceeds in short-term, interest-bearing instruments.
DIVIDEND POLICY
To date, we have paid no cash dividends to our
stockholders, and we do not intend to pay cash dividends in the foreseeable future.
DILUTION
If you invest in this offering, your ownership
interest will be diluted to the extent of the difference between the public offering price per share and the as adjusted net tangible
book value (deficit) per share after giving effect to this offering. We calculate net tangible book value (deficit) per share by
dividing the net tangible book value (deficit), which is tangible assets less total liabilities, by the number of outstanding shares
of our common stock. Dilution represents the difference between the portion of the amount per share paid by purchasers of shares
in this offering and the as adjusted net tangible book value (deficit) per share of our common stock immediately after giving effect
to this offering. Our net tangible book value (deficit) as of September 30, 2015, was approximately $(30.9) million, or $(0.43)
per share.
After giving effect to the sale of our common
stock pursuant to this prospectus in the aggregate amount of $50,000,000 at an assumed offering price of $3.92 per share, the last
reported sale price of our common stock on The NASDAQ Capital Market on October 26, 2015, and after deducting commissions and estimated
aggregate offering expenses payable by us, our net tangible book value (deficit) as of September 30, 2015 would have been $17.4 million,
or $0.21 per share of common stock. This represents an immediate increase in the net tangible book value (deficit) of $0.64 per
share to our existing stockholders and an immediate dilution in net tangible book value (deficit) of $3.71 per share to new investors.
The following table illustrates this per share dilution:
Assumed offering price per share | |
| | | |
$ | 3.92 | |
Net tangible book value (deficit) per share as of September 30, 2015 | |
$ | (0.43 | ) | |
| | |
Increase per share attributable to new investors | |
$ | 0.64 | | |
| | |
As adjusted net tangible book value (deficit) per share as of September 30, 2015, after giving effect to this offering | |
| | | |
$ | 0.21 | |
Dilution per share to new investors purchasing shares in this offering | |
| | | |
$ | 3.71 | |
The table above assumes for illustrative purposes
that an aggregate of 12,755,102 shares of our common stock are sold pursuant to this prospectus at a price of $3.92 per share,
the last reported sale price of our common stock on The NASDAQ Capital Market on October 26, 2015, for aggregate gross proceeds
of $50,000,000. The shares are being sold from time to time at various prices pursuant to the sales agreement with Cowen. An increase
of $0.50 per share in the price at which the shares are sold from the assumed offering price of $3.92 per share shown in the table
above, assuming all of our common stock in the aggregate amount of $50,000,000 is sold during the term of the sales agreement with
Cowen at that price, would result in an adjusted net tangible book value (deficit) per share after the offering of $0.21 per
share and would increase the dilution in net tangible book value (deficit) per share to new investors in this offering to $4.21
per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $0.50 per share in
the price at which the shares are sold from the assumed offering price of $3.92 per share shown in the table above, assuming all
of our common stock in the aggregate amount of $50,000,000 is sold during the term of the sales agreement with Cowen at that price,
would decrease our adjusted net tangible book value (deficit) per share after the offering to $0.20 per share and would decrease
the dilution in net tangible book value (deficit) per share to new investors in this offering to $3.22 per share, after deducting
commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only.
The above discussion and table are
based on 71,431,059 shares of our common stock issued and outstanding as of September 30, 2015, and excludes the following, all
as of September 30, 2015:
| · | 10,287,465 shares of common stock issuable upon the exercise of outstanding stock options with a weighted-average exercise
price of $3.84 per share; |
| · | 3,836,165 shares of common stock issuable upon the exercise of outstanding warrants with an exercise price of $2.46 per share; |
| · | 8,300,000 shares of common stock issuable upon the exercise of outstanding warrants with an initial exercise price of
$10.86 per share; and |
| · | up to an aggregate of 2,363,048 shares of common stock
remaining available for future issuance under our 2014 Equity Incentive Plan and 2004 Employee Stock Purchase Plan, plus any annual
increases in the number of shares of common stock reserved for future issuance under our 2004 Employee Stock Purchase Plan pursuant
to the evergreen provision included therein, and any other shares that may become issuable under our 2014 Equity Incentive Plan
and our 2004 Employee Stock Purchase Plan pursuant to their respective terms. |
To the extent that options or warrants outstanding
as of September 30, 2015, have been or are exercised, or other shares are issued, investors purchasing shares in this offering
could 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 additional
capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further
dilution to our stockholders.
DESCRIPTION OF CAPITAL STOCK
As of
the date of this prospectus, our authorized capital stock consists of 150,000,000 shares of common stock, par value $0.001 per
share, and 2,000,000 shares of preferred stock, par value $0.001 per share. As of September 30, 2015, there were 71,431,059 shares
of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
The following summary description
of our capital stock is based on the provisions of our amended and restated certificate of incorporation, as amended, our amended
and restated bylaws, the applicable provisions of the Delaware General Corporation Law and the agreements described below. This
information may not be complete in all respects and is qualified entirely by reference to the provisions of our amended and restated
certificate of incorporation, our amended and restated bylaws, the Delaware General Corporation Law and such agreements. For information
on how to obtain copies of our amended and restated certificate of incorporation, our amended and restated bylaws and such agreements,
which are exhibits to the registration statement of which this prospectus forms a part, see “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference.”
Common Stock
Each
holder of common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, except matters
that relate only to one or more of the series of our preferred stock, and no holder has cumulative voting rights. Accordingly,
the holders of a majority of the shares of common stock entitled to vote in any election of directors can elect all of the directors
standing for election, if they so choose. Subject to preferences that may be applicable to any then outstanding preferred stock,
holders of common stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by the board
of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of common stock
will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all
of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any outstanding
shares of preferred stock. Holders of common stock have no preemptive or conversion rights or other subscription rights, and there
are no redemption or sinking fund provisions applicable to the common stock. When we issue shares of common stock under this prospectus,
the shares will be fully paid and nonassessable. The rights, preferences and privileges of the 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 which we may designate
in the future.
Preferred Stock
Pursuant
to our amended and restated certificate of incorporation, our board of directors is authorized, subject to any limitations prescribed
by law, without stockholder approval, to issue up to an aggregate of 2,000,000 shares of preferred stock, of which 200,000 shares
are authorized for issuance as Series A Participating Preferred Stock (see “Preferred Shares Rights Agreement; Series A Participating
Preferred Stock” below), none of which are outstanding. Our board of directors may issue preferred stock in one or more series
and has the authority to establish from time to time the number of shares to be included in each such series, to fix the rights,
preferences, privileges and restrictions granted to or imposed upon the preferred stock, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation preferences. The rights of the holders of common stock will be subject
to, and may be adversely affected by, the rights of holders of any preferred stock that may be issued in the future. Issuance of
preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could have
the effect of delaying, deferring or preventing a change in control of us and may adversely affect the market price of our common
stock and the voting and other rights of the holders of our common stock.
Preferred Shares Rights Agreement; Series
A Participating Preferred Stock
On August 8, 2006,
we entered into a Preferred Shares Rights Agreement, which we refer to as the Rights Agreement, with Mellon Investor Services LLC
pursuant to which each share of our common stock outstanding has attached to it one right, or a Right, to purchase Series A Participating
Preferred Stock. The Rights currently trade with, and are inseparable from, our common stock. The Rights are not currently exercisable
and will become exercisable only if (i) a person or group, which we refer to as an Acquiring Person, acquires beneficial ownership
of 15% or more of our outstanding common stock or (ii) a tender or exchange offer is commenced that would result in a person
or group becoming a beneficial owner of 15% or more of our outstanding common stock. Each Right allows its holder to purchase from
us one one-thousandth of a share of Series A Participating Preferred Stock at a purchase price of $25.00, subject to adjustment,
or the Purchase Price.
In the event that
an Acquiring Person becomes such, other than pursuant to a tender offer approved by our board of directors, proper provision shall
be made so that each holder of a Right that has not yet been exercised (other than Rights beneficially owned by the Acquiring Person,
which will thereafter be void) will thereafter have the right to receive upon exercise of a Right, in lieu of one one-thousandth
of a share of our Series A Participating Preferred Stock, a number of shares of our common stock having a then current value equal
to two times the Purchase Price. In the event that we do not have a sufficient number of shares of our common stock available,
or our board of directors decides that such action is necessary or appropriate and not contrary to the interests of Rights holders,
we may, among other things, instead substitute cash, assets or other securities for the shares of common stock into which the Rights
would have otherwise been exercisable. Similarly, in the event that, after the public announcement that an Acquiring Person has
become such, (i) we consolidate with or merge into another entity, (ii) another entity consolidates with or merges into
us or (iii) we sell or otherwise transfer 50% or more of our consolidated assets or earning power, proper provision must be
made so that each holder of a Right which has not theretofore been exercised (other than Rights beneficially owned by the Acquiring
Person, which will thereafter be void) will thereafter have the right to receive, upon exercise, a number of shares of common stock
of the acquiring company having a then current value equal to two times the Purchase Price (unless the transaction satisfies certain
conditions and is consummated with a person who acquired shares pursuant to a tender offer approved by our board, in which case
the Rights will expire).
Until a Right is exercised,
the holder thereof, as such, will have no rights as a stockholder of our company (other than any rights resulting from such holder’s
ownership of shares of our capital stock), including, without limitation, the right to vote or to receive dividends. The Rights
are protected by customary anti-dilution provisions as set forth in the Rights Agreement. At any time after an Acquiring Person
has become such and prior to the Acquiring Person beneficially owning 50% or more of our outstanding common stock, our board of
directors may exchange the Rights (other than Rights owned by the Acquiring Person or its affiliates), in whole or in part, for
shares of our common stock at an exchange ratio of one share of common stock per Right, subject to adjustment. At any time prior
to the close of business on August 8, 2016, we may redeem the Rights in whole, but not in part, at a price of $0.01 per Right.
Each share of Series
A Participating Preferred Stock will be entitled to an aggregate dividend of 1,000 times the dividend declared per share of our
common stock. In the event of liquidation, the holders of shares of our Series A Participating Preferred Stock will be entitled
to a preferential liquidation payment equal to accrued but unpaid dividends plus the greater of $1,000 per share or 1,000 times
the aggregate per share amount to be distributed to the holders of shares of our common stock. Each share of our Series A Participating
Preferred Stock will have 1,000 votes, voting together with the holders of shares of our common stock and any other capital stock
of our company having general voting rights, on all matters submitted to a vote of the stockholders, except as required by law
and subject to certain adjustments set forth in the Certificate of Designations of Rights, Preferences and Privileges of the Series
A Participating Preferred Stock. In the event of any merger, consolidation or other transaction in which shares of our common stock
are changed or exchanged, each share of Series A Participating Preferred Stock will be entitled to receive the greater of $1,000
per share or 1,000 times the amount received per share of our common stock. The Series A Participating Preferred Stock will rank
junior to all other series of our preferred stock as to the payment of dividends and the distribution of assets, unless the terms
of any such series shall provide otherwise. The shares of our Series A Participating Preferred Stock are not redeemable and have
no preemptive, subscription or conversion rights.
The Rights
expire on August 8, 2016, unless we extend the expiration date, redeem or exchange the Rights on an earlier date or the Rights
expire upon consummation of certain mergers, consolidations or sales of assets. Effective July 10, 2008, September 29,
2009 and March 11, 2011, we amended the terms of the Rights to ensure that they would not become exercisable solely by virtue
of our sales of securities completed on August 29, 2008, October 5, 2009 and March 11, 2011, respectively. The Rights
may have the effect of rendering more difficult or discouraging an acquisition of us that is deemed undesirable by our board of
directors. The Rights have certain anti-takeover effects and may cause substantial dilution to a person or group that attempts
to acquire us on terms or in a manner not approved by our board of directors, except pursuant to an offer conditioned upon the
negation, purchase or redemption of the Rights.
Effect of Certain Provisions of our Amended and Restated Certificate
of Incorporation and Bylaws and the Delaware Anti-Takeover Statute
Some provisions of
Delaware law and our amended and restated certificate of incorporation and bylaws contain provisions that could make the following
transactions more difficult:
| · | acquisition of us by means of a tender offer; |
| · | acquisition of us by means of a proxy contest or otherwise; or |
| · | removal of our incumbent officers and directors. |
These provisions,
summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids and to promote stability
in our management. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate
with our board of directors.
Amended and
Restated Certificate of Incorporation and Bylaws
| · | Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board
of directors to issue one or more series of preferred stock with voting or other rights or preferences that could impede the success
of any attempt to change control of us. |
| · | Stockholder Meetings. Our amended and restated certificate of incorporation and amended and restated bylaws provide
that a special meeting of stockholders may be called only by the chairman of our board of directors or by our president, or by
a resolution adopted by a majority of our board of directors. |
| · | Requirements for Advance Notification of Stockholder Nominations and Proposals. Our amended and restated bylaws establish
advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other
than nominations made by or at the direction of our board of directors or a committee of the board of directors. |
| · | Elimination of Stockholder Action by Written Consent. Our amended and restated certificate of incorporation eliminates
the right of stockholders to act by written consent without a meeting. |
| · | Amendment of Bylaws. Any amendment of our amended and restated bylaws by our stockholders requires approval by holders
of at least 66 2/3% of our then outstanding
shares entitled to vote generally in the election of directors, voting together as a single class. |
| · | Staggered Board of Directors. Our amended and restated certificate of incorporation provide for the division of
our board of directors into three classes, with staggered three-year terms. Under our amended and restated certificate of incorporation
and amended and restated bylaws, any vacancy on the board of directors, including a vacancy resulting from an enlargement of the
board of directors, may only be filled by vote of a majority of the directors then in office. The classification of the board of
directors and the limitations on the removal of directors and filling of vacancies would have the effect of making it more difficult
for a third party to acquire control of us, or of discouraging a third party from acquiring control of us. |
Delaware Law
We are subject to Section 203 of the General Corporation Law
of the State of Delaware, or DGCL, which regulates acquisitions of some Delaware corporations. In general, Section 203 prohibits,
with some exceptions, a publicly held Delaware corporation such as us from engaging in a “business combination” with
an “interested stockholder” for a period of three years following the time that the stockholder became an interested
stockholder, unless:
|
• |
|
prior to the time the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
|
• |
|
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
|
• |
|
at or subsequent to the time the stockholder became an interested stockholder, the business combination is approved by the board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
Section 203 of the DGCL generally defines a “business
combination” to include any of the following:
|
• |
|
any merger or consolidation involving the corporation and the interested stockholder; |
|
• |
|
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) involving the interested stockholder of 10% or more of the assets of the corporation (or its majority-owned subsidiary); |
|
• |
|
subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
|
• |
|
subject to exceptions, any transaction involving the corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; and |
|
• |
|
the receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of such corporation), of any loans, advances, guarantees, pledges or other financial benefits, other than certain benefits set forth in Section 203, provided by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation
and any entity or person that is an affiliate or associate of such entity or person.
Section 203 of the DGCL could delay, discourage or prohibit
transactions not approved in advance by our board of directors, such as takeover attempts that might otherwise involve the payment
to our stockholders of a premium for their shares over then current prices.
Certain Registration Obligations
In August 2008, we sold to certain investors
8,970,574 shares of our common stock and warrants to purchase up to 3,588,221 shares of our common stock in a private placement,
which we refer to as the August 2008 Financing. The securities purchase agreement for the August 2008 Financing provides that we
will file and thereafter maintain an effective registration statement covering the resale of the shares issued in, and the shares
underlying the warrants issued in, the August 2008 Financing, and further includes terms that may require us to pay liquidated
damages if we do not meet our registration obligations under the agreement. For example, the securities purchase agreement
provides that if we fail to maintain the effectiveness of such registration statement (subject to limited permissible suspension
periods), we will be required to pay the holders of such shares liquidated damages at the rate of one percent of the
purchase price of these shares and warrants for the first month, and two percent for each month thereafter, up to a total of ten
percent. The registration statement we filed covering the resale of the shares and shares underlying the warrants sold in this
transaction was declared effective by the SEC in October 2008. These registration obligations will terminate upon until the earlier
of the date that all registrable securities covered by such registration statement have been sold or can be sold publicly under
Rule 144 without volume restrictions.
In October 2009, we sold to certain investors
18,324,599 shares of our common stock and warrants to purchase up to 7,329,819 shares of our common stock in a private placement,
which we refer to as the October 2009 Financing. The securities purchase agreement for the October 2009 Financing provides that
we will file and thereafter maintain an effective registration statement covering the resale of the shares issued in, and the shares
underlying the warrants issued in, the October 2009 Financing. The registration statement we filed covering the resale of the shares
and shares underlying the warrants sold in this transaction was declared effective by the SEC in November 2009. These registration
obligations will terminate upon the date that all registrable securities covered by such registration statement have been sold
or can be sold without volume restriction under Rule 144.
Transfer Agent and Registrar
The transfer agent and registrar for
our common stock is Computershare, Trust Company, N.A. P.O. Box 30170, College Station,
TX 77842.
Listing on The NASDAQ Capital Market
Our common stock is listed on The NASDAQ Capital Market under the
symbol “THLD.”
PLAN OF DISTRIBUTION
We have entered into a sales
agreement with Cowen, under which we may issue and sell from time to time up to $50,000,000 of our common stock through Cowen as
our sales agent. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an “at
the market offering” as defined in Rule 415 under the Securities Act, including sales made directly on The Nasdaq Capital
Market or any other trading market for our common stock, or sales to or through a market maker other than on an exchange. If authorized
by us in writing, Cowen may also sell our shares of common stock in negotiated transactions or by any other method permitted by
law. Cowen may not purchase shares of our common stock as principal unless authorized by us in writing.
Each time we wish to issue
and sell common stock under the sales agreement, we will notify Cowen of the number of shares to be issued, the dates on which
such sales are anticipated to be made and any minimum price below which sales may not be made. Once we have so instructed Cowen,
unless it declines to accept the terms of this notice, Cowen 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. Cowen or we may suspend the
offering of our common stock being made through Cowen under the sales agreement upon proper notice to the other party. Cowen and
we each have the right, by giving written notice as specified in the sales agreement, to terminate the sales agreement in each
party’s sole discretion at any time.
The aggregate compensation
payable to Cowen as sales agent equals up to 3.0% of the gross proceeds we receive from the sales of our common stock pursuant
to the sales agreement. We have also agreed to reimburse Cowen up to $50,000 of Cowen’s actual expenses incurred by Cowen
in connection with this offering. We estimate that the total expenses of the offering payable by us, excluding commissions payable
to Cowen under the sales agreement, will be approximately $300,000.
The remaining sales proceeds,
after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory
organization in connection with the sales, will equal our net proceeds for the sale of such common stock.
Cowen will provide written
confirmation to us following the close of trading on The Nasdaq Capital Market for each day in which common stock is sold through
it as sales agent under the sales agreement. Each confirmation will include the number of shares of common stock sold through it
as sales agent on that day, the volume weighted average price of the shares sold, the compensation payable to Cowen and the net
proceeds to us.
We will report at least quarterly
the number of shares of common stock sold through Cowen under the sales agreement, the net proceeds to us and the compensation
paid by us to Cowen in connection with the sales of common stock.
Settlement for sales of common
stock will occur, unless the parties agree otherwise, on the third trading day following the date on which any sales were made
in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar
arrangement.
In connection with the sales
of our common stock on our behalf, Cowen will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation paid to Cowen will be deemed to be underwriting commissions or discounts. We have agreed in the sales
agreement to provide indemnification and contribution to Cowen against certain liabilities, including liabilities under the Securities
Act. As sales agent, Cowen will not engage in any transactions that stabilizes our common stock.
Cowen and/or its affiliates have provided,
and may in the future provide, various investment banking and other financial services for us for which services they have received
and, may in the future receive, customary fees.
LEGAL MATTERS
Cooley LLP, San Francisco,
California, has passed upon the validity of the common stock offered by this prospectus. LeClairRyan, A Professional Corporation,
New York, New York, is counsel for Cowen in connection with this offering.
EXPERTS
Ernst &
Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual
Report on Form 10-K for the year ended December 31, 2014, and the effectiveness of our internal control over financial reporting
as of December 31, 2014, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere
in the registration statement. Our financial statements and our management’s assessment of the effectiveness of internal
control over financial reporting as of December 31, 2014 are incorporated by reference in reliance on Ernst & Young
LLP’s reports, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of the registration
statement on Form S-3 we filed with the SEC under the Securities Act and do not contain all the information set forth or incorporated
by reference in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements
or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration
statement or the exhibits to the reports or other documents incorporated by reference in this prospectus for a copy of such contract,
agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file
annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room. We maintain a website at www.thresholdpharm.com. Information found on,
or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider
it part of this prospectus or part of any prospectus supplement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by
reference” information from other documents that we file with it, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus.
Information in this prospectus supersedes information incorporated by reference that we filed with the SEC prior to the date of
this prospectus, while information that we file later with the SEC will automatically update and supersede the information in this
prospectus. We incorporate by reference into this prospectus the information or documents listed below that we have filed with
the SEC (Commission File No. 001-32979):
| · | our Annual Report on Form 10-K for the year ended December 31, 2014, which was filed on March 3, 2015; |
| · | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31,
2014 from our definitive proxy statement relating to our 2015 annual meeting of stockholders, which was filed on April 3,
2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended March 31, 2015, which was filed on April 30, 2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, which was filed on July 30, 2015; |
| · | our Quarterly Report on Form 10-Q for the quarter ended September 30, 2015, which was filed on November 2, 2015; |
| · | our Current Reports on Form 8-K which were filed on January 7, 2015, February 12, 2015 (with respect to Items 1.01 and 9.01
only), June 1, 2015 and June 10, 2015; |
| · | the description of our common stock set forth in our registration statement on Form 8-A,
filed with the SEC on January 28, 2005, as amended by Form 8-A/A, filed with the SEC on February 4, 2005, including any
further amendments thereto or reports filed for the purposes of updating this description; and |
| · | the description of our Series A Participating Preferred Stock contained in our registration
statement on Form 8-A filed with the SEC on August 9, 2006, including any amendment or report filed for the purpose of updating
such description. |
We also incorporate by reference any future
filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form
that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration statement
of which this prospectus is a part and prior to effectiveness of such registration statement, until the termination of the offering
of the common stock covered by this prospectus and will become a part of this prospectus from the date that such documents are
filed with the SEC. Information in such future filings updates and supplements the information provided in this prospectus. Any
statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously
filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later
filed document modify or replace such earlier statements.
We
will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or
oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents that are specifically
incorporated by reference. You should direct any requests for documents to Threshold Pharmaceuticals, Inc., Attention: Investor
Relations Department, 170 Harbor Way, Suite 300, South San Francisco, CA 94080. Our phone number is (650) 474-8200
$50,000,000
Common Stock
Prospectus
Cowen
and Company
,
2015
PART II
INFORMATION NOT REQUIRED
IN THE PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution
The following table sets
forth an estimate of the fees and expenses, other than the underwriting discounts and commissions, payable by us in connection
with the issuance and distribution of the securities being registered. All the amounts shown are estimates, except for the SEC
registration fee.
| |
Amount | |
SEC registration fee | |
$ | 20,140 | |
FINRA filing fee (if applicable) | |
| 30,500 | |
Accounting fees and expenses | |
| 225,000 | |
Legal fees and expenses | |
| 250,000 | |
Transfer agent and registrar fees and expenses | |
| 5,000 | |
Trustee fees and expenses | |
| 15,000 | |
Printing and miscellaneous fees and expenses | |
| 10,000 | |
| |
| | |
Total | |
$ | 555,640 | |
Item 15. Indemnification of Directors
and Officers
We
are incorporated under the laws of the State of Delaware. Section 145 (“Section 145”) of the General Corporation
Law of the State of Delaware, as the same exists or may hereafter be amended (the “DGCL”), inter alia,
provides that a Delaware corporation may indemnify directors and officers as well as other employees and individuals against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason
of such person being or having been a director, officer, employee or agent to the Company. The DGCL provides that Section 145
is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise. Article VIII of our amended and restated bylaws provide for indemnification by us
of our directors and officers, as well as persons serving at our request as a director, officer, employee or other agent of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit
plan, to the fullest extent permitted by the DGCL.
Section 102(b)(7)
of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant
to Section 174 of the DGCL (providing for liability of directors for unlawful payments of dividends or unlawful stock repurchases
or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. Our amended and
restated certificate of incorporation provides for such limitation of liability to the fullest extent permitted by the DGCL.
As
permitted by Delaware law, we have entered into indemnification agreements with each of our directors and officers. These indemnification
agreements require us, among other things, to indemnify our directors and officers for certain expenses related to their service
to us, including attorney’s fees and other costs and expenses, judgments, fines, penalties and settlement amounts reasonably
incurred by or on behalf of such persons, subject to certain limitations. In addition,
our directors and officers are covered under directors’ and officers’ liability insurance policies maintained by us,
subject to the limits of the policies, insuring such persons against various liabilities.
The sales agreement by
and between the Registrant and Cowen, or Cowen, provides for indemnification by Cowen of the Registrant, its directors, its officers
who signed the registration statement and the Registrant’s controlling persons for some liabilities, including liabilities
arising under the Securities Act. In addition, the underwriting agreement that the Registrant may enter into (Exhibit 1.1)
may provide for indemnification by any underwriters of the Registrant, its directors, its officers who sign the registration statement
and the Registrant’s controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits
Exhibit
Number |
|
|
|
|
|
1.1* |
|
Form of Underwriting Agreement |
1.2 |
|
Sales Agreement, dated November 2, 2015, by and between the Registrant and Cowen and Company, LLC (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 2, 2015) |
4.1 |
|
Amended and Restated Certificate of Incorporation of the Registrant, as subsequently amended, including the Certificate of Designation of Series A Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on March 6, 2014) |
4.2 |
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-114376), filed on April 9, 2004) |
4.3 |
|
Specimen Certificate evidencing shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 6 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-114376), filed on January 28, 2005) |
4.4 |
|
Form of Rights Certificate (incorporated by reference to Exhibit 4.6 to the Registrant’s Current Report on Form 8-K filed on August 9, 2006) |
4.5 |
|
Preferred Shares Rights Agreement, dated as of August 8, 2006, by and between Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.5 to the Registrant’s Current Report on Form 8-K filed on August 9, 2006) |
4.6 |
|
Amendment to Rights Agreement, dated as of July 10, 2008, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on July 14, 2008) |
4.7 |
|
Second Amendment to Rights Agreement, dated as of September 29, 2009, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on September 30, 2009) |
4.8 |
|
Third Amendment to Rights Agreement, dated as of March 11, 2011, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on March 11, 2011) |
4.9 |
|
Form of Securities Purchase Agreement, dated July 9, 2008, by and among the Registrant and the investors party thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32979) filed on July 14, 2008) |
4.10 |
|
Form of Securities Purchase Agreement dated as of September 29, 2009 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-32979) filed on September 30, 2009) |
4.11* |
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock |
4.12 |
|
Form of Indenture, between the Registrant and one or more trustees to be named |
4.13* |
|
Form of Debt Securities |
4.14 |
|
Form of Common Stock Warrant Agreement and Warrant Certificate |
4.15 |
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate |
4.16 |
|
Form of Debt Securities Warrant Agreement and Warrant Certificate |
5.1 |
|
Opinion of Cooley LLP |
12.1 |
|
Statement of Computation of Ratio of Earnings to Fixed Charges and Ratio of Combined Fixed Charges and Preferred Stock Dividends |
23.1 |
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
23.2 |
|
Consent of Cooley LLP is contained in Exhibit 5.1 to this Registration Statement |
24.1 |
|
Power of Attorney is contained on the signature pages |
25.1 |
|
Statement of Eligibility of Trustee under the Indenture (to be filed separately under the electronic form type 305B2, if applicable) |
| * | To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference, if applicable. |
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 SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
(iii) to include any
material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the
purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for the
purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date.
(5) That, for the
purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for the purpose
of determining liability of the registrant under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That, for purposes
of determining any liability under the Securities Act of 1933:
(i) the information omitted
from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be a part of the registration statement as of the time it was declared effective; and
(ii) each post-effective
amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of
the Act.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of South San Francisco, State of California, on November 2, 2015.
|
THRESHOLD PHARMACEUTICALS, INC. |
|
|
|
|
By: |
/s/ Harold E. Selick |
|
|
Harold E. Selick, Ph.D. |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Harold E. Selick, Ph.D., Joel A. Fernandes and
Mark H. Hopkins, and each of them severally, as true and lawful attorneys-in-fact and agents, with full powers of substitution
and resubstitution, for them and in their name, place and stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this registration statement, and to sign any registration statement for the same
offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 under the Securities Act
of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, and generally to do all such things in their names and behalf in their capacities as officers and/or directors
to enable Threshold Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents
and purposes as he or she might or could do in person, ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Harold E. Selick |
|
Chief Executive Officer
|
|
November 2, 2015 |
Harold E. Selick, Ph.D. |
|
(principal executive officer) |
|
|
|
|
|
|
|
/s/ Joel A. Fernandes |
|
Vice President, Finance and Controller |
|
November 2, 2015 |
Joel A. Fernandes |
|
(principal financial and accounting officer) |
|
|
|
|
|
|
|
/s/ Jeffrey W. Bird |
|
Director |
|
November 2, 2015 |
Jeffrey W. Bird, M.D., Ph.D. |
|
|
|
|
|
|
|
|
|
/s/ Bruce C. Cozadd |
|
Director |
|
November 2, 2015 |
Bruce C. Cozadd |
|
|
|
|
|
|
|
|
|
/s/ David R. Hoffmann |
|
Director |
|
November 2, 2015 |
David R. Hoffmann |
|
|
|
|
|
|
|
|
|
/s/ Wilfred E. Jaeger |
|
Director |
|
November 2, 2015 |
Wilfred E. Jaeger, M.D. |
|
|
|
|
|
|
|
|
|
/s/ George G.C. Parker |
|
Director |
|
November 2, 2015 |
George G. C. Parker, Ph.D. |
|
|
|
|
|
|
|
|
|
/s/ David R. Parkinson |
|
Director |
|
November 2, 2015 |
David R. Parkinson, M.D. |
|
|
|
|
EXHIBIT INDEX
Exhibit
Number |
|
|
1.1* |
|
Form of Underwriting Agreement |
1.2 |
|
Sales Agreement, dated November 2, 2015, by and between the Registrant and Cowen and Company, LLC (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 2, 2015) |
4.1 |
|
Amended and Restated Certificate of Incorporation of the Registrant, as subsequently amended, including the Certificate of Designation of Series A Participating Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on March 6, 2014) |
4.2 |
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-114376), filed on April 9, 2004) |
4.3 |
|
Specimen Certificate evidencing shares of common stock (incorporated by reference to Exhibit 4.1 to Amendment No. 6 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-114376), filed on January 28, 2005) |
4.4 |
|
Form of Rights Certificate (incorporated by reference to Exhibit 4.6 to the Registrant’s Current Report on Form 8-K filed on August 9, 2006) |
4.5 |
|
Preferred Shares Rights Agreement, dated as of August 8, 2006, by and between Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.5 to the Registrant’s Current Report on Form 8-K filed on August 9, 2006) |
4.6 |
|
Amendment to Rights Agreement, dated as of July 10, 2008, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on July 14, 2008) |
4.7 |
|
Second Amendment to Rights Agreement, dated as of September 29, 2009, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on September 30, 2009) |
4.8 |
|
Third Amendment to Rights Agreement, dated as of March 11, 2011, between the Registrant and Mellon Investor Services LLC (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on March 11, 2011) |
4.9 |
|
Form of Securities Purchase Agreement, dated July 9, 2008, by and among the Registrant and the investors party thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-32979) filed on July 14, 2008) |
4.10 |
|
Form of Securities Purchase Agreement dated as of September 29, 2009 (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-32979) filed on September 30, 2009) |
4.11* |
|
Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock |
4.12 |
|
Form of Indenture, between the Registrant and one or more trustees to be named |
4.13* |
|
Form of Debt Securities |
4.14 |
|
Form of Common Stock Warrant Agreement and Warrant Certificate |
4.15 |
|
Form of Preferred Stock Warrant Agreement and Warrant Certificate |
4.16 |
|
Form of Debt Securities Warrant Agreement and Warrant Certificate |
5.1 |
|
Opinion of Cooley LLP |
12.1 |
|
Statement of Computation of Ratio of Earnings to Fixed Charges and Ratio of Combined Fixed Charges and Preferred Stock Dividends |
23.1 |
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm |
23.2 |
|
Consent of Cooley LLP is contained in Exhibit 5.1 to this Registration Statement |
24.1 |
|
Power of Attorney is contained on the signature pages |
25.1 |
|
Statement of Eligibility of Trustee under the Indenture (to be filed separately under the electronic form type 305B2, if applicable) |
| * | To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference, if applicable. |
Exhibit 4.12
THRESHOLD PHARMACEUTICALS, INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [·],
20__
Debt Securities
Table
Of Contents
|
|
Page |
|
|
|
article 1 |
DEFINITIONS |
1 |
|
|
|
Section 1.01 |
Definitions of Terms |
1 |
|
|
|
article 2 |
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
|
|
|
Section 2.01 |
Designation and Terms of Securities |
5 |
|
|
|
Section 2.02 |
Form of Securities and Trustee’s Certificate |
8 |
|
|
|
Section 2.03 |
Denominations: Provisions for Payment |
8 |
|
|
|
Section 2.04 |
Execution and Authentications |
10 |
|
|
|
Section 2.05 |
Registration of Transfer and Exchange |
10 |
|
|
|
Section 2.06 |
Temporary Securities |
12 |
|
|
|
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
12 |
|
|
|
Section 2.08 |
Cancellation |
13 |
|
|
|
Section 2.09 |
Benefits of Indenture |
13 |
|
|
|
Section 2.10 |
Authenticating Agent |
13 |
|
|
|
Section 2.11 |
Global Securities |
14 |
|
|
|
Section 2.12 |
CUSIP Numbers |
15 |
|
|
|
article 3 |
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
15 |
|
|
|
Section 3.01 |
Redemption |
15 |
|
|
|
Section 3.02 |
Notice of Redemption |
15 |
|
|
|
Section 3.03 |
Payment Upon Redemption |
17 |
|
|
|
Section 3.04 |
Sinking Fund |
17 |
|
|
|
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
17 |
|
|
|
Section 3.06 |
Redemption of Securities for Sinking Fund |
18 |
|
|
|
article 4 |
COVENANTS |
18 |
|
|
|
Section 4.01 |
Payment of Principal, Premium and Interest |
18 |
|
|
|
Section 4.02 |
Maintenance of Office or Agency |
18 |
|
|
|
Section 4.03 |
Paying Agents |
19 |
|
|
|
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
20 |
Table
Of Contents
(continued)
|
|
Page |
|
|
|
article 5 |
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
20 |
|
|
|
Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
20 |
|
|
|
Section 5.02 |
Preservation Of Information; Communications With Securityholders |
20 |
|
|
|
Section 5.03 |
Reports by the Company |
21 |
|
|
|
Section 5.04 |
Reports by the Trustee |
21 |
|
|
|
article 6 |
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
22 |
|
|
|
Section 6.01 |
Events of Default |
22 |
|
|
|
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
24 |
|
|
|
Section 6.03 |
Application of Moneys Collected |
25 |
|
|
|
Section 6.04 |
Limitation on Suits |
25 |
|
|
|
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not Waiver |
26 |
|
|
|
Section 6.06 |
Control by Securityholders |
27 |
|
|
|
Section 6.07 |
Undertaking to Pay Costs |
27 |
|
|
|
article 7 |
CONCERNING THE TRUSTEE |
28 |
|
|
|
Section 7.01 |
Certain Duties and Responsibilities of Trustee |
28 |
|
|
|
Section 7.02 |
Certain Rights of Trustee |
29 |
|
|
|
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or Securities |
31 |
|
|
|
Section 7.04 |
May Hold Securities |
31 |
|
|
|
Section 7.05 |
Moneys Held in Trust |
31 |
|
|
|
Section 7.06 |
Compensation and Reimbursement |
32 |
|
|
|
Section 7.07 |
Reliance on Officer’s Certificate |
32 |
|
|
|
Section 7.08 |
Disqualification; Conflicting Interests |
32 |
|
|
|
Section 7.09 |
Corporate Trustee Required; Eligibility |
33 |
|
|
|
Section 7.10 |
Resignation and Removal; Appointment of Successor |
33 |
|
|
|
Section 7.11 |
Acceptance of Appointment By Successor |
34 |
|
|
|
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
36 |
|
|
|
Section 7.13 |
Preferential Collection of Claims Against the Company |
36 |
Table
Of Contents
(continued)
|
|
Page |
|
|
|
Section 7.14 |
Notice of Default |
36 |
|
|
|
article 8 |
CONCERNING THE SECURITYHOLDERS |
36 |
|
|
|
Section 8.01 |
Evidence of Action by Securityholders |
36 |
|
|
|
Section 8.02 |
Proof of Execution by Securityholders |
37 |
|
|
|
Section 8.03 |
Who May be Deemed Owners |
37 |
|
|
|
Section 8.04 |
Certain Securities Owned by Company Disregarded |
37 |
|
|
|
Section 8.05 |
Actions Binding on Future Securityholders |
38 |
|
|
|
article 9 |
SUPPLEMENTAL INDENTURES |
38 |
|
|
|
Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
38 |
|
|
|
Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
39 |
|
|
|
Section 9.03 |
Effect of Supplemental Indentures |
40 |
|
|
|
Section 9.04 |
Securities Affected by Supplemental Indentures |
40 |
|
|
|
Section 9.05 |
Execution of Supplemental Indentures |
40 |
|
|
|
article 10 |
SUCCESSOR ENTITY |
41 |
|
|
|
Section 10.01 |
Company May Consolidate, Etc |
41 |
|
|
|
Section 10.02 |
Successor Entity Substituted |
41 |
|
|
|
ARTICLE 11 |
SATISFACTION AND DISCHARGE |
42 |
|
|
|
Section 11.01 |
Satisfaction and Discharge of Indenture |
42 |
|
|
|
Section 11.02 |
Discharge of Obligations |
43 |
|
|
|
Section 11.03 |
Deposited Moneys to be Held in Trust |
43 |
|
|
|
Section 11.04 |
Payment of Moneys Held by Paying Agents |
43 |
|
|
|
Section 11.05 |
Repayment to Company |
43 |
|
|
|
article 12 |
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
43 |
|
|
|
Section 12.01 |
No Recourse |
43 |
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article 13 |
MISCELLANEOUS PROVISIONS |
44 |
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Section 13.01 |
Effect on Successors and Assigns |
44 |
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Section 13.02 |
Actions by Successor |
44 |
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Section 13.03 |
Surrender of Company Powers |
44 |
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Section 13.04 |
Notices |
45 |
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Section 13.05 |
Governing Law; Jury Trial Waiver |
45 |
Table
Of Contents
(continued)
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Page |
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Section 13.06 |
Treatment of Securities as Debt |
45 |
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Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
45 |
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Section 13.08 |
Payments on Business Days |
46 |
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Section 13.09 |
Conflict with Trust Indenture Act |
46 |
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Section 13.10 |
Counterparts |
46 |
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Section 13.11 |
Separability |
46 |
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Section 13.12 |
Compliance Certificates |
47 |
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Section 13.13 |
U.S.A. Patriot Act |
47 |
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Section 13.14 |
Force Majeure |
47 |
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Section 13.15 |
Table of Contents; Headings |
47 |
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Section 13.13 |
Patriot Act |
45 |
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Section 13.14 |
Force Majeure |
45 |
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Section 13.12 |
Table of Contents; Headings |
45 |
INDENTURE
Indenture,
dated as of [·], 20__, among Threshold Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), and [Trustee],
as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the holders of Securities:
article
1
DEFINITIONS
Section 1.01 Definitions
of Terms.
The terms defined in this
Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified
in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended
(except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of
the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed
by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors”
means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized committee of such Board.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions in the
Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
“Company”
means Threshold Pharmaceuticals, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and,
subject to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is located at
.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.
“Event of Default”
means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission
thereunder.
“Global Security”
means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the stated maturity of the Securities, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest
on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided,
however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities
established as contemplated by Section 2.01.
“Interest Payment
Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed
date on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer
or any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion of
Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of
or counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization, including a government or political subdivision or an agency or
instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case
who shall have direct responsibility for the administration of this Indenture assigned by the Trustee to administer its corporate
trust matters with respect to this Indenture (which, for the avoidance of doubt, includes without limitation any supplemental indenture
hereto).
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities Act” means
the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the
Person or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in
accordance with the terms of this Indenture.
“Security Register”
and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means,
with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii)
one or more Subsidiaries of such Person.
“Trustee”
means _________________________, and, subject to the provisions of Article Seven, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such
Person. The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with
respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A. Patriot
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
article
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01 Designation
and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any
subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another
security or the method by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
(12) the
date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are payable;
(13) the
denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14) any
and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15) whether
the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16) if
applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or
exchange, which may, without limitation, include the payment of cash as well as the delivery of securities;
(17) if
other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions
to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19) additions
to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders
to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions
to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions
to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23) the
currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether
interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms
and conditions upon which the election may be made;
(25) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any
other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any one
series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
If any of the terms of
the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable,
with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates
on which such interest may be payable and with different redemption dates.
Section 2.02 Form
of Securities and Trustee’s Certificate.
The Securities of any series
and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport
as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s
Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations:
Provisions for Payment.
The Securities shall be
issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof,
subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due upon
conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be
dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve
30-day months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest
Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03.
Any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less
than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor
to be mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security Register
(as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set forth
in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month
in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is
a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section 2.04 Execution
and Authentications.
The Securities shall be
signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the
facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact that at the
time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer of
the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be
valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall
be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder
is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written
order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
Upon the Company’s
delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture,
the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected
in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate stating that all conditions
precedent to the execution, authentication and delivery of such Securities are in conformity with the provisions of this Indenture.
The Trustee shall not be
required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
Section 2.05 Registration
of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for
other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (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.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of
less than the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case
may be. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of,
this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.06 Temporary
Securities.
Pending the preparation
of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the
form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be
executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not
be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series shall
be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated,
Destroyed, Lost or Stolen Securities.
In case any temporary or
definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security
of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee
may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
In case any Security that
has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security)
if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether
or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series
duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered
for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the
Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09 Benefits
of Indenture.
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the
holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities.
Section 2.10 Authenticating
Agent.
So long as any of the Securities
of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company
and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that
is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent
may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder
as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11 Global
Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian,
retained by the Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided
in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary
or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by
a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing
such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities
in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons
in whose names such Securities are so registered.
Section 2.12 CUSIP
Numbers.
The Company in issuing
the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the
“CUSIP” numbers.
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3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem
the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
Section 3.02 Notice
of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing,
first class postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail), a notice of such
redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders
at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption
shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption and the redemption
price at which Securities of that series are to be redeemed, and shall state that payment of the redemption price of such Securities
to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In case any Security is
to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal
to one thousand U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer, instruct the Trustee or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is
to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section.
Section 3.03 Payment
Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to 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).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the
Security so presented.
Section 3.04 Sinking
Fund.
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any
sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction
of Sinking Fund Payments with Securities.
The Company (i) may deliver
Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the
terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption
of Securities for Sinking Fund.
Not less than 45 days prior
to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee),
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate,
deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided
in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
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COVENANTS
Section 4.01 Payment
of Principal, Premium and Interest.
The Company will duly and
punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the
time and place and in the manner provided herein and established with respect to such Securities. Payments of principal on the
Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on
and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S.
dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no
later than 15 days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided
herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled
thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder
shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the
relevant payment date.
Section 4.02 Maintenance
of Office or Agency.
So long as any series of
the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such
other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented
for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given
or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed
by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices
and demands. The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying
Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company
or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
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5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list,
in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of
such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such
other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports
by the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any correspondence filed with the Commission or any materials for which the Company has sought and received confidential
treatment by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have
been filed with the Trustee for purposes hereof without any further action required by the Company. For the avoidance of doubt,
a failure by the Company to file annual reports, information and other reports with the SEC within the time period prescribed thereof
by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine
any such reports, information or documents delivered to the Trustee or filed with the SEC via EDGAR to ensure compliance with the
provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained therein.
The Trustee shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings with
the SEC on EDGAR (or any successor system) has occurred.
Section 5.04 Reports
by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief
report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that
such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that
series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have
become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities
of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on (and premium,
if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission and
annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the
same shall have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments to
the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event of
Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof
or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys Collected.
Any moneys collected by
the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of
costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment
of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of
the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(iii) such holder or holders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective
due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent
of such holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder
of every Security of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities
of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall
not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to
the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial
to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf of the holders
of all of the Securities of such series waive any past default in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment of the principal of,
or premium, if any, or interest on, any of the Securities of that series as and when the same shall become due by the terms of
such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such
waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee
and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this Indenture
agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security of such series, on or after the respective due dates expressed in such Security
or established pursuant to this Indenture.
article
7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture;
(ii) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of
Securities hereunder.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise provided
in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that
may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence
of an Event of Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect
to Securities of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire
as to the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security
or indemnity reasonably acceptable to the Trustee against such costs, expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances;
(i) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions,
subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the
Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative
of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions
(or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the Trustee with Officer’s Certificates, Company Orders and
any other matters or directions pursuant to this Indenture.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default relating to the
failure to pay the interest on, or the principal of, the Securities) until the Trustee shall have received written notification
in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus,
or any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities
or any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.04 May
Hold Securities.
The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s
agents and counsel.
(b) The
Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel)
incurred by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5),
the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith
are to constitute expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance
on Officer’s Certificate.
Except as otherwise provided
in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary
or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or
other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve
as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case,
the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of 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.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure
to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect
to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture,
and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor
trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor of the
Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
Section 7.14 Notice
of Default.
If any Event of Default
occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Event
of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that,
except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Securityholders.
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CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by
such holders of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for
the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities
of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his
or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require such
additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner
of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether
the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent
or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company or
any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority
or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security
issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation
in regard thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the Securities of that series.
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SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any supplemental
indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders
of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such
series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board
of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of the
Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not
be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an
Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution of the
supplemental indenture have been complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company shall (or
shall direct the Trustee to) transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders of all series affected thereby .as their names and addresses appear upon
the Security Register. Any failure of the Company to mail, or cause the mailing of, such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture.
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SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
Nothing contained in this
Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated with
the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors
as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor
or successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each
case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition (other
than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of the principal
of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according
to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then
in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into the
Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of
all or any part of the property of any other Person (whether or not affiliated with the Company).
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SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered
to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such
trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due
or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon
cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that
shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company
shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge
of Obligations.
If at any time all such
Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable
as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become
due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect
to such series shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06,
7.10 and 11.05 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06
and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment
as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with the
satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions
of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from
all further liability with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or
premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then
held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company
or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that
no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
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MISCELLANEOUS PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants, stipulations,
promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
Section 13.02 Actions
by Successor.
Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company
shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly
provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made
or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders of Securities
or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first class
mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: Threshold
Pharmaceuticals, Inc., 170 Harbor Way, South San Francisco, California 94080, Attention: Joel Fernandes. Any notice, election,
request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office
of the Trustee.
Section 13.05 Governing
Law; Jury Trial Waiver.
This Indenture and each
Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
EACH PARTY HERETO, AND
EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE.
Section 13.06 Treatment
of Securities as Debt.
It is intended that the
Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with
and, if requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need
be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 or Section 314(a)(1) of the
Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided pursuant
to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the
date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and
the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for
all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
Section 13.11 Separability.
In case any one or more
of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an
officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year.
Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance under
this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe
any such Event of Default and its status.
Section 13.13 U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help
fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section 13.14 Force
Majeure.
In no event shall the Trustee,
the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure or delay
in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control,
including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under
this Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
Section 13.15 Table
of Contents; Headings.
The table of contents and
headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
In
Witness Whereof, the parties hereto have caused this Indenture to be duly executed all as of the day and year first
above written.
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Threshold Pharmaceuticals, Inc. |
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By: |
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Name: |
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Title: |
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[Trustee], as Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE TABLE
(1)
Section of Trust Indenture Act of 1939, as Amended |
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Section of Indenture |
310(a) |
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7.09 |
310(b) |
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7.08 |
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7.10 |
310(c) |
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Inapplicable |
311(a) |
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7.13 |
311(b) |
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7.13 |
311(c) |
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Inapplicable |
312(a) |
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5.01 |
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5.02(a) |
312(b) |
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5.02(c) |
312(c) |
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5.02(c) |
313(a) |
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5.04(a) |
313(b) |
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5.04(b) |
313(c) |
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5.04(a) |
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5.04(b) |
313(d) |
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5.04(c) |
314(a) |
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5.03 |
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13.12 |
314(b) |
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Inapplicable |
314(c) |
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13.07(a) |
314(d) |
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Inapplicable |
314(e) |
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13.07(b) |
314(f) |
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Inapplicable |
315(a) |
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7.01(a) |
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7.01(b) |
315(b) |
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7.14 |
315(c) |
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7.01 |
315(d) |
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7.01(b) |
315(e) |
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6.07 |
316(a) |
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6.06 |
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8.04 |
316(b) |
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6.04 |
316(c) |
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8.01 |
317(a) |
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6.02 |
317(b) |
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4.03 |
318(a) |
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13.09 |
(1) This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of
its terms or provisions.
Exhibit 4.14
Threshold Pharmaceuticals,
Inc.
and
_____________, As Warrant
Agent
Form Of Common Stock
Warrant Agreement
Dated As Of __________
THRESHOLD PHARMACEUTICALS,
INC.
FORM OF COMMON STOCK
WARRANT AGREEMENT
This
Common Stock Warrant Agreement (this “Agreement”), dated as of [●], between Threshold
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities
being offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the
“Warrants” or, individually, a “Warrant”) representing the right to purchase
Common Stock of the Company, par value $0.001 per share (the “Warrant Securities”), such warrant certificates
and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant Certificates”;
and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this
Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions
on which they may be issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree
as follows:
Article
1
ISSUANCE OF WARRANTS
AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
Of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the
Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security.
[If Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each
Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities
issued.]
1.2 Execution
And Delivery Of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may
have such letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants
may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present
or future chief executive officers, presidents, senior vice presidents, vice presidents, chief financial officers, chief legal
officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate
shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer
of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
Of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall
deliver such Warrant Certificates to or upon the order of the Company.
Article
2
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable
Warrant Certificate at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain
events, as hereinafter provided. Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant
Price.”
2.2 Duration
Of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the “Expiration Date”). Each Warrant not exercised at or before [●] p.m., [City]
time, on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such Warrant
under this Agreement shall cease.
2.3 Exercise
Of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant
is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within
five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment
in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid,
be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant
Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise
of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall
be effective to constitute the person so designated to be named as the holder of record of such Warrant Securities on such date,
but shall be effective to constitute such person as the holder of record of such Warrant Securities for all purposes at the opening
of business on the next succeeding day on which the transfer books for the Warrant Securities purchasable upon the exercise of
such Warrants shall be opened, and the certificates for the Warrant Securities in respect of which such Warrants are then exercised
shall be issuable as of the date on such next succeeding day on which the transfer books shall next be opened, and until such date
the Company shall be under no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the Company maintained with it and shall advise the Company
by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered
in such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver,
a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been
established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise
of the Warrants.
Article
3
OTHER PROVISIONS RELATING
TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights As Warrant Securityholder Conferred By Warrants Or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation,
the right to receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights,
except to the extent expressly set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated Or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance
of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section
3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled
to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
Of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to
exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant
Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares, the Warrant
Price in effect immediately prior to such subdivision shall be proportionately reduced and the number of Warrant Securities purchasable
under the Warrants shall be proportionately increased. Conversely, in case the outstanding shares of Common Stock of the Company
shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately
increased and the number of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If
at any time or from time to time the holders of Common Stock (or any shares of stock or other securities at the time receivable
upon the exercise of the Warrants) shall have received or become entitled to receive, without payment therefore,
(i) Common
Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable
for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend
or other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) Common
Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments in respect
of which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall,
upon the exercise of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon,
and without payment of any additional consideration therefore, the amount of stock and other securities and property (including
cash and indebtedness or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise
had he been the holder of record of such Warrant Securities as of the date on which holders of Common Stock received or became
entitled to receive such shares or all other additional stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change in the Common Stock of the Company (other than as a result
of a subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share exchange,
merger or similar transaction of the Company with or into another person or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving corporation and which does not result in any change in the Common
Stock other than the issuance of additional shares of Common Stock) or (iii) the sale, exchange, lease, transfer or other disposition
of all or substantially all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the expiration of the Warrants to purchase, at a total price equal to that
payable upon the exercise of the Warrants, the kind and amount of shares of stock and other securities and property receivable
in connection with such Reorganization Event by a holder of the same number of Warrant Securities as were purchasable by the holders
of the Warrants immediately prior to such Reorganization Event. In any such case appropriate provisions shall be made with respect
to the rights and interests of the holders of the Warrants so that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable upon exercise the Warrants, and appropriate adjustments shall
be made to the Warrant Price payable hereunder provided the aggregate purchase price shall remain the same. In the case of any
transaction described in clauses (ii) and (iii) above, the Company shall thereupon be relieved of any further obligation hereunder
or under the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound
up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the Company,
and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant Securities upon exercise
of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as
the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology and
form (but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive
a written opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this
Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted
by such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of shares of
Common Stock, or securities convertible into or exchangeable for shares of Common Stock, or securities carrying the right to purchase
any of the foregoing or for any other reason whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on
the basis of the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional
Warrant Security which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales)
per Warrant Security, in either case as reported on the principal registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day that next precedes the day of exercise or, if the Warrant Securities
are not then listed or admitted to trading on any registered national securities exchange, the average of the closing high bid
and low asked prices as reported on the OTC Bulletin Board Service (the “OTC Bulletin Board”) operated
by the Financial Industry Regulatory Authority, Inc. (“FINRA” ) or, if not available on the OTC Bulletin
Board, then the average of the closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer
quotation system on such date, or if on any such date the Warrant Securities are not listed or admitted to trading on a registered
national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium
or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid and asked prices as furnished
by any FINRA member firm selected from time to time by the Company for that purpose at the close of business on the business day
that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment
is based.
3.5 Notice
To Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the Common Stock in connection with the dissolution, liquidation
or winding up of the Company, or (d) reduce the then current Warrant Price pursuant to Section 3.4(d), then the Company shall mail
to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant Agent, at least ten days
prior to the applicable date hereinafter specified, a notice stating (x) the record date for such dividend or distribution, or,
if a record is not to be taken, the date as of which the holders of record of Common Stock that will be entitled to such dividend
or distribution are to be determined, (y) the date on which such Reorganization Event, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities or other property deliverable upon such Reorganization Event, dissolution,
liquidation or winding up, or (z) the first date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d).
No failure to mail such notice nor any defect therein or in the mailing thereof shall affect any such transaction or any adjustment
in the Warrant Price required by Section 3.4.
3.6 [If
The Warrants Are Subject To Acceleration By The Company, Insert — Acceleration Of Warrants By The Company.
(a) At
any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them
to expire at the close of business on the day next preceding a specified date (the “Acceleration Date”),
if the Market Price (as hereinafter defined) of the Common Stock equals or exceeds [●] percent ([●]%) of the then effective
Warrant Price on any twenty Trading Days (as hereinafter defined) within a period of thirty consecutive Trading Days ending no
more than five Trading Days prior to the date on which the Company gives notice to the Warrant Agent of its election to accelerate
the Warrants.
(b) “Market
Price” for each Trading Day shall be, if the Common Stock is listed or admitted to trading on any registered national
securities exchange, the last reported sale price, regular way (or, if no such price is reported, the average of the reported closing
bid and asked prices, regular way) of Common Stock, in either case as reported on the principal registered national securities
exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any registered
national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC Bulletin Board operated
by FINRA, or if not available on the OTC Bulletin Board, then the average of the closing high bid and low asked prices as reported
on any other U.S. quotation medium or inter-dealer quotation system, or if on any such date the shares of Common Stock are not
listed or admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are
not quoted on any other U.S. quotation medium or inter-dealer quotation system, the average of the closing bid and asked prices
as furnished by any FINRA member firm selected from time to time by the Company for that purpose. “Trading Day”
shall be each Monday through Friday, other than any day on which securities are not traded in the system or on the exchange that
is the principal market for the Common Stock, as determined by the Board of Directors of the Company.
(c) In
the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by
lot, pro rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(d) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder
of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant
Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall
be given no more than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants
pursuant to this Section 3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(e) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date.
The Warrant Price shall be payable as provided in Section 2.]
Article
4
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
4.1 Exchange
And Transfer Of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number
of Warrant Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges
and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office for exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange
or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate evidencing
a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant Securities and a fraction
of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant Certificates shall
be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this Agreement
as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
Of Holders Of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of
a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
Of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant
Agent shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory
to the Company.
Article
5
CONCERNING THE WARRANT
AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions
Of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from
time to time of the Warrant Certificates shall be subject:
(a) Compensation
And Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent
For The Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any
of the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the Company is a party.
(f) No
Liability For Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on
any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability For Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any
of the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility For Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely
by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case
of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise
or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation,
Removal And Appointment Of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted,
or under any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency
or similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with
like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled
to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Article
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making
any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided that such action shall not materially adversely affect the interests of the holders of the
Warrant Certificates.
6.2 Notices
And Demands To The Company And Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Threshold
Pharmaceuticals, Inc., 170 Harbor Way, South San Francisco, California 94080, Attention: [●] (or such other address as shall
be specified in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
Of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of
the Securities Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise,
a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy
of such Prospectus.
6.6 Obtaining
Of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States
Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer,
and delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants
or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under Warrant Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
Of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed all as of the day and year first
above written.
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THRESHOLD PHARMACEUTICALS, INC., as Company |
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COUNTERSIGNED |
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[Signature
Page to Threshold Pharmaceuticals, Inc. Form of Common Stock Warrant Agreement]
Exhibit
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Warrants are not immediately exercisable.] |
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[Prior to [●] Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED
BY THE WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [●] P.M.,
[City] time, ON [●].
THRESHOLD PHARMACEUTICALS,
INC.
WARRANT CERTIFICATE
REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE
$0.001 PER SHARE
This certifies that
or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such owner to purchase,
at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time, on [●] shares
of Common Stock, par value $0.001 per share (the “Warrant Securities”), of Threshold Pharmaceuticals,
Inc. (the “Company”) on the following basis: during the period from [●], through and including
[●], the exercise price per Warrant Security will be $[●], subject to adjustment as provided in the Warrant Agreement
(as hereinafter defined) (the “Warrant Price”). The Holder may exercise the Warrants evidenced hereby
by providing certain information set forth on the back hereof and by paying in full, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price for each Warrant Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate
trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”), which
is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced
by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant
Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth
in the Warrant Agreement) or to exercise any voting rights.
Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
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THRESHOLD PHARMACEUTICALS, INC., as Company |
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COUNTERSIGNED
[●], as Warrant Agent |
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[REVERSE OF WARRANT
CERTIFICATE]
(Instructions for Exercise
of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of the payment.
(To be executed upon exercise
of Warrants)
The undersigned hereby
irrevocably elects to exercise [●] Warrants, evidenced by this Warrant Certificate, to purchase [●] shares of the Common
Stock, par value $0.001 per share (the “Warrant Securities”), of Threshold Pharmaceuticals, Inc. and
represents that he has tendered payment for such Warrant Securities, in lawful money of the United States of America, [in cash
or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], to the order of Threshold Pharmaceuticals, Inc., c/o [insert name and address of Warrant Agent], in the amount of $[●]
in accordance with the terms hereof. The undersigned requests that said Warrant Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing
the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
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Signature Guaranteed: |
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(Signature must conform
in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a
FINRA member firm).
This Warrant may be exercised
at the following addresses:
By hand at:
By mail at:
[Instructions as to form
and delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities
remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form of assignment to
be executed if Warrant Holder desires to transfer Warrant]
For
Value Received, [●] hereby sells, assigns and transfers unto:
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the right represented
by the within Warrant to purchase shares of [Title of Warrant Securities] of Threshold Pharmaceuticals, Inc. to which the within
Warrant relates and appoints attorney [●] to transfer such right on the books of the Warrant Agent with full power of substitution
in the premises.
(Signature must conform
in all respects to name of holder as specified on the face of the Warrant)
Signature Guaranteed
Exhibit 4.15
Threshold Pharmaceuticals,
Inc.
and
_____________, As Warrant
Agent
Form Of Preferred Stock
Warrant Agreement
Dated As Of __________
EXHIBIT 4.9
THRESHOLD
PHARMACEUTICALS, INC.
FORM OF
PREFERRED STOCK WARRANT AGREEMENT
This
Preferred Stock Warrant Agreement (this “Agreement”), dated as of [●], between Threshold
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — [title of such other securities
being offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the
“Warrants” or, individually, a “Warrant”) representing the right to purchase
[title of Preferred Stock purchasable through exercise of Warrants] (the “Warrant Securities”), such
warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant
Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree
as follows:
Article
1
ISSUANCE OF WARRANTS
AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
Of Warrants. [If Warrants alone —Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants —Warrant Certificates will be issued in connection with the issuance of the
Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security.
[If Other Securities and Warrants —Warrant Certificates will be issued with the Other Securities and each Warrant
Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
And Delivery Of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may
have such letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants
may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its present
or future chief executive officers, presidents, senior vice presidents, vice presidents, chief financial officers, chief legal
officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate
shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer
of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
Of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates and shall
deliver such Warrant Certificates to or upon the order of the Company.
Article
2
WARRANT PRICE, DURATION
AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable
Warrant Certificate at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain
events, as hereinafter provided. Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant
Price.”
2.2 Duration
Of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the “Expiration Date”). Each Warrant not exercised at or before [●] p.m., [City]
time, on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such Warrant
under this Agreement shall cease.
2.3 Exercise
Of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant
is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within
five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment
in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid,
be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant
Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise
of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall
be effective to constitute the person so designated to be named as the holder of record of such Warrant Securities on such date,
but shall be effective to constitute such person as the holder of record of such Warrant Securities for all purposes at the opening
of business on the next succeeding day on which the transfer books for the Warrant Securities purchasable upon the exercise of
such Warrants shall be opened, and the certificates for the Warrant Securities in respect of which such Warrants are then exercised
shall be issuable as of the date on such next succeeding day on which the transfer books shall next be opened, and until such date
the Company shall be under no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the Company maintained with it and shall advise the Company
by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such holder is entitled, in fully registered form, registered
in such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver,
a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been
established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise
of the Warrants.
Article
3
OTHER PROVISIONS RELATING
TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights As Warrant Securityholder Conferred By Warrants Or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation,
the right to receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights,
except to the extent expressly set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated Or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance
of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section
3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled
to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
Of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s right to
exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s Warrant
Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of [title of Preferred Stock purchasable through exercise of
Warrants] into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately
reduced and the number of Warrant Securities purchasable under the Warrants shall be proportionately increased. Conversely, in
case the outstanding shares of [title of Preferred Stock purchasable through exercise of Warrants] of the Company shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased
and the number of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If
at any time or from time to time the holders of [title of Preferred Stock purchasable through exercise of Warrants] (or any shares
of stock or other securities at the time receivable upon the exercise of the Warrants) shall have received or become entitled to
receive, without payment therefore,
(i) [title
of Preferred Stock purchasable through exercise of Warrants] or any shares of stock or other securities which are at any time directly
or indirectly convertible into or exchangeable for [title of Preferred Stock purchasable through exercise of Warrants], or any
rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii) any
cash paid or payable otherwise than in accordance with the terms of [title of Preferred Stock purchasable through exercise of Warrants]
or otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) [title
of Preferred Stock purchasable through exercise of Warrants] or additional stock or other securities or property (including cash)
by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of [title
of Preferred Stock purchasable through exercise of Warrants] issued as a stock split or adjustments in respect of which shall be
covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall, upon the exercise
of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without payment
of any additional consideration therefore, the amount of stock and other securities and property (including cash and indebtedness
or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise had he been the
holder of record of such Warrant Securities as of the date on which holders of [title of Preferred Stock purchasable through exercise
of Warrants] received or became entitled to receive such shares or all other additional stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change in the [title of Preferred Stock purchasable through the exercise
of the Warrants] of the Company (other than as a result of a subdivision, combination or stock dividend provided for in Section
3.4(a) or Section 3.4(b) above), (ii) share exchange, merger or similar transaction of the Company with or into another person
or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation
and which does not result in any change in the [title of Preferred Stock purchasable through the exercise of the Warrants] other
than the issuance of additional shares of [title of Preferred Stock purchasable through the exercise of the Warrants]) or (iii)
the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and assets of the Company
as an entirety (in any such case, a “Reorganization Event”), then, as a condition of such Reorganization
Event, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its successor shall
be delivered to the holders of the Warrants, so that the holders of the Warrants shall have the right at any time prior to the
expiration of the Warrants to purchase, at a total price equal to that payable upon the exercise of the Warrants, the kind and
amount of shares of stock and other securities and property receivable in connection with such Reorganization Event by a holder
of the same number of shares of [title of Preferred Stock purchasable through the exercise of the Warrants] as were purchasable
by the holders of the Warrants immediately prior to such Reorganization Event. In any such case appropriate provisions shall be
made with respect to the rights and interests of the holders of the Warrants so that the provisions hereof shall thereafter be
applicable with respect to any shares of stock or other securities and property deliverable upon exercise the Warrants, and appropriate
adjustments shall be made to the Warrant Price payable hereunder provided the aggregate purchase price shall remain the same. In
the case of any transaction described in clauses (ii) and (iii) above, the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the
Company, and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant Securities
upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this
Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such
Warrants had been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology
and form (but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may
receive a written opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions
of this Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted
by such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of any securities
of the Company or for any other reason whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on
the basis of the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional
Warrant Security which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales)
per Warrant Security, in either case as reported on the principal registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day that next precedes the day of exercise or, if the Warrant Securities
are not then listed or admitted to trading on any registered national securities exchange, the average of the closing high bid
and low asked prices as reported on the OTC Bulletin Board Service (the “OTC Bulletin Board”) operated
by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or, if not available on the OTC Bulletin
Board, then the average of the closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer
quotation system on such date, or if on any such date the Warrant Securities are not listed or admitted to trading on a registered
national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium
or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid and asked prices as furnished
by any FINRA member firm selected from time to time by the Company for that purpose at the close of business on the business day
that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment
is based.
3.5 Notice
To Warrantholders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b) effect
any Reorganization Event, (c) make any distribution on or in respect of the [title of Preferred Stock purchasable through the exercise
of the Warrants] in connection with the dissolution, liquidation or winding up of the Company, or (d) reduce the then current Warrant
Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address as it shall
appear on the books of the Warrant Agent, at least ten days prior to the applicable date hereinafter specified, a notice stating
(x) the record date for such dividend or distribution, or, if a record is not to be taken, the date as of which the holders of
record of [title of Preferred Stock purchasable through the exercise of Warrants] that will be entitled to such dividend or distribution
are to be determined, (y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of [title of Preferred Stock purchasable through the exercise of
the Warrants] of record shall be entitled to exchange their shares of [title of Preferred Stock purchasable through the exercise
of the Warrants] for securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding
up, or (z) the first date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail
such notice nor any defect therein or in the mailing thereof shall affect any such transaction or any adjustment in the Warrant
Price required by Section 3.4.
3.6 [If
The Warrants Are Subject To Acceleration By The Company, Insert—Acceleration Of Warrants By The Company.]
(a) At
any time on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them
to expire at the close of business on the day next preceding a specified date (the “Acceleration Date”),
if the Market Price (as hereinafter defined) of the [title of Preferred Stock purchasable through the exercise of the Warrants]
equals or exceeds [●] percent ([●]%) of the then effective Warrant Price on any twenty Trading Days (as hereinafter
defined) within a period of thirty consecutive Trading Days ending no more than five Trading Days prior to the date on which the
Company gives notice to the Warrant Agent of its election to accelerate the Warrants.
(b) “Market
Price” for each Trading Day shall be, if the [title of Preferred Stock purchasable through the exercise of the Warrants]
is listed or admitted to trading on any registered national securities exchange, the last reported sale price, regular way (or,
if no such price is reported, the average of the reported closing bid and asked prices, regular way) of [title of Preferred Stock
purchasable through the exercise of the Warrants], in either case as reported on the principal registered national securities exchange
on which the [title of Preferred Stock purchasable through the exercise of the Warrants] is listed or admitted to trading or, if
not listed or admitted to trading on any registered national securities exchange, the average of the closing high bid and low asked
prices as reported on the OTC Bulletin Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average
of the closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system, or
if on any such date the shares of [title of Preferred Stock purchasable through the exercise of the Warrants] are not listed or
admitted to trading on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted
on any other U.S. quotation medium or inter-dealer quotation system, the average of the closing bid and asked prices as furnished
by any FINRA member firm selected from time to time by the Company for that purpose. “Trading Day” shall
be each Monday through Friday, other than any day on which securities are not traded in the system or on the exchange that is the
principal market for the [title of Preferred Stock purchasable through the exercise of the Warrants], as determined by the Board
of Directors of the Company.
(c) In
the event of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by
lot, pro rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(d) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder
of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant
Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall
be given no more than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants
pursuant to this Section 3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(e) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date.
The Warrant Price shall be payable as provided in Section 2.]
Article
4
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
4.1 Exchange
And Transfer Of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number
of Warrant Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges
and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office for exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange
or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate evidencing
a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant Securities and a fraction
of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant Certificates shall
be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this Agreement
as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
Of Holders Of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of
a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
Of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant
Agent shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory
to the Company.
Article
5
CONCERNING THE WARRANT
AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions
Of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from
time to time of the Warrant Certificates shall be subject:
(a) Compensation
And Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent
For The Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any
of the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the Company is a party.
(f) No
Liability For Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on
any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability For Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any
of the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility For Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein
or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely
by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against
the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates
authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default
by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case
of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting
the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise
or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation,
Removal And Appointment Of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted,
or under any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency
or similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with
like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled
to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Article
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
And Demands To The Company And Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Threshold
Pharmaceuticals, Inc., 170 Harbor Way, South San Francisco,
California 94080, Attention: [●] (or such other address as shall be specified in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
Of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of
the Securities Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise,
a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy
of such Prospectus.
6.6 Obtaining
Of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States
Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer,
and delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrants
or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under Warrant Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
Of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
EXHIBIT
4.9
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first
above written.
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THRESHOLD PHARMACEUTICALS, INC., as Company |
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COUNTERSIGNED |
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[●], as Warrant Agent |
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[Signature
Page To Preferred Stock Warrant Agreement]
EXHIBIT
4.9
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Warrants are not immediately exercisable.] |
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[Prior to [●] Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time,
ON [●].
THRESHOLD PHARMACEUTICALS, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
This certifies that
[●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after [●] p.m., [City] time, on [●] and] on or before [●] p.m., [City] time,
on [●] shares of [Title of Warrant Securities] (the “Warrant Securities”), of Threshold Pharmaceuticals,
Inc. (the “Company”) on the following basis: during the period from [●], through and including
[●], the exercise price per Warrant Security will be $[●], subject to adjustment as provided in the Warrant Agreement
(as hereinafter defined) (the “Warrant Price”). The Holder may exercise the Warrants evidenced hereby
by providing certain information set forth on the back hereof and by paying in full, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price for each Warrant Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate
trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”), which
is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced
by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant
Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth
in the Warrant Agreement) or to exercise any voting rights.
Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
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THRESHOLD PHARMACEUTICALS, INC., as Company |
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of the payment.
(To be executed upon exercise
of Warrants)
The undersigned hereby
irrevocably elects to exercise [●] Warrants, evidenced by this Warrant Certificate, to purchase [●] shares of the [Title
of Warrant Securities] (the “Warrant Securities”), of Threshold Pharmaceuticals, Inc. and represents
that he has tendered payment for such Warrant Securities, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], to the order
of Threshold Pharmaceuticals, Inc., c/o [insert name and address of Warrant Agent], in the amount of $[●] in accordance with
the terms hereof. The undersigned requests that said Warrant Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing
the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated: |
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Signature Guaranteed: |
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Signature |
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(Signature must conform
in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a
FINRA member firm).
This Warrant may be exercised
at the following addresses:
By hand at:
By mail at:
[Instructions as to form
and delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities
remaining unexercised—complete as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant]
For
Value Received, [●] hereby sells, assigns and transfers unto:
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the right represented
by the within Warrant to purchase [●] shares of [Title of Warrant Securities] of Threshold Pharmaceuticals, Inc. to which
the within Warrant relates and appoints [●] attorney to transfer such right on the books of the Warrant Agent with full power
of substitution in the premises.
(Signature must conform in all respects
to name of holder as specified on the face of the Warrant)
Exhibit 4.16
Threshold Pharmaceuticals,
Inc.
and
_____________, As Warrant
Agent
Form Of Debt Securities
Warrant Agreement
Dated As Of __________
Threshold
Pharmaceuticals, INC.
FORM OF DEBT SECURITIES WARRANT AGREEMENT
This
Debt Securities Warrant Agreement (this “Agreement”), dated as of [●], between Threshold
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Whereas,
the Company has entered into an indenture dated as of [[●] (the “Senior Indenture”), with [●],
as trustee (such trustee, and any successors to such trustee, herein called the “Senior Trustee”), providing
for the issuance from time to time of its unsubordinated debt securities, to be issued in one or more series as provided in the
Senior Indenture (the “Debt Securities”);] [[●] (the “Subordinated Indenture”),
with [●], as trustee (such trustee, and any successors to such trustee, herein called the “Subordinated Trustee”),
providing for the issuance from time to time of its subordinated debt securities, to be issued in one or more series as provided
in the Subordinated Indenture (the “Debt Securities”);]
Whereas,
the Company proposes to sell [If Warrants are sold with other securities — title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Debt Securities purchasable
through exercise of Warrants] (the “Warrant Debt Securities”), such warrant certificates and other warrant
certificates issued pursuant to this Agreement being herein called the “Warrant Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, registered, transferred, exchanged, exercised and replaced.
Now
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree
as follows:
Article
1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
Of Warrants. [If Warrants alone — Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants — Warrant Certificates will be issued in connection with the issuance of
the Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each
Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant
Debt Security. [If Other Securities and Warrants — Warrant Certificates will be issued with the Other Securities
and each Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other
Securities issued.]
1.2 Execution
And Delivery Of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its countersignature by the Warrant Agent and may
have such letters, numbers, or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by any of its
present or future chief executive officers, presidents, senior vice presidents, vice presidents, chief financial officers, chief
legal officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries or assistant secretaries under
its corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of such authorized officers and may
be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate
shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer
of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
Of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Debt Securities may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates
and shall deliver such Warrant Certificates to or upon the order of the Company.
Article
2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Warrant Agreement and the
applicable Warrant Certificate, entitle the holder thereof, to purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of [●]% of the principal amount thereof [plus accrued amortization,
if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date
from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from the date of their initial issuance.] [The original issue discount ($[●] for each $1,000 principal amount
of Warrant Debt Securities) will be amortized at a [●]% annual rate, computed on a[n] [semi-] annual basis [using a 360-day
year consisting of twelve 30-day months].] Such purchase price for the Warrant Debt Securities is referred to in this Agreement
as the “Warrant Price.”
2.2 Duration
Of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the “Expiration Date”). Each Warrant not exercised at or before [●] p.m., [City]
time, on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such Warrant
under this Agreement shall cease.
2.3 Exercise
Of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Debt Securities purchasable
upon the exercise of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant
Price shall be effective to constitute the person so designated to be named as the holder of record of such Warrant Debt Securities
on such date, but shall be effective to constitute such person as the holder of record of such Warrant Debt Securities for all
purposes at the opening of business on the next succeeding day on which the transfer books for the Warrant Debt Securities purchasable
upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Debt Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books shall next
be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Debt Securities.
The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained
with it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received
of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise,
and (iv) such other information as the Company or the [Senior] [Subordinated] Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company shall issue, pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate evidencing such Warrant, the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it
has been established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date
keep reserved, out of its authorized but unissued Warrant Debt Securities, a number of shares sufficient to provide for the exercise
of the Warrants.
Article
3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights As Holders of Warrant Debt Securities Conferred By Warrants or Warrant Certificates. No Warrant Certificate or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities, including, without
limitation, the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities
or to enforce any of the covenants in the Indenture.
3.2 Lost,
Stolen, Mutilated Or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities. Upon
the issuance of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to
this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation
of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
Of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the [Senior] [Subordinated] Trustee, the holder of any Warrant Debt Securities
or the holder of any other Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in
respect of, such holder’s right to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner
provided in such holder’s Warrant Certificates and in this Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share exchange, merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving
corporation) or (b) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and
assets of the Company as an entirety (in any such case, a “Reorganization Event”), then, as a condition
of such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing the same from the Company’s
successor shall be delivered to the holders of the Warrants, so that such successor shall succeed to and be substituted for the
Company, and assume all the Company’s obligations under, this Agreement and the Warrants. The Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore
shall not have been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations
to deliver Warrant Debt Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the execution hereof. In any case of any such Reorganization
Event, such changes in phraseology and form (but not in substance) may be made in the Warrants thereafter to be issued as may be
appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that any such Reorganization
Event complies with the provisions of this Section 3.4.
3.5 Notice
to Warrantholders. In case the Company shall (a) effect any Reorganization Event or (b) make any distribution on or in
respect of the [title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of the Company,
then the Company shall mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant
Agent, at least ten days prior to the applicable date hereinafter specified, a notice stating the date on which such Reorganization
Event, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders
of [title of Warrant Debt Securities] of record shall be entitled to exchange their shares of [title of Warrant Debt Securities]
for securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up. No failure
to mail such notice nor any defect therein or in the mailing thereof shall affect any such transaction.
Article
4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
And Transfer Of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate principal
amount of Warrant Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust
office, books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office for exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments
of registration of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with
any such exchange or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or registration
of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant
Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate
evidencing a Warrant for a fraction of a Warrant Debt Security or a number of Warrants for a whole number of Warrant Debt Securities
and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under
this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
Of Holders Of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder of
a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
Of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu thereof. The Warrant
Agent shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates in a manner satisfactory
to the Company.
Article
5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions
Of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders from
time to time of the Warrant Certificates shall be subject:
(a) Compensation
And Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent
For The Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any
of the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on,
or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as [Senior] [Subordinated] Trustee under the [Senior] [Subordinated] Indenture.
(f) No
Liability For Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest
on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No
Liability For Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or
any of the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No
Responsibility For Representations. The Warrant Agent shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates
against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve
it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it.
The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application
by the Company of the proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation,
Removal And Appointment Of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be
a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted,
or under any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency
or similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment
of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with
like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled
to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Article
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially adversely affect the interests of the holders of the Warrant Certificates.
6.2 Notices
And Demands To The Company And Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Threshold
Pharmaceuticals, Inc., 170 Harbor Way, South San Francisco, CA 94080, Attention: [●] (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
Of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements of
the Securities Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the Warrants (the
“Prospectus”), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant, prior to or concurrently with the delivery of the
Warrant Debt Securities issued upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume
any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
Of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under United States
Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant Debt Securities
under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale, transfer,
and delivery of the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery of
the Warrants or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights Under Warrant Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but
such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
Of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first
above written.
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[SIGNATURE PAGE TO DEBT SECURITIES WARRANT
AGREEMENT]
Exhibit
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
[Form of Legend if Warrants are not immediately exercisable.] |
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[Prior to [●] Warrants evidenced by this Warrant Certificate cannot be exercised.] |
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS
PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time,
ON [●].
Threshold
Pharmaceuticals, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
This certifies that
[●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time,
on, $[●] principal amount of [Title of Warrant Debt Securities] (the “Warrant Debt Securities”)
of Threshold Pharmaceuticals, Inc. (the “Company”) issued or to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from [●], through and including [●], each Warrant shall entitle
the Holder thereof, subject to the provisions of this Agreement, to purchase the principal amount of Warrant Debt Securities stated
in the Warrant Certificate at the warrant price (the “Warrant Price”) of [●]% of the principal
amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued
interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest
shall have been paid on the Warrant Debt Securities, from the date of their original issuance]. [The original issue discount ($[●]
for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a [●]% annual rate, computed on a[n] [semi-]annual
basis [using a 360-day year consisting of twelve 30-day months]. The Holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full, in lawful money of the United States of America, [in cash
or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price for each Warrant Debt Security with respect to which this Warrant is exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant Agent”),
which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced
by this Warrant Certificate may be exercised to purchase Warrant Debt Securities in the principal amount of $1,000 or any integral
multiple thereof in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate,
there shall be issued to the Holder hereof a new Warrant Certificate evidencing Warrants for the aggregate principal amount of
Warrant Debt Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent.
The Warrant Debt Securities
to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance
with an Indenture, [dated as of [●] (the “Senior Indenture”), between the Company and [●],
as trustee (such trustee, and any successors to such trustee, the “Senior Trustee”)] [dated as of [●],
(the “Subordinated Indenture”), between the Company and [●], as trustee (such trustee, and any
successors to such trustee, the “Subordinated Trustee”)] and will be subject to the terms and provisions
contained in the Warrant Debt Securities and in the Indenture. Copies of the [Senior] [Subordinated] Indenture, including the form
of the Warrant Debt Securities, are on file at the corporate trust office of the [Senior][Subordinated] Trustee.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate principal amount
of Warrant Debt Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation,
the right to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce
any of the covenants of the Indenture.
Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Debt Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of the payment.
(To be executed upon exercise
of Warrants)
The undersigned hereby
irrevocably elects to exercise [●] Warrants, represented by this Warrant Certificate, to purchase $[●] principal amount
of the [Title of Warrant Debt Securities] (the “Warrant Debt Securities”) of Threshold Pharmaceuticals,
Inc. and represents that he has tendered payment for such Warrant Debt Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], to the order of Threshold Pharmaceuticals, Inc., c/o [insert name and address of Warrant Agent], in the amount of $[●]
in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in fully
registered form in the authorized denominations, registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants
exercised is less than all the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing the
Warrants for the aggregate principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
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Signature Guaranteed: |
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(Signature must conform in all respects to name of holder as
specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following addresses:
By hand at:
By mail at:
[Instructions as to form and delivery of Warrant Debt Securities
and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Debt Securities remaining unexercised—complete
as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant]
For
Value Received, [●] hereby sells, assigns and transfers unto:
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the right represented by the within Warrant to purchase $[●]
aggregate principal amount of shares [Title of Warrant Debt Securities] of Threshold Pharmaceuticals, Inc. to which the within
Warrant relates and appoints attorney to transfer such right on the books of the Warrant Agent with full power of substitution
in the premises.
(Signature must conform in all respects
to name of holder as specified on the face of the Warrant)
Signature Guaranteed
Exhibit 5.1
November 2, 2015
Threshold Pharmaceuticals, Inc.
170 Harbor Way, Suite 300
South San Francisco, CA 94080
Ladies and Gentlemen:
We have acted as counsel to Threshold
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement
on Form S-3 (the “Registration Statement”) to be filed by the Company under the Securities Act of 1933, as
amended (the “Securities Act”). The Company has provided us two prospectuses that form a part of the Registration
Statement: (i) a base prospectus (the “Base Prospectus”); and (ii) a sales agreement prospectus (the “Sales
Agreement Prospectus”), covering the offering, issuance and sale of up to $50,000,000 of shares of common stock, $0.001
par value per share, of the Company (the “Common Stock”) that may be issued and sold under the Sales Agreement,
dated November 2, 2015, between the Company and Cowen and Company, LLC (such agreement, the “Sales Agreement”,
and such shares, the “Sales Agreement Shares”). The Base Prospectus provides that it will be supplemented in
the future by one or more prospectus supplements (each, a “Prospectus Supplement”). The Registration Statement,
including the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements) and the Sales Agreement
Prospectus provide for the registration by the Company of:
| · | shares of Common Stock issuable pursuant to the Base Prospectus (as supplemented from time to time
by one or more Prospectus Supplements) (the “Base Prospectus Shares”); |
| · | the Sales Agreement Shares; |
| · | shares of preferred stock, $0.001 par value per share, of the Company (the “Preferred
Stock”) issuable pursuant to the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements); |
| · | debt securities, in one or more series (the “Debt Securities”), issuable pursuant
to the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements), which Debt Securities may be
issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between
a trustee to be selected by the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.12 to
the Registration Statement (the “Indenture”); |
| · | warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”),
issuable pursuant to the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements), which Warrants
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 a warrant agent to be selected by the Company (the “Warrant Agent”) and the Company, in the forms
filed as Exhibits 4.14, 4.15 and 4.16 to the Registration Statement (each, a “Warrant Agreement”); and |
| · | with respect to the Base Prospectus Shares and the Sales Agreement Shares, the preferred stock
purchase rights (the “Rights”) associated with the Common Stock to be issued pursuant to that certain Preferred
Shares Rights Agreement, dated as of August 8, 2006 (the “Rights Agreement”), as amended, between the Company
and Mellon Investor Services LLC, as rights agent (the “Rights Agent”). |
101 CALIFORNIA
STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-2000 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Threshold Pharmaceuticals, Inc.
November 2, 2015
Page Two
The Base Prospectus Shares and the Sales
Agreement Shares, the Preferred Stock, the Debt Securities and the Warrants are collectively referred to herein as the “Securities.”
The Securities are being registered for offer and sale from time to time pursuant to Rule 415 under the Securities Act. The aggregate
public offering price of the Securities being registered is $200,000,000.
In connection with this opinion, we have
examined and relied upon originals, or copies certified to our satisfaction, of such records, documents, certificates, opinions,
memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.
As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified
such matters.
In rendering this opinion, we have assumed
the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as copies; and the accuracy, completeness and authenticity
of certificates of public officials.
With respect to our opinion as to the Base
Prospectus Shares, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock is authorized
and available for issuance and that the consideration for the issuance and sale of the Base Prospectus Shares (or Preferred Stock
or Debt Securities convertible into Base Prospectus Shares or Warrants exercisable for Base Prospectus Shares) is in an amount
that is not less than the par value of the Common Stock.
With respect to our opinion as to the
Sales Agreement Shares, we have assumed that no more than 12,755,102 Sales Agreement Shares will be sold based on a sale price
of $3.92 per share, representing the last reported sale price of the Common Stock on the Nasdaq Capital Market on October 26,
2015, and that the sale of the Sales Agreement Shares will be duly authorized by a committee of the Board of Directors of the
Company (the “Board”). With respect to our opinion as to the Sales Agreement Shares to be issued after the
date hereof, we express no opinion to the extent that, notwithstanding its current reservation of shares of Common Stock, future
issuances of securities of the Company and/or anti-dilution adjustments to outstanding securities of the Company cause outstanding
securities to be exercisable or convertible for more shares of Common Stock than the number that remain authorized but unissued.
With respect to our opinion as to the Preferred
Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock is 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 exercisable for Preferred Stock) is in an amount that is not less than the par value
of the Preferred Stock. We have also assumed that any Warrants offered under the Registration Statement, and the related Warrant
Agreement, will be executed in the forms filed as exhibits to the Registration Statement or incorporated by reference therein.
We have also assumed that (i) with respect to Securities being issued upon conversion of any convertible Preferred Stock, the applicable
convertible Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable; and (ii) with respect to any
Securities being issued upon conversion of any convertible Debt Securities or upon exercise of any Warrants, the applicable convertible
Debt Securities or Warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium
or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability
of equitable relief, including specific performance.
101 CALIFORNIA
STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-2000 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Threshold Pharmaceuticals, Inc.
November 2, 2015
Page Three
In rendering this opinion, we have also
assumed that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent and that the members of
the Board have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights
Agreement. This opinion does not address the determination a court of competent jurisdiction may make regarding whether the Board
may be required to redeem or terminate, or take other action with respect to, the Rights in the future based on the facts and circumstances
then existing. Moreover, this opinion addresses corporate procedures in connection with the issuance of the Rights associated with
the Base Prospectus Shares and Sales Agreement Shares, and not any particular provision of the Rights or the Rights Agreement.
It should be understood that it is not settled whether the invalidity of any particular provision of a rights agreement or purchase
rights issued thereunder would invalidate such rights in their entirety.
Our opinion herein is expressed solely
with respect to the federal laws of the United States, the General Corporation Law of the State of Delaware and, as to the Debt
Securities and the Warrants constituting valid and legally binding obligations of the Company, solely with respect to the laws
of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion as to whether
the laws of any particular jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance
with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the foregoing and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that:
| 1. | With respect to the Base Prospectus Shares offered under the Registration Statement, provided that:
(i) the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities
Act and the Base Prospectus and any and all Prospectus Supplement(s), required by applicable laws have been delivered and filed
as required by such laws; (ii) the issuance of the Base Prospectus Shares has been duly authorized by all necessary corporate action
on the part of the Company; (iii) the issuance and sale of the Base Prospectus Shares do not violate any applicable law, are in
conformity with the Company’s then operative amended and restated certificate of incorporation (the “Certificate
of Incorporation”) and amended and restated bylaws (the “Bylaws”), do not result in a default under
or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company; and (iv) the certificates for the Base Prospectus Shares
have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof
against payment therefor, then the Base Prospectus Shares and the associated Rights, when issued and sold as contemplated in the
Registration Statement, the Base Prospectus and the related Prospectus Supplement(s) and in accordance with a duly authorized,
executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock, or convertible
Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be duly authorized
and validly issued, and the Base Prospectus Shares fully paid and nonassessable. |
| 2. | With respect to the Sales Agreement Shares, when issued and paid for in accordance with the Sales
Agreement and as contemplated in the Registration Statement and the Sales Agreement Prospectus, the Sales Agreement Shares and
the associated Rights will be duly authorized and validly issued, and the Sales Agreement Shares fully paid and nonassessable. |
101 CALIFORNIA
STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-2000 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Threshold Pharmaceuticals, Inc.
November 2, 2015
Page Four
| 3. | With respect to the Preferred Stock offered under the Registration Statement, provided that: (i)
the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act
and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required
by such laws; (ii) the terms and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on
the part of the Company; (iii) the terms of the shares of Preferred Stock and their issuance and sale do not violate any applicable
law, are in conformity with the Certificate of Incorporation and Bylaws, do not result in a default under or breach of any agreement
or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company; and (iv) the certificates for the Preferred Stock have been duly executed by the Company,
countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Preferred
Stock, when issued and sold as contemplated in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s)
and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon
conversion of any convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with
their terms, will be duly authorized, validly issued, fully paid and nonassessable. |
| 4. | With respect to any series of the Debt Securities issued under the Indenture and offered under
the Registration Statement, provided that: (i) the Registration Statement and any required post-effective amendment thereto have
all become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable
laws have been delivered and filed as required by such laws; (ii) the Indenture has been duly authorized by the Company and the
Trustee by all necessary corporate action; (iii) the Indenture in substantially the form filed as an exhibit to the Registration
Statement, has been duly executed and delivered by the Company and the Trustee; (iv) the issuance and terms of the Debt Securities
have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Debt Securities and of their issuance
and sale have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation
and Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vi) the Debt Securities have been duly executed and delivered by the Company and authenticated by the Trustee
pursuant to the Indenture and delivered against payment therefor, then the Debt Securities, when issued and sold in accordance
with the Indenture and a duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon exercise
of any Warrants under the Warrant Agreement, will be valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors’ rights generally, and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding at law or in equity). |
| 5. | With respect to the Warrants issued under the Warrant Agreement and offered under the Registration
Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become effective
under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been
delivered and filed as required by such laws; (ii) the Warrant Agreement has been duly authorized by the Company and the Warrant
Agent by all necessary corporate action; (iii) the Warrant Agreement has been duly executed and delivered by the Company and the
Warrant Agent; (iv) the issuance and terms of the Warrants have been duly authorized by the Company by all necessary corporate
action; (v) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant
Agreement and as described in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not
to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so
as to be in conformity with the Certificate of Incorporation and Bylaws, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company; and (vi) the Warrants have been duly executed and
delivered by the Company and authenticated by the Warrant Agent pursuant to the Warrant Agreement and delivered against payment
therefor, then the Warrants, when issued and sold as contemplated in the Registration Statement, the Base Prospectus and the Prospectus
Supplement(s) and in accordance with the Warrant Agreement and a duly authorized, executed and delivered purchase, underwriting
or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors’ rights generally, and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity). |
101 CALIFORNIA
STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-2000 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Threshold Pharmaceuticals, Inc.
November 2, 2015
Page Five
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to our firm under the captions “Legal Matters”
in the prospectuses included in the Registration Statement. This opinion is expressed as of the date hereof, and we disclaim any
undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable
law.
Sincerely, |
|
|
|
Cooley LLP |
|
|
|
|
By: |
/s/ Chadwick L. Mills |
|
|
Chadwick L. Mills |
|
101 CALIFORNIA
STREET, 5TH FLOOR, SAN FRANCISCO, CA 94111-2000 T: (415) 693-2000 F: (415) 693-2222 www.cooley.com
Exhibit 12.1
STATEMENT REGARDING COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(in thousands)
|
|
Year Ended
December 31, |
|
|
Nine Months
Ended
September
30, |
|
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
|
2015 |
|
Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
$ |
(18,682 |
) |
|
$ |
(25,653 |
) |
|
$ |
(71,135 |
) |
|
$ |
(28,213 |
) |
|
$ |
(21,786 |
) |
|
$ |
(25,891 |
) |
Add Fixed Charges (from below) |
|
|
374 |
|
|
|
329 |
|
|
|
225 |
|
|
|
187 |
|
|
|
250 |
|
|
|
171 |
|
Total earnings (loss) to cover fixed charges |
|
|
(18,308 |
) |
|
|
(25,324 |
) |
|
|
(70,910 |
) |
|
|
(28,026 |
) |
|
|
(21,536 |
) |
|
|
(25,720 |
) |
Fixed Charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
Interest component of rent expense(1) |
|
|
374 |
|
|
|
329 |
|
|
|
225 |
|
|
|
187 |
|
|
|
250 |
|
|
|
171 |
|
Total fixed charges |
|
|
374 |
|
|
|
329 |
|
|
|
225 |
|
|
|
187 |
|
|
|
250 |
|
|
|
171 |
|
Ratio of earnings to fixed charges(2) |
|
|
N/A |
(3) |
|
|
N/A |
(3) |
|
|
N/A |
(3) |
|
|
N/A |
(3) |
|
|
N/A |
(3) |
|
|
N/A |
(3) |
| (1) | Represents the estimated portion of rental expense from operating leases that is considered by us to be representative of interest. |
| (2) | We have not had any preferred stock outstanding during the periods presented; therefore, the ratio of earnings to (and the
deficiency of earnings available to cover) combined fixed charges and preferred stock dividends is the same as our ratio of earnings
to (and the deficiency of earnings available to cover) fixed charges alone. |
| (3) | Earnings were insufficient to cover fixed charges for each of the periods presented. The amount of the coverage deficiency
was $18.7 million, $25.7 million, $71.1 million, $28.2 million and $21.8 million for the years ended December 31, 2010, 2011, 2012,
2013 and 2014, respectively, and $25.9 million for the nine months ended September 30, 2015. |
Exhibit 23.1
CONSENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our
firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Threshold
Pharmaceuticals, Inc. for the registration of up to $200,000,000 of any combination of common stock, preferred stock, debt
securities and warrants and to the incorporation by reference therein of our reports dated March 3, 2015, with respect
to the consolidated financial statements of Threshold Pharmaceuticals, Inc., and the effectiveness of internal control over
financial reporting of Threshold Pharmaceuticals, Inc., included in its Annual Report (Form 10-K) for the year ended
December 31, 2014, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
November 2, 2015
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