As filed with the Securities and Exchange Commission on November 1, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BioXcel Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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82-1386754
(I.R.S. Employer
Identification Number)
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555 Long Wharf Drive
New Haven, CT 06511
(475) 238-6837
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Vimal Mehta, Ph.D.
Chief Executive Officer
BioXcel Therapeutics, Inc.
780 East Main Street
Branford, CT 06405
(203) 643-8060
(Address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Peter N. Handrinos
Keith L. Halverstam
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
(617) 948 6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of 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 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus which covers the offering, issuance and sale by us of up to $350,000,000 in the aggregate of the securities identified above from time to time in one or more offerings; and
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a sales agreement prospectus supplement, which covers the offering, issuance and sale by us of up to $150,000,000 in the aggregate of shares of our common stock that may be issued and sold under an Open Market Sale AgreementSM, as amended, or the Sales Agreement, with Jefferies LLC.
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus supplement immediately follows the base prospectus. The $150,000,000 of shares of common stock that may be offered, issued and sold under the sales agreement prospectus supplement is included in the $350,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales Agreement with Jefferies LLC, any portion of the $150,000,000 included in the sales agreement prospectus supplement that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares of common stock are sold under the Sales Agreement, the full $150,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 1, 2023
PROSPECTUS
BioXcel Therapeutics, Inc.
$350,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell up to $350,000,000 in the aggregate of the securities identified above from time to time in one or more offerings. This prospectus provides you with a general description of the securities.
Each time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the offering, as well as the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” ON PAGE 5 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our common stock is listed on the Nasdaq Capital Market under the symbol “BTAI.” On October 30, 2023, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.99 per share.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings as described in this prospectus. Each time that we offer and sell securities, we will provide a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and the specific 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 or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and the applicable prospectus supplement (and any applicable free writing prospectuses), together with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
We have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this prospectus is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
When we refer to “BioXcel,” “we,” “our,” “us” and the “Company” in this prospectus, we mean BioXcel Therapeutics, Inc. and its consolidated subsidiaries, unless otherwise specified. When we refer to “you,” we mean the potential holders of the applicable series of securities.
We have proprietary rights to a number of trademarks used in this prospectus which are important to our business, including the BTI logo. Solely for convenience, the trademarks and trade names in this prospectus are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto. All other trademarks, trade names and service marks appearing in this prospectus are the property of their respective owners.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov.
Our web site address is https://www.bioxceltherapeutics.com/. The information on our web site, however, is not, and should not be deemed to be, a part of this prospectus.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed with the SEC on May 9, 2023 and August 14, 2023.
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Our Current Reports on Form 8-K filed with the SEC on February 13, 2023, February 21, 2023, March 10, 2023, March 15, 2023, March 16, 2023, April 20, 2023, June 29, 2023, June 30, 2023, August 22, 2023, September 7, 2023, September 12, 2023, September 19, 2023 and September 25, 2023.
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, prior to the termination of this offering, including all such documents we may file with the SEC after the date of filing of this registration statement and prior to the effectiveness of this registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
BioXcel Therapeutics, Inc.
555 Long Wharf Drive
New Haven, CT 06511
(475) 238-6837
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
THE COMPANY
BioXcel Therapeutics, Inc. (“BTI” or the “Company”) is a biopharmaceutical company utilizing artificial intelligence (“AI”) approaches to develop transformative medicines in neuroscience and immuno-oncology. We are focused on utilizing cutting-edge technology and innovative research to develop high-value therapeutics aimed at transforming patients’ lives. We employ proprietary AI platforms to reduce therapeutic development costs and potentially accelerate development timelines. Our approach leverages existing approved drugs and/or clinically evaluated product candidates together with big data and proprietary machine learning algorithms to identify new therapeutic indications. We believe this differentiated approach has the potential to reduce the expense and time associated with drug development in diseases with substantial unmet medical needs.
Our most advanced neuroscience asset is BXCL501. In indications other than those approved by the United States (“U.S.”) Food and Drug Administration (“FDA”) as IGALMI™, BXCL501 is an investigational, proprietary, orally dissolving film formulation of dexmedetomidine (or “Dex”) in development for the treatment of agitation associated with psychiatric and neurological disorders. Our most advanced immuno-oncology asset, BXCL701, is an investigational oral innate immune activator currently being developed as a potential therapy for the treatment of aggressive forms of prostate cancer, pancreatic cancer, and other solid and liquid tumors.
On April 6, 2022, we announced that the FDA approved IGALMI™ sublingual film for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder in adults. IGALMI is approved to be self-administrated by patients under the supervision of a health care provider. On July 6, 2022, we announced that IGALMI was commercially available in doses of 120 and 180 microgram through the Company’s third-party logistics provider and was available for order through wholesalers.
We are continuing to develop BXCL501 for the acute treatment of agitation associated with bipolar disorders or schizophrenia in the at-home setting and for the acute treatment of agitation associated with mild to moderate dementia due to probable Alzheimer’s disease in the at-home setting or in assisted living facilities. We have recently deprioritized certain other indications of BXCL501, including as a potential adjunctive treatment for major depressive disorder, as well as our BXCL701 program.
We filed a certificate of amendment to our amended and restated certificate of incorporation with the Secretary of State of Delaware on June 14, 2021. Our principal executive offices are located at 555 Long Wharf Drive, New Haven, CT 06511, and our telephone number is (475) 238-6837.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. You should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K, our most recent Quarterly Report on Form 10-Q, and our recently filed Current Reports on Form 8-K, as well as any subsequent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K we file after the date of this prospectus, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and may not contain all the information you should consider before investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our first amendment to our amended and restated certificate of incorporation, which has been publicly filed with the SEC. See “Where You Can Find More Information; Incorporation by Reference.”
Our authorized capital stock consists of:
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100,000,000 shares of common stock, $0.001 par value; and
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10,000,000 shares of preferred stock, $0.001 par value.
Common Stock
We are authorized to issue up to a total of 100,000,000 shares of common stock, par value $0.001 per share. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of our stockholders. Holders of our common stock have no cumulative voting rights. Further, holders of our common stock have no preemptive or conversion rights or other subscription rights.
Upon our liquidation, dissolution or winding-up, holders of our common stock are entitled to share in all assets remaining after payment of all liabilities and the liquidation preferences of any of our outstanding shares of preferred stock. Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of our assets which are legally available. Such dividends, if any, are payable in cash, in property or in shares of capital stock.
The holders of one-third of the voting power of our issued and outstanding capital stock, represented in person or by proxy, are necessary to constitute a quorum for the transaction of business at any meeting. If a quorum is present, an action by stockholders entitled to vote on a matter is approved if the number of votes cast in favor of the action exceeds the number of votes cast in opposition to the action unless a different vote is required by law, the charter, the by-laws or, with respect to a class or series of preferred stock, the terms of any resolution or resolutions adopted by the board of directors. Pursuant to our charter, the election of directors requires a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon.
Transfer Agent
The Transfer Agent and Registrar for our common stock is American Stock Transfer and Trust Company.
Dividend
We have never paid or declared any cash dividends on our common stock, and we do not anticipate paying any cash dividends on our common stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors that our board of directors deems relevant.
Preferred Stock
Our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of preferred stock in one or more series and to fix the designations, powers, preferences, privileges, and relative participating, optional, or special rights as well as the qualifications, limitations, or restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, and liquidation preferences, any or all of which may be greater than the rights of the common stock. Our board of directors, without stockholder approval, can issue convertible preferred stock with voting,
conversion, or other rights that could adversely affect the voting power and other rights of the holders of common stock. Preferred stock could be issued quickly with terms calculated to delay or prevent a change of control or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock, and may adversely affect the voting and other rights of the holders of common stock.
Anti-Takeover Effects of Certain Provisions of our Charter and Bylaws and the DGCL
Delaware Law
We are governed by the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly traded Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. A business combination includes mergers, asset sales or other transactions resulting in a financial benefit to the stockholder. An interested stockholder is a person who, together with affiliates and associates, owns (or within three years, did own) 15% or more of the corporation’s voting stock, subject to certain exceptions. The statute could have the effect of delaying, deferring or preventing a change in control of our Company.
Classified Board of Directors
Our charter provides that our Board is divided into three classes, with the classes as nearly equal in number as possible and each class serving three-year staggered terms. Directors may only be removed from our board of directors for cause and only by the affirmative vote of holders of a majority of the voting power of all then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control of us or our management.
Board of Directors Vacancies
Our charter and bylaws authorize only our board of directors to fill vacant directorships. In addition, the number of directors constituting our board of directors may be set only by resolution of the majority of the incumbent directors.
Stockholder Action; Special Meeting of Stockholders
Our charter and bylaws provide that our stockholders may not take action by written consent. Our charter and bylaws further provide that special meetings of our stockholders may be called by a majority of the board of directors, the Chief Executive Officer, or the Chairman of the board of directors.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our bylaws provide that stockholders seeking to bring business before our annual meeting of stockholders, including to nominate candidates for election as directors at our annual meeting of stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s notice must be delivered to the Secretary at our principal executive offices not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which a public announcement of the date of such meeting is first made by us. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders.
Authorized but Unissued Shares
Our authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval and may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and a trustee to be named in the applicable indenture. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, “BioXcel,” “we,” “our” or “us” refer to BioXcel Therapeutics, Inc., excluding our subsidiaries, unless expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. (Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made;
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if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange;
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. (Section 2.2).
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt
securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7).
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities. (Article IV).
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
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we are the surviving corporation or the successor person (if other than BioXcel) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1).
Events of Default
“Event of Default” means with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or BioXcel and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of BioXcel;
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. (Section 6.1).
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof. (Section 6.1).
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. (Section 7.1(e)) Subject to certain rights of the trustee, 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. (Section 6.12).
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and
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the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7).
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment. (Section 6.8).
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each securityholder of the securities of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities. (Section 7.5).
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency;
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
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to provide for uncertificated securities in addition to or in place of certificated securities;
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to add guarantees with respect to debt securities of any series or secure debt securities of any series;
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to surrender any of our rights or powers under the indenture;
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to add covenants or events of default for the benefit of the holders of debt securities of any series;
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to comply with the applicable procedures of the applicable depositary;
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to make any change that does not adversely affect the rights of any holder of debt securities;
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. (Section 9.1).
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each
affected debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to any debt security. (Section 9.3).
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration. (Section 6.13).
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 8.3).
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4).
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors, officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New York.
The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section 10.10).
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue warrants independently or together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary of material provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise;
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the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock;
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the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property;
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the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable;
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the terms of any rights to redeem or call the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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U.S. federal income tax consequences applicable to the warrants; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange, exercise and settlement of the warrants.
Holders of equity warrants will not be entitled:
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to vote, consent or receive dividends;
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receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or
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exercise any rights as stockholders of BioXcel.
Each warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. A holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock or preferred stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock, if any.
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions, and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in book- entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law;
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a “banking organization” within the meaning of the New York Banking Law;
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a member of the Federal Reserve System;
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
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a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise provided in the description of the applicable securities herein or in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
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DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be;
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we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
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an Event of Default has occurred and is continuing with respect to such series of securities,
we will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A., which we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,” either directly if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’ securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s books.
Clearstream and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments, deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
Other
The information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective operations.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed from time to time in one or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices;
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at negotiated prices;
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ordinary brokerage transactions and transactions in which the broker solicits purchasers; or
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any other method permitted pursuant to applicable law.
Each time that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds to us.
Offers to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
Any compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.
Any common stock will be listed on the Nasdaq Global Market, but any other securities may or may not be listed on a national securities exchange. To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities
sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
The specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL MATTERS
Latham & Watkins LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of BioXcel Therapeutics, Inc. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of BioXcel Therapeutics, Inc. appearing in BioXcel Therapeutics, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
$350,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2023
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 1, 2023
PROSPECTUS SUPPLEMENT
Up to $150,000,000 shares of
Common Stock
We have entered into an Open Market Sale Agreement™, or sales agreement, with Jefferies LLC, or Jefferies, dated May 10, 2021, as amended on November 1, 2023, relating to the sale of shares of our common stock offered by this prospectus supplement. The amended sales agreement provides that we may offer and sell shares of our common stock having an aggregate offering price of up to $150,000,000. Under this prospectus supplement, in accordance with the terms of the amended sales agreement we may offer and sell shares of our common stock having an aggregate offering price of up to $150,000,000 from time to time through Jefferies, acting as our agent.
Our common stock is listed on the Nasdaq Capital Market under the symbol “BTAI.” On October 30, 2023, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.99 per share.
We are an emerging growth company as that term is used in the Jumpstart Our Business Startups Act of 2012 and a smaller reporting company as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended. As such, we have elected to rely on certain reduced public company disclosure requirements. See “Summary — Emerging Growth Company Status.”
Sales of our common stock, if any, under this prospectus supplement and the accompanying base prospectus will be made by any method permitted that is deemed an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on or through the Nasdaq Capital Market or any other existing trading market for our common stock. Jefferies is not required to sell any specific amount, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Jefferies will be entitled to compensation at a commission rate up to 3.00% of the gross sales price per share sold under the sales agreement, as amended. See “Plan of Distribution” beginning on page S-14 of this prospectus supplement for additional information regarding the compensation to be paid to Jefferies. In connection with the sale of our common stock on our behalf, Jefferies will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to Jefferies with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE “RISK FACTORS” ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT, ON PAGE 5 OF THE ACCOMPANYING BASE PROSPECTUS AND OUR FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION, OR THE SEC, THAT ARE INCORPORATED BY REFERENCE HEREIN AND THEREIN TO READ ABOUT FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR COMMON STOCK.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus supplement or the accompanying base prospectus. Any representation to the contrary is a criminal offense.
Jefferies
The date of this prospectus supplement is , 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement is part of a registration statement that we have filed with the SEC utilizing a “shelf” registration process, and relates to the offering of our common stock. Before buying any of the shares of common stock that we are offering, we urge you to carefully read this prospectus supplement, the accompanying base prospectus and all of the information incorporated by reference herein and therein, as well as the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference” in this prospectus supplement. These documents contain important information that you should consider when making your investment decision.
We provide information to you about this offering of our common stock in two separate documents that are bound together: (1) this prospectus supplement, which describes the specific details regarding this offering; and (2) the accompanying base prospectus, which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If information in this prospectus supplement is inconsistent with the accompanying base prospectus, you should rely on this prospectus supplement. To the extent there is a conflict between the information contained in this prospectus supplement, on the one hand, and the information contained in any document incorporated by reference in this prospectus supplement, on the other hand, you should rely on the information in this prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus supplement — the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in or incorporated by reference in this prospectus supplement, the accompanying base prospectus and any free writing prospectus that we may authorize for use in connection with this offering. We have not, and Jefferies has not, authorized anyone to provide you with different information from what is contained in this prospectus supplement, and neither we nor Jefferies take any responsibility for, can provide no assurance as to the reliability of any other information others give you. We are not, and Jefferies is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted 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 supplement, the accompanying base prospectus, the documents incorporated by reference herein and therein and any free writing prospectus that we have authorized 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 supplement, the accompanying base prospectus, the documents incorporated by reference herein and therein and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an investment decision.
When we refer to “BTI,” “we,” “our,” “us” or the “Company” in this prospectus supplement, we mean BioXcel Therapeutics, Inc., unless otherwise specified.
We have proprietary rights to a number of trademarks used in this prospectus supplement that are important to our business, including the BTI logo. Solely for convenience, the trademarks and trade names in this prospectus supplement are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto. All other trademarks, trade names and service marks appearing in this prospectus supplement are the property of their respective owners.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We are subject to the information and periodic reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and, in accordance therewith, file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
Copies of certain information filed by us with the SEC are also available on our web site. Our web site address is www.bioxceltherapeutics.com. The information on our website is not a part of, and should not be construed as being incorporated by reference into, this prospectus supplement.
This prospectus supplement and the accompanying base prospectus are part of a registration statement that we filed with the SEC and do not contain all of the information included in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. You should review the information and exhibits in the registration statement for further information about us and the securities we are offering. Statements in this prospectus supplement or the accompanying base prospectus about any document we filed as an exhibit to the registration statement or that we have otherwise filed with the SEC are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above.
Incorporation by Reference
The SEC’s rules allow us to “incorporate by reference” information in this prospectus supplement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference herein is deemed to be part of this prospectus supplement and the accompanying base prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained in this prospectus supplement modifies or replaces that statement.
This prospectus supplement incorporates by reference the documents set forth below that have previously been filed with the SEC:
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed with the SEC on May 9, 2023 and August 14, 2023.
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Our Current Reports on Form 8-K filed with the SEC on February 13, 2023, February 21, 2023, March 10, 2023, March 15, 2023, March 16, 2023, April 20, 2023, June 29, 2023, June 30, 2023, August 22, 2023, September 7, 2023, September 12, 2023, September 19, 2023 and September 25, 2023.
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All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, prior to the termination of this offering, including all such documents we may file with the SEC after the
date of filing of this registration statement and prior to the effectiveness of this registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any of the documents incorporated by reference in this prospectus by writing or telephoning us at the following address:
BioXcel Therapeutics, Inc.
555 Long Wharf Drive
New Haven, CT 06511
(475) 238-6837
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus supplement.
SUMMARY
This summary highlights selected information contained elsewhere in this prospectus supplement and the accompanying base prospectus and in the documents we incorporate by reference herein and therein. This summary does not contain all of the information you should consider before investing in our common stock. You should read this entire prospectus supplement and the accompanying base prospectus carefully, especially the risks of investing in our common stock discussed under “Risk Factors” beginning on page S-7 of this prospectus supplement and page 5 of the accompanying base prospectus, along with our financial statements and notes to those financial statements and the other information incorporated by reference in this prospectus supplement and the accompanying base prospectus.
Overview of the Company
BioXcel Therapeutics, Inc. (“BTI” or the “Company”) is a biopharmaceutical company utilizing artificial intelligence (“AI”) approaches to develop transformative medicines in neuroscience and immuno-oncology. We are focused on utilizing cutting-edge technology and innovative research to develop high-value therapeutics aimed at transforming patients’ lives. We employ proprietary AI platforms to reduce therapeutic development costs and potentially accelerate development timelines. Our approach leverages existing approved drugs and/or clinically evaluated product candidates together with big data and proprietary machine learning algorithms to identify new therapeutic indications. We believe this differentiated approach has the potential to reduce the expense and time associated with drug development in diseases with substantial unmet medical needs.
Our most advanced neuroscience asset is BXCL501. In indications other than those approved by the United States (“U.S.”) Food and Drug Administration (“FDA”) as IGALMI™, BXCL501 is an investigational, proprietary, orally dissolving film formulation of dexmedetomidine (or “Dex”) in development for the treatment of agitation associated with psychiatric and neurological disorders. On April 6, 2022, we announced that the FDA approved IGALMITM sublingual film for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder in adults. IGALMI is approved to be self-administrated by patients under the supervision of a health care provider. On July 6, 2022, we announced that IGALMI was commercially available in doses of 120 and 180 microgram through the Company’s third-party logistics provider and was available for order through wholesalers.
TRANQUILITY II Phase 3 Trial Site Review
As part of the Company’s TRANQUILITY program, the Company has conducted clinical studies evaluating BXCL501 for the acute treatment of agitation associated with mild to moderate dementia in patients with probable Alzheimer’s disease, who reside in assisted living facilities and residential care settings and who required minimal assistance with activities of daily living. On June 29, 2023, the Company announced positive topline data from the TRANQUILITY II trial, as well as information regarding certain investigator misconduct and noncompliance at a clinical trial site. Since that time, the Company has taken steps to further investigate and evaluate the conduct of the TRANQUILITY II trial. Based on these steps to date, the Company believes that there have been no further instances of misconduct or fraud or other findings that adversely impact the data integrity or reliability of the eligibility, safety, and efficacy data generated at the clinical trial site in question. The Company therefore continue to believe that the positive, statistically significant TRANQUILITY II data announced in June 2023 may be used in support of a potential supplemental new drug application for BXCL501 for the acute treatment of agitation associated with mild to moderate dementia due to probable Alzheimer’s disease.
Permanent J-Code for IGALMI™ (dexmedetomidine) Sublingual Film from Centers for Medicare & Medicaid Services
On October 30, 2023 the Company announced that the Centers for Medicare & Medicaid Services (CMS) has issued a permanent and product-specific J-Code for IGALMI™ (dexmedetomidine) sublingual film, which is approved for the acute treatment of agitation associated with schizophrenia or bipolar I or II disorder in adults. Under the Healthcare Common Procedure Coding System (HCPCS) process, the IGALMI J-Code J1105 will become effective January 1, 2024.
Our Corporate Information
We filed a certificate of amendment to our amended and restated certificate of incorporation with the Secretary of State of Delaware on June 14, 2021. Our principal executive offices are located at 555 Long Wharf Drive, New Haven, Connecticut 06511, and our telephone number is (475) 238-6837. Our website address is www.bioxceltherapeutics.com. The information contained in, or accessible through, our website does not constitute a part of this prospectus supplement.
Emerging Growth Company Status
We qualify as an emerging growth company as defined in the Jumpstart Our Business Startups Act, or the JOBS Act, enacted in 2012. As an emerging growth company, we may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:
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not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
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reduced disclosure obligations regarding our executive compensation; and
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exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.
We may take advantage of these provisions until December 31, 2023. Effective as of December 31, 2023, we will no longer be allowed to take advantage of the reduced reporting requirements that are applicable to emerging growth companies. Until such time, however, we are permitted and will continue to rely on various exemptions from certain disclosure requirements as an emerging growth.
The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. We irrevocably elected not to avail ourselves of this exemption and, therefore, we are subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
Accordingly, the information contained or incorporated by reference herein may be different than the information you receive from other public companies in which you hold stock.
THE OFFERING
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $150,000,000.
“At the market offering” that may be made from time to time on the Nasdaq Capital Market or other existing trading market for our common stock through Jefferies, as sales agent. See the section entitled “Plan of Distribution” on page S-14 of this prospectus supplement.
66,861,181 shares, assuming sales of 37,593,984 shares of our common stock in this offering at an offering price of $3.99 per share, which was the last reported sale price of our common stock on the Nasdaq Capital Market on October 30, 2023. The actual number of shares issued will vary depending on how many shares of our common stock we choose to sell and the prices at which such sales occur.
We intend to use the net proceeds of this offering to fund ongoing clinical trials, commercialization preparation and for general corporate purposes. See the section entitled “Use of Proceeds” on page S-11 of this prospectus supplement.
See “Risk Factors” beginning on page S-7 of this prospectus supplement and the other information included in, or incorporated by reference into, this prospectus supplement for a discussion of certain factors you should carefully consider before deciding to invest in shares of our common stock.
Nasdaq Capital Market symbol
BTAI
The number of shares of our common stock to be outstanding immediately after this offering is based on 29,267,197 shares of our common stock outstanding as of June 30, 2023 and excludes:
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5,604,188 shares of common stock issuable upon exercise of stock options outstanding as of June 30, 2023, at a weighted average exercise price of $18.54 per share;
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560,902 shares of common stock reserved for future issuance under our 2020 Incentive Award Plan as of June 30, 2023;
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905,447 shares of common stock reserved for future issuance under our 2020 Employee Stock Purchase Plan as of June 30, 2023;
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196,718 shares of common stock issuable upon vesting of restricted stock units outstanding as of June 30, 2023; and
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278,520 shares of common stock issuable upon exercise of warrants granted to certain lenders under that certain Credit Agreement and Guaranty, dated April 19, 2022, by and among the Company, Oaktree Fund Administration, LLC, the lenders from time to time party thereto and the guarantors from time to time party thereto, at an exercise price of $20.04 per share.
Unless otherwise indicated, this prospectus supplement does not reflect the exercise of any outstanding options or warrants described above subsequent to June 30, 2023.
RISK FACTORS
Investment in the shares of our common stock offered pursuant to this prospectus supplement and the accompanying base prospectus involves risks. You should carefully consider the risk factors described below and in our Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q filed with the SEC and incorporated by reference in this prospectus supplement, any amendment or update thereto reflected in subsequent filings with the SEC, and all other information contained or incorporated by reference in this prospectus supplement, as updated by our subsequent filings under the Exchange Act. The occurrence of any of these risks might cause you to lose all or part of your investment.
Risks Relating to this Offering
If you purchase shares of our common stock sold in this offering, you will experience immediate and substantial dilution in the net tangible book value of your shares. In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution to you.
The shares of our common stock sold in this offering, if any, will be sold from time to time at various prices. However, we expect that the price per share of our common stock offered hereby will be higher than the net tangible book value per share of our outstanding common stock. Assuming that an aggregate of 37,593,984 shares of our common stock are sold in this offering at a price of $3.99 per share, the last reported sale price of our common stock on the Nasdaq Capital Market on October 30, 2023, for aggregate gross proceeds of approximately $150,000,000, after deducting commissions and estimated offering expenses payable by us, new investors in this offering will incur immediate dilution of $1.73 per share based on the net tangible book value per share of our outstanding common stock as of June 30, 2023.
For a more detailed discussion of the foregoing, see the section entitled “Dilution” below. To the extent outstanding stock options are exercised, there will be further dilution to new investors in this offering. In addition, to the extent we need to raise additional capital in the future and we issue additional shares of common stock or securities convertible or exchangeable for our common stock, our then existing stockholders may experience dilution and the new securities may have rights senior to those of our common stock offered in this offering. 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 have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment. We expect to use the net proceeds from this offering to fund ongoing clinical trials, commercialization preparation and for general corporate purposes. The failure by our management to apply these funds effectively could harm our business. Pending their use, we intend to invest the net proceeds from this offering in short-term, investment-grade, interest-bearing instruments. These investments may not yield a favorable return to our stockholders. If we do not invest or apply the net proceeds from this offering in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to decline.
We do not expect to pay dividends in the foreseeable future. As a result, you may have to rely on stock appreciation for any return on your investment.
We do not anticipate paying cash dividends on our common stock in the foreseeable future. Any payment of cash dividends will, among other things, depend on our financial condition, results of operations, capital requirements and other factors and will be at the discretion of our board of directors. Accordingly, you may have to rely on capital appreciation, if any, to earn a return on your investment in our common stock.
Furthermore, we may in the future become subject to additional contractual restrictions on, or prohibitions against, the payment of dividends.
The actual number of shares we will issue under the sales agreement, as amended, at any one time or in total, is uncertain.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice at any time throughout the term of the sales agreement, as amended. The number of shares that are sold after delivering a placement notice will fluctuate based on the market price of our common stock during the sales period and limits we set. Because the price per share of each share sold will fluctuate based on the market price of our common stock during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
The common stock offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. We intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The words “anticipate,” “believe,” “can,” “continue,” “could,” “designed,” “estimate,” “expect,” “forecast,” “goal,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “target,” “will,” “would” and similar expressions are intended to identify forward-looking statements, though not all forward-looking statements use these words or expressions. All statements contained or incorporated by reference in this prospectus, other than statements of historical fact, are forward-looking statements, including, without limitation, statements regarding:
•
our sales strategy for IGALMITM;
•
strategy relating to, anticipated benefits from, and cost savings from our reprioritization of certain indications for BXCL501 and the deprioritization of certain other indications of BXCL501, including as a potential adjunctive treatment for major depressive disorder, as well as our BXCL701 immuno-oncology program;
•
developments relating to our TRANQUILITY II clinical trial;
•
our ability to restructure or refinance our Credit Agreement and Guaranty and Revenue Interest Financing Agreement and extend our cash runway;
•
our plans relating to clinical trials for our product candidates;
•
our plans to research, develop and commercialize our current and future product candidates;
•
our plans to seek to enter into collaborations for the development and commercialization of certain product candidates;
•
the potential benefits of any future collaboration;
•
the timing of and our ability to obtain and maintain regulatory approvals, including 505(b)(2) regulatory approval, for our product candidates;
•
the rate and degree of market acceptance, clinical utility, number of prescribers and formulary wins of IGALMI and any product candidates for which we receive marketing approval;
•
our commercialization, marketing and manufacturing capabilities and strategy, including the potential benefits from any advertising campaigns;
•
our participation in, and any potential benefits from, events, conferences, presentations and conventions;
•
our intellectual property position and strategy;
•
our estimates regarding expenses, future revenue, capital requirements and need for additional financing;
•
potential investments in, or other strategic options for, our subsidiary, OnkosXcel Therapeutics, LLC;
•
developments relating to our competitors and our industry;
•
the impact of government laws and regulations; and
•
our relationship with BioXcel LLC.
The foregoing list sets forth some, but not all, of the factors that could affect our ability to achieve results described in any forward-looking statements. You should read this prospectus and the documents incorporated by reference herein completely and with the understanding that our actual future results may be materially different from what we expect. You should assume that the information appearing in this prospectus supplement is accurate as of the date on the front cover of this prospectus supplement only. Because the risk factors referred to in this prospectus and incorporated herein by reference could cause actual
results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of the information presented in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference herein and therein, and particularly our forward-looking statements, by these cautionary statements.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sales proceeds of up to $150,000,000 from time to time. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time.
We intend to use the net proceeds of this offering to fund ongoing clinical trials, commercialization preparation and for general corporate purposes.
The amounts and timing of our actual expenditures will depend on numerous factors, including the progress of our clinical trials and other development efforts and other factors described under “Risk Factors” in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference herein and therein, as well as the amount of cash used in our operations. We may find it necessary or advisable to use the net proceeds for other purposes, and we will have broad discretion in the application of the net proceeds from this offering. Pending the uses described above, we plan to invest the net proceeds from this offering in short-term, investment-grade, interest-bearing instruments.
DIVIDEND POLICY
We have never paid or declared any cash dividends on our common stock, and we do not anticipate paying any cash dividends on our common stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors that our board of directors deems relevant.
DILUTION
If you invest in our common stock, your interest will be diluted to the extent of the difference between the price per share you pay in this offering and the net tangible book value per share of our common stock immediately after this offering. Our net tangible book value as of June 30, 2023 was approximately $5.6 million, or approximately $0.19 per share of common stock, based upon 29,267,197 shares of common stock outstanding. Net tangible book value per share is equal to our total tangible assets, less our total liabilities, divided by the total number of shares of common stock outstanding.
Without taking into account any other changes in our net tangible book value after June 30, 2023, other than to give effect to the assumed sale by us of our common stock in the aggregate amount of $150,000,000 at an assumed public offering price of $3.99 per share, which was the last reported sale price of our common stock on the Nasdaq Capital Market on October 30, 2023 and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2023 would have been approximately $150.98 million, or $2.26 per share of common stock. This represents an immediate increase in as adjusted net tangible book value of $2.07 per share to our existing stockholders and an immediate dilution in as adjusted net tangible book value of $1.73 per share to new investors in this offering.
The following table illustrates this calculation on a per share basis. The as adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this prospectus supplement. The as adjusted information assumes that all of our common stock in the aggregate amount of $150,000,000 is sold at the assumed public offering price of $3.99 per share, the last reported sale price of our common stock on the Nasdaq Capital Market on October 30, 2023. The shares sold in this offering, if any, will be sold from time to time at various prices.
|
Assumed public offering price per share
|
|
|
|
|
|
|
|
|
|
$ |
3.99 |
|
|
|
Net tangible book value per share as of June 30, 2023
|
|
|
|
$ |
0.19 |
|
|
|
|
|
|
|
|
|
Increase in net tangible book value per share attributable to the offering
|
|
|
|
|
2.07 |
|
|
|
|
|
|
|
|
|
As adjusted net tangible book value per share after giving effect to the offering
|
|
|
|
|
|
|
|
|
|
|
2.26 |
|
|
|
Dilution per share to new investors participating in the offering
|
|
|
|
|
|
|
|
|
|
$ |
1.73 |
|
|
The number of shares of our common stock outstanding reflected in the discussion and table above is based on 29,267,197 shares of our common stock outstanding as of June 30, 2023. The number of shares outstanding as of June 30, 2023 excludes:
•
5,604,188 shares of common stock issuable upon exercise of stock options outstanding as of June 30, 2023, at a weighted average exercise price of $18.54 per share;
•
560,902 shares of common stock reserved for future issuance under our 2020 Incentive Award Plan as of June 30, 2023;
•
905,447 shares of common stock reserved for future issuance under our 2020 Employee Stock Purchase Plan as of June 30, 2023;
•
196,718 shares of common stock issuable upon vesting of restricted stock units outstanding as of June 30, 2023; and
•
278,520 shares of common stock issuable upon exercise of warrants granted to certain lenders under that certain Credit Agreement and Guaranty, dated April 19, 2022, by and among the Company, Oaktree Fund Administration, LLC, the lenders from time to time party thereto and the guarantors from time to time party thereto, at an exercise price of $20.04 per share.
The foregoing table does not give effect to the exercise of any outstanding options or any automatic increases in the number of shares of our common stock reserved for future issuance. To the extent options are exercised, there may be further dilution to new investors.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Jefferies, dated May 10, 2021, as amended on November 1, 2023, relating to the sale of shares of our common stock offered by this prospectus supplement. The amended sales agreement provides that we may offer and sell shares of our common stock having an aggregate offering price of up to $150,000,000. Sales of our shares of common stock, if any, under this prospectus supplement and the accompanying prospectus will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue and sell our shares of common stock under the sales agreement, as amended, we will notify Jefferies of the number of shares to be issued, the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum price below which sales may not be made. Once we have so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of Jefferies under the sales agreement, as amended, to sell our shares of common stock are subject to a number of conditions that we must meet. The settlement of sales of shares between us and Jefferies is generally anticipated to occur on the second trading day following the date on which the sale was made. Sales of our shares of common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Jefferies a commission up to 3.00% of the aggregate gross proceeds we receive from each sale of our shares of common stock. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In addition, we agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the amendment to the sales agreement, in an amount not to exceed $75,000, in addition to certain ongoing disbursements of its legal counsel. We estimate that the total expenses for the offering, excluding any commissions or expense reimbursement payable to Jefferies under the terms of the sales agreement, as amended, will be approximately $165,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares. Jefferies will provide written confirmation to us before the open on The Nasdaq Capital Market on the day following each day on which our shares of common stock are sold under the sales agreement, as amended. Each confirmation will include the number of shares sold on that day, the aggregate gross proceeds of such sales and the proceeds to us.
In connection with the sale of our shares of common stock on our behalf, Jefferies may be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Jefferies will be deemed to be underwriting commissions or discounts. We have agreed to indemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.
The offering of our shares of common stock pursuant to the sales agreement, as amended, will terminate upon the earlier of (i) the sale of all shares of common stock subject to the sales agreement, as amended, and (ii) the termination of the sales agreement, as amended, as permitted therein. We and Jefferies may each terminate the sales agreement, as amended, at any time upon prior notice.
This summary of the material provisions of the sales agreement, as amended, does not purport to be a complete statement of its terms and conditions. Copies of the sales agreement and the amendment to the sales agreement are filed as an exhibit to the registration statement of which this prospectus supplement forms a part.
Jefferies and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.
A prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus supplement and the accompanying prospectus electronically.
LEGAL MATTERS
Latham & Watkins LLP will pass upon certain legal matters relating to the issuance and sale of the common stock offered hereby on behalf of BioXcel Therapeutics, Inc. Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York, is acting as counsel for Jefferies LLC in connection with this offering.
EXPERTS
The consolidated financial statements of BioXcel Therapeutics, Inc. appearing in BioXcel Therapeutics, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
Up to $150,000,000 shares of
Common Stock
PROSPECTUS SUPPLEMENT
Jefferies
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate of the expenses (all of which are to be paid by the registrant) that we may incur in connection with the securities being registered hereby.
|
SEC registration fee
|
|
|
|
$ |
51,660 |
|
|
|
FINRA filing fee
|
|
|
|
$ |
53,000 |
|
|
|
Printing expenses
|
|
|
|
$ |
(1)
|
|
|
|
Legal fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Accounting fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Blue Sky, qualification fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Transfer agent fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Trustee fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Warrant agent fees and expenses
|
|
|
|
$ |
(1)
|
|
|
|
Miscellaneous
|
|
|
|
$ |
(1)
|
|
|
|
Total
|
|
|
|
$ |
(1)
|
|
|
(1)
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers
Section 102 of the General Corporation Law of the State of Delaware, or the DGCL, permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our charter provides that no director of the Company shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him or her under Section 145.
Any underwriting agreement or distribution agreement that the registrant enters into with any underwriters or agents involved in the offering or sale of any securities registered hereby may require such underwriters or dealers to indemnify the registrant, some or all of its directors and officers and its controlling persons, if any, for specified liabilities, which may include liabilities under the Securities Act of 1933, as amended.
Our charter and bylaws provide for indemnification and advancement of expenses to our directors and officers to the fullest extent permitted by the DGCL. We will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the Company) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. Our charter and bylaws provide that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the Company to procure a judgment in the Company’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Company’s best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Company against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances. The limitation of liability and indemnification provisions in our charter and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek non-monetary relief such as injunction or rescission in the event of a breach of a director’s duty of care. These provisions will not alter the liability of directors under federal securities laws.
We have entered into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement provides, among other things, for indemnification to the fullest extent permitted by law and our charter and bylaws any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our charter and bylaws.
We maintain a general liability insurance policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as our directors or officers.
Item 16. Exhibits
|
Exhibit Number
|
|
|
Description
|
|
|
1.1*
|
|
|
Form of Underwriting Agreement.
|
|
|
1.2
|
|
|
Open Market Sale AgreementSM, dated as of May 10, 2021, by and between BioXcel Therapeutics, Inc. and Jefferies LLC, as amended on November 1, 2023.
|
|
|
3.1
|
|
|
Amended and Restated Certificate of Incorporation of BioXcel Therapeutics, Inc. (incorporated by reference to the Company’s 10-Q filed on August 10, 2021) (File No. 001-38410).
|
|
|
3.2
|
|
|
|
|
|
4.1
|
|
|
|
|
|
4.2*
|
|
|
Form of Specimen Certificate Representing Preferred Stock.
|
|
|
4.3
|
|
|
|
|
|
4.4*
|
|
|
Form of Note.
|
|
|
4.5*
|
|
|
Form of Warrant.
|
|
|
4.6*
|
|
|
Form of Warrant Agreement.
|
|
|
4.7*
|
|
|
Form of Unit Agreement.
|
|
|
5.1
|
|
|
|
|
|
23.1
|
|
|
|
|
|
23.2
|
|
|
|
|
|
24.1
|
|
|
|
|
|
25.1**
|
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Debt Trustee, (to be filed prior to any issuance of Debt Securities).
|
|
|
107*
|
|
|
|
|
*
To be filed by amendment or incorporated by reference in connection with the offering of the securities.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939.
Item 17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a 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:
(A)
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
(B)
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 communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the “Act”) in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New Haven, Connecticut, on 1st day of November, 2023.
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BIOXCEL THERAPEUTICS, INC.
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By:
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/s/ VIMAL MEHTA PH.D.
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Vimal Mehta, Ph.D.
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Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors of the registrant hereby severally constitutes and appoints Vimal Mehta, Ph.D. and Richard Steinhart, and each of them singly (with full power to each of them to act alone), as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, and in any and all capacities, to file and sign any and all amendments, including post-effective amendments, to this registration statement and any other registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of Delaware and applicable federal securities laws.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
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SIGNATURE
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TITLE
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DATE
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/s/ Vimal Mehta, Ph.D.
Vimal Mehta, Ph.D.
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Chief Executive Officer, President, Secretary, and Director (principal executive officer)
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November 1, 2023
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/s/ Richard Steinhart
Richard Steinhart
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Chief Financial Officer
(principal financial officer and principal accounting officer)
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November 1, 2023
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/s/ Peter Mueller, Ph.D.
Peter Mueller, Ph.D.
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Chairman of the Board of Directors
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November 1, 2023
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/s/ June Bray
June Bray
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Director
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November 1, 2023
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/s/ Sandeep Laumas, M.D.
Sandeep Laumas, M.D.
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Director
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November 1, 2023
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/s/ Michael P. Miller
Michael P. Miller
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Director
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November 1, 2023
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/s/ Michal Votruba, M.D.
Michal Votruba, M.D., Ph.D.
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Director
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November 1, 2023
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Exhibit 1.2
OPEN
MARKET SALE AGREEMENTSM
May 10,
2021
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
BioXcel
Therapeutics, Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated
herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal (the “Agent”),
shares of the Company’s common stock, par value $0.001 per share (the “Common Shares”), having an aggregate
offering price of up to the Maximum Program Amount (as defined herein) on the terms set forth in this agreement (this “Agreement”).
Section
1. DEFINITIONS
(a)
Certain Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall
have the following respective meanings:
“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first- mentioned Person. The term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
“Agency
Period” means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date
on which the Agent shall have placed the Maximum Program Amount pursuant to this Agreement, (y) the date this Agreement is terminated
pursuant to Section 7 and (z) the third anniversary of the date
of this Agreement.
“Agent”
has the meaning set forth in the introductory paragraph of this Agreement.
“Agreement”
has the meaning set forth in the introductory paragraph of this Agreement.
“Base
Prospectus” has the meaning set forth in Section 2(a).
“Blackout
Period” has the meaning set forth in Section 3(b)(viii).
“Code”
has the meaning set forth in Section 2(ff).
“Commission”
means the U.S. Securities and Exchange Commission.
SM
“Open Market Sale Agreement” is a service mark of Jefferies LLC
“Common Shares”
has the meaning set forth in the introductory paragraph of this Agreement.
“Company”
has the meaning set forth in the introductory paragraph of this Agreement.
“Default”
has the meaning set forth in Section 2(r).
“EDGAR”
has the meaning set forth in Section 2(b).
“Emerging
Growth Company” has the meaning set forth in Section 2(f).
“Environmental
Laws” has the meaning set forth in Section 2(ee).
“ERISA”
has the meaning set forth in Section 2(ff).
“ERISA
Affiliate” has the meaning set forth in Section 2(ff).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Existing
Instrument” has the meaning set forth in Section 2(r).
“FCPA”
has the meaning set forth in Section 2(jj).
“FDA”
has the meaning set forth in Section 2(u).
“FDCA”
has the meaning set forth in Section 2(ii).
“FINRA”
has the meaning set forth in Section 2(bb).
“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable
Selling Period, which may be adjusted by the Company at any time during the Selling Period by delivering written notice of such
change to the Agent and which in no event shall be less than $1.00 without the prior written consent of the Agent, which may be
withheld in the Agent’s sole discretion.
“Free
Writing Prospectus” has the meaning set forth in Section 4(e).
“Issuance
Amount” means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.
“Issuance
Notice” means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached
hereto as Exhibit A that is executed by its Chief Executive Officer, President
or Chief Financial Officer.
“Issuance
Notice Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered
pursuant to Section 3(b)(i).
“Issuance
Price” means the Sales Price less the Selling Commission.
“Intellectual
Property Rights” has the meaning set forth in Section 2(s).
“Investment
Company Act” has the meaning set forth in Section 2(x).
“Material
Adverse Change” has the meaning set forth in Section 2(l).
“Material
Adverse Effect” has the meaning set forth in Section 2(o).
“Maximum
Program Amount” means Common Shares with an aggregate Sales Price of the lesser of (1) $100,000,000, (2) the aggregate
amount of Shares registered under the Registration Statement and (3) the number or dollar amount of Common Shares permitted to
be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable).
“Money
Laundering Laws” has the meaning set forth in Section 2(kk).
“OFAC”
has the meaning set forth in Section 2(kk).
“Original
Registration Statement” has the meaning set forth in Section 2(a).
“Other Offering
Amendment” means an amendment or supplement to the Registration Statement or Prospectus relating solely to the issuance
or offering of securities other than the Common Shares.
“Permits”
has the meaning set forth in Section 2(u).
“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental authority or other entity of any kind.
“Principal
Market” means the Nasdaq Capital Market or such other national securities exchange on which the Common Shares, including
any Shares, are then listed.
“Prospectus”
has the meaning set forth in Section 2(a).
“Registration
Statement” has the meaning set forth in Section 2(a).
“Regulation
M” has the meaning set forth in Section 2(z).
“Regulatory
Agencies” has the meaning set forth in Section 2(u).
“Related
Judgment” has the meaning set forth in Section 8(g).
“Related
Proceedings” has the meaning set forth in Section 8(g).
“Representation
Date” has the meaning set forth in the introductory paragraph of Section 2.
“Rule
102” has the meaning set forth in Section 4(u).
“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.
“Sanctions”
has the meaning set forth in Section 2(mm).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Selling
Commission” means three percent (3.0%) of the gross proceeds for any Shares sold pursuant to this Agreement.
“Selling
Period” means the period of one (1) to twenty (20) consecutive Trading Days (as determined by the Company in the Company’s
sole discretion and specified in the applicable Issuance Notice) including the Trading Day on which an Issuance Notice is delivered
pursuant to Section 3(b)(i), if such notice is delivered prior to 3:00 p.m. (New York City time) and otherwise,
following the Trading Day on which an Issuance Notice is delivered pursuant to Section 3(b)(i).
“Settlement
Date” means the second business day following each Trading Day during the Selling Period on which Shares are
sold pursuant to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold on such Trading Day and
the Agent shall deliver to the Company the Issuance Price received on such sales.
“Shares”
means the Company’s Common Shares issued or issuable pursuant to this Agreement.
“Specified
Courts” has the meaning set forth in Section 8(g).
“Time
of Sale” has the meaning set forth in Section 3(b)(v).
“Time
of Sale Information” has the meaning set forth in Section 2(b).
“Trading
Day” means any day on which the Principal Market is open for trading.
“Triggering
Event Date” has the meaning set forth in Section 4(o).
Section
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice
Date, (3) each Settlement Date, (4) each Triggering Event Date with respect to which the Company is obligated to deliver a certificate
pursuant to Section 4(o) and (5) as of each Time of Sale (each of the times referenced above is referred to herein
as a “Representation Date”), except as may be disclosed in the Time of Sale Information (including any documents
incorporated by reference in the Prospectus and any supplements thereto) on or before a Representation Date:
(a) Registration
Statement. The Company has prepared and filed with the Commission a shelf registration statement on
Form S-3 (File No. 333-240118) that contains a base prospectus (the “Base Prospectus”). The
Company may file one or more additional registration statements from time to time that will contain a base prospectus and
related prospectus or prospectus supplement, if applicable, with respect to the Shares. Except where the context otherwise
requires, such registration statement registers the issuance and sale by the Company of the Shares under the Securities Act.
Such registration statement, including any information deemed to be a part thereof pursuant to Rule 430B under the Securities
Act, including all financial statements, exhibits and schedules thereto and all documents incorporated or deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended or
supplemented, is herein referred to as the “Registration Statement,” and the prospectus constituting a
part of such registration statement(s) together with any prospectus supplement filed with the Commission pursuant to Rule
424(b) under the Securities Act relating to a particular issuance of the Shares, including all documents incorporated or
deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as
from time to time amended or supplemented, is referred to herein as the “Prospectus,” except that if any
revised prospectus is provided to the Agent by the Company for use in connection with the
offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the
term “Prospectus” shall refer to such revised prospectus from and after the time it is first provided to
the Agent for such use. The Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement.” As used in this Agreement, the terms “amendment” or
“supplement” when applied to the Registration Statement or the Prospectus shall be deemed to include the filing
by the Company with the Commission of any document under the Exchange Act after the date hereof that is or is deemed to be
incorporated therein by reference.
All references in
this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is or is deemed to be incorporated
by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the
Prospectus, as the case may be, as of any specified date; and all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to mean and include, without limitation, the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference in or otherwise deemed under the Securities Act to
be a part of or included in the Registration Statement or the Prospectus, as the case may be, as of any specified date. The Company’s
obligations under this Agreement to furnish, provide, deliver or make available (and all other references of like import) copies
of any report or statement shall be deemed satisfied if the same is filed with the Commission through EDGAR.
At
the time the Registration Statement was originally declared effective, the Company met the then-applicable requirements for use
of Form S-3 under the Securities Act. During the Agency Period, each time the Company files an annual report on Form
10-K the Company will meet the then-applicable requirements for use of Form S-3 under the Securities Act.
(b) Compliance
with Registration Requirements. The Original Registration Statement has been declared effective by the Commission under
the Securities Act. The Company has complied to the Commission’s satisfaction with all requests of the Commission for
additional or supplemental information with respect to the Registration Statement. No stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission.
The
Prospectus when filed complied in all material respects with the Securities Act and, if filed by electronic transmission pursuant
to the Commission’s Electronic Data Gathering, Analysis, and Retrieval System (“EDGAR”) (except as may
be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Agent for
use in connection with the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became effective and at each Representation Date, complied
and will comply, as the case may be, in all material respects with the Securities Act and did not and will not, as the case may
be, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading (except that the foregoing shall not apply to those parts of the Registration Statement
that constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939). As of the date of this Agreement,
the Prospectus and any Free Writing Prospectus considered together (collectively, the “Time of Sale Information”)
did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The Prospectus, as amended or supplemented, as of
its date and at each Representation Date, did not and will not, as the case may be, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement or any
post-effective amendment thereto, or the Prospectus or any Free Writing Prospectus, or any amendments or supplements thereto,
made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing by the Agent
expressly for use therein, it being understood and agreed that the only such information furnished by the Agent to the Company
consists of the information described in Section 6 below. There are no contracts or other documents required to
be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed
as required. The Registration Statement and the offer and sale of the Shares as contemplated hereby meet the requirements of Rule
415 under the Securities Act and comply in all material respects with said Rule.
(c) Ineligible
Issuer Status. The Company is not an “ineligible issuer” in connection with the offering of the Shares
pursuant to Rules 164, 405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act. Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies
or will comply, as the case may be, in all material respects with the requirements of Rule 433 under the Securities Act,
including timely filing with the Commission or retention where required and legending, and each such Free Writing Prospectus,
as of its issue date and at all subsequent times through the completion of the issuance and sale of the Shares did not, does
not and will not include any information that conflicted, conflicts with or will conflict with the information contained in
the Registration Statement or the Prospectus, as then amended and supplemented, including as amended or supplemented by any
document incorporated by reference therein. Except for the Free Writing Prospectuses, if any, and electronic road shows, if
any, furnished to the Agent before first use, the Company has not prepared, used or referred to, and will not, without the
Agent’s prior consent, prepare, use or refer to, any Free Writing Prospectus.
(d)
Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements
of the Exchange Act, as applicable, and, when read together with the other information in the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(e)
Exchange Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto
complied or will comply at the time of such filing in all material respects with the requirements of the Exchange Act, and, when
read together with the other information in the Prospectus, at the time the Registration Statement and any amendments thereto
become effective and at each Representation Date, as the case may be, will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f)
Emerging Growth Company Status. From the time of filing of the Registration Statement with the Commission through
the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities
Act (an “Emerging Growth Company”).
(g)
Statistical and Market-Related Data. The statistical and market-related data included in the most recent Prospectus
and the financial statements of the Company included in the most recent Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate in all material respects.
(h)
Disclosure Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting.
(a) The
Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange
Act) that complies with the requirements of the Exchange Act and that has been designed by, or under the supervision of, the
Company’s principal executive and principal financial officers, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted
accounting principles in the United States. The Company maintains internal accounting controls sufficient to provide reasonable
assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles in the United States, including, but not limited to, internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s financial
statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its
assets, (iii) access to the Company’s assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for the Company’s assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. As of the date of the most recent balance sheet of the
Company reviewed or audited by BDO USA, LLP or Ernst & Young LLP and the audit committee of the board of directors of the
Company (the “Audit Committee”), there were no material weaknesses in the Company’s internal controls.
(b)
(i) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange
Act), (ii) such disclosure controls and procedures are designed to ensure that material information relating to the Company is
made known to the Company’s principal executive officer and its principal financial officer by others within those entities,
(iii) such disclosure controls and procedures have been evaluated by management of the Company for effectiveness as of the end
of the Company’s most recent fiscal quarter and (iv) such disclosure controls and procedures are effective in all material
respects to perform the functions for which they were established.
(c) Since
the date of the most recent balance sheet of the Company reviewed or audited by BDO USA, LLP or Ernst & Young LLP and the Audit
Committee, (i) the Company has not been advised of or become aware of (A) any significant deficiencies in the design or operation of
internal controls that could adversely affect the ability of the Company to record, process, summarize and report financial data, or
any material weaknesses in internal controls, or (B) any fraud, whether or not material, that involves management or other employees
who have a significant role in the internal controls of the Company; and (ii) there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(d) The
section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations —
Critical Accounting Policies” set forth in the most recent quarterly report on Form 10-Q or annual report on Form 10-K
that is incorporated by reference in the Prospectus accurately and fully describes (i) the accounting policies that the
Company believes are the most important in the portrayal of the Company’s financial condition and results of operations
and that require management’s most difficult, subjective or complex judgments (“Critical Accounting
Policies”); (ii) the judgments and uncertainties affecting the application of Critical Accounting Policies; and
(iii) the likelihood that materially different amounts would be reported under different conditions or using different
assumptions and an explanation thereof.
(i)
The Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(j)
Authorization of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement, will be validly issued, fully paid and nonassessable,
and the issuance and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights
to subscribe for or purchase the Shares.
(k)
No Applicable Registration or Other Similar Rights. There are no contracts, agreements or understandings between
the Company and any person granting such person the right (other than rights that have been waived in writing or otherwise satisfied)
to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the
Company under the Securities Act.
(l)
No Material Adverse Change. Except as otherwise disclosed in the Registration Statement and Prospectus (including
as incorporated by reference into the Registration Statement and the Prospectus), subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business,
of the Company (any such change is called a “Material Adverse Change”); (ii) the Company has not incurred
any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of capital stock or repurchase or redemption by the Company of
any class of capital stock.
(m) Independent
Accountants. BDO USA, LLP, who have expressed their opinion with respect to the financial statements (which term as used
in this Agreement includes the related notes thereto) of the Company filed with the Commission as a part of the Registration
Statement and incorporated by reference in the Prospectus, and Ernst & Young LLP, who the Company has engaged as its independent public accounting for fiscal years beginning with the fiscal
year ending December 31, 2021, are (i) independent public accountants as required by the
Securities Act and the Exchange Act, (ii) in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X and (iii) a registered public accounting firm as defined by the Public Company
Accounting Oversight Board whose registration has not been suspended or revoked and who has not requested such registration
to be withdrawn.
(n)
Preparation of the Financial Statements. The historical financial statements (including the related notes and supporting
schedules) incorporated by reference in the Prospectus comply as to form in all material respects with the requirements of Regulation
S-X under the Securities Act and present fairly the financial condition, results of operations and cash flows of the Company purported
to be shown thereby at the dates and for the periods indicated and have been prepared in conformity with accounting principles
generally accepted in the United States applied on a consistent basis throughout the periods involved. The selected financial
data included in the Prospectus present fairly in all material respects the information shown therein and such data have been
compiled on a basis consistent with that of the financial statements incorporated by reference therein and the books and records
of the Company.
(o)
Incorporation and Good Standing of the Company. The Company has been duly organized, is validly existing
and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly
qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which
its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be
so qualified or in good standing (i) could not, in the aggregate, reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of
the Company taken as a whole or (ii) could not, in the aggregate, impair in any material respect the ability of the Company to
perform its obligations under this Agreement or to consummate any transactions contemplated by this Agreement or the Time of Sale
Information (any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). The Company
has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged. The
Company does not own or control, directly or indirectly, any corporation, association or other entity
(p)
Capitalization and Other Capital Stock Matters. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have been duly authorized and validly issued, are fully
paid and non-assessable, conform in all material respects to the description thereof contained in the Prospectus and were issued
in compliance with federal and state securities laws and not in violation of any preemptive right, resale right, right of first
refusal or similar right. All of the Company’s options, warrants and other rights to purchase or exchange any securities
for shares of the Company’s capital stock have been duly authorized and validly issued, conform to the description thereof
contained in the Prospectus and were issued in compliance with federal and state securities laws. The description of the Company’s
stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth
in the Prospectus accurately and fairly presents the information required to be shown with respect to such plans, arrangements,
options and rights.
(q) Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed on the
Nasdaq Capital Market, and the Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Shares under the Exchange Act or delisting the Common Shares from the Nasdaq
Capital Market, nor has the Company received any notification that the Commission or the Nasdaq Capital Market is
contemplating terminating such registration or listing.
(r) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. The Company is not in
violation of its charter or bylaws or in default (or, with the giving of notice or lapse of time, would be in default) (“Default”)
under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company
is a party or by which it may be bound (including, without limitation, any credit agreement, indenture, pledge agreement, security
agreement or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness of the Company), or
to which any of the property or assets of the Company is subject (each, an “Existing Instrument”), except for
such Defaults as would not, individually or in the aggregate, result in a Material Adverse Effect. The Company’s execution,
delivery and performance of this Agreement, consummation of the transactions contemplated hereby and by the Prospectus and the
issuance and sale of the Shares (i) have been duly authorized by all necessary corporate action and will not result in any
violation of the provisions of the charter or bylaws of the Company, (ii) will not conflict with or constitute a breach of,
or Default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result in any
violation of any law, administrative regulation or administrative or court decree applicable to the Company. No consent, approval,
authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been obtained or made by the Company and are in full force and
effect under the Securities Act, applicable state securities or blue sky laws and from FINRA.
(s)
No Material Actions or Proceedings. There are no legal or governmental proceedings pending to which the Company
is a party or of which any property or assets of the Company is the subject that could, in the aggregate, reasonably be expected
to result in a Material Adverse Effect; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others.
(t) Intellectual
Property Rights. To the Company’s knowledge, the Company owns or possesses, or can acquire on reasonable terms,
adequate rights to use all patent applications, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, know-how, software, systems and technology (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, “Intellectual
Property Rights”) necessary for or material to the conduct of its business now conducted or proposed in the
Registration Statement or the Prospectus to be conducted, and has no reason to believe that the conduct of its business will
conflict with, and has not received any notice of any claim of conflict with, any such rights of others. The expected
expiration of any such Intellectual Property Rights would not, individually or in the aggregate, result in a Material Adverse
Effect. To the knowledge of the Company, none of the Intellectual Property Rights owned by the Company are invalid or
unenforceable, in whole or in part, and the Company is unaware of any facts that would form a reasonable basis for such a
determination. To the knowledge of the Company, there are no unreleased liens or security interests which have been filed
against any of the Intellectual Property Rights owned by or licensed to the Company. Except as disclosed in the Registration
Statement or the Prospectus (i) the Company is not obligated to pay a material royalty, grant a license or provide other
material consideration to any third party in connection with the Intellectual Property Rights owned by or licensed to the
Company; (ii) to the Company’s knowledge, there are no rights of third parties to any of the Intellectual Property
Rights owned by or licensed to the Company, in any field of use, other than the respective licensor to the Company of such
Intellectual Property Rights; (iii) to the Company’s knowledge, there is no material infringement, misappropriation
breach, default or other violation, or the occurrence of any event that with notice or the passage of time would constitute
any of the foregoing, by the Company, or third parties of any of the Intellectual Property Rights owned by or licensed to the
Company; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others (a) challenging the Company’s rights in or to, or the violation of any of the terms of, any of their
Intellectual Property Rights; (b) challenging the validity, enforceability or scope of any such Intellectual Property Rights;
or (c) that alleges the Company infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property
Rights or other proprietary rights of others, and, in each case, the Company is unaware of any facts which would form a
reasonable basis for any such claim; (v) none of the Intellectual Property Rights owned by or licensed to the Company in its
business has been obtained or is being used by the Company in violation of any contractual obligation binding on the Company;
and (vi) to the Company’s knowledge, no employee of the Company is in or has ever been in violation of any term of any
employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation
relates to such employee’s employment with the Company or actions undertaken by the employee while employed with the
Company. To the knowledge of the Company, (1) neither the commercial development nor the sale of any of the proposed products
or processes of the Company, as described in the Registration Statement or the Prospectus infringes, misappropriates or
otherwise violates, or would, upon the commercialization of such proposed products or processes, infringe, misappropriate or
otherwise violate, any Intellectual Property Rights of any third party; and (2) each current and former employee and
consultant of the Company (a) has executed an inventions assignment and confidentiality agreement with the Company, on or
about the respective date of hire, and signed copies of such agreements have been made available to the Agent and its
counsel; and (b) has signed or agreed to assign to the Company any and all Intellectual Property Rights he or she may possess
or may have possessed that are related to the Company’s business, as currently conducted and as proposed to be
conducted, as described in the Registration Statement or the Prospectus. All patent applications owned by or licensed to the
Company or under which the Company has rights have, to the knowledge of the Company, been duly and properly filed and
maintained; to the knowledge of the Company, the parties prosecuting such applications have complied with their duty of
candor and disclosure to the U.S. Patent and Trademark Office (the “USPTO”) in connection with such
applications; and the Company is not aware of any facts required to be disclosed to the USPTO that were not disclosed to the
USPTO and which would preclude the grant of a patent in connection with any such application or could form the basis of a
finding of invalidity with respect to any patents that may be issued with respect to such applications.
(u) All Necessary Permits, etc. The Company possesses such permits, certificates licenses, franchises, clearances, registrations,
exemptions, certificates of need and other approvals or authorizations of governmental or regulatory authorities as are necessary
under applicable law to own their properties and conduct their businesses in the manner described in the most recent Prospectus
(collectively, “Permits”), including without limitation, all such Permits required by the United States Food
and Drug Administration (“FDA”) or any component thereof and/or by any other U.S., state, local or foreign
government or drug regulatory agency (collectively, the “Regulatory Agencies”), except where failure to so
possess would not, in the aggregate, reasonably be expected to result in a Material Adverse Effect. All of the Permits are valid
and in full force and effect, except when the invalidity of such Permits or the failure of such governmental licenses to be in
full force and effect would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has fulfilled
and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such
Permits, except for any of the foregoing that could not reasonably be expected to result in a Material Adverse Effect. The Company
has not received notice of proceedings relating to any revocation or modification of any such Permits or has any reason to believe
that any such Permits will not be renewed in the ordinary course.
(v) Title
to Properties. The Company has good and marketable title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects, except such liens,
encumbrances and defects as are described in the most recent Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company. All assets
held under lease by the Company are held by them under valid, subsisting and enforceable leases, with such exceptions as do not
materially interfere with the use made and proposed to be made of such assets by the Company.
(w)
Tax Law Compliance. The Company has filed all federal, state, local and foreign tax returns required to be filed
through the date hereof, subject to permitted extensions, and have paid all taxes due, and no tax deficiency has been determined
adversely to the Company, nor does the Company have any knowledge of any tax deficiencies that have been, or could reasonably
be expected to be asserted against the Company that could, in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section
2(n) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability
of the Company has not been finally determined, except to the extent of any inadequacy that would not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
(x)
Company Not an “Investment Company.” The Company is not, and after receipt of payment for the Shares
or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Prospectus, will not
be, an “investment company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the rules and
regulations of the Commission thereunder.
(y) Insurance. Except at would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, the
Company carries, or is covered by, insurance from insurers of recognized financial responsibility in such amounts and covering
such risks as is adequate for the conduct of its business and the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries. All policies of insurance of the Company are in full force and
effect; the Company is in compliance with the terms of such policies in all material respects; the Company has not received notice
from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made
in order to continue such insurance; there are no claims by the Company under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause; and the Company has no reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that could not reasonably be expected to result in a Material
Adverse Effect.
(z) No Price Stabilization or Manipulation; Compliance with Regulation M. The Company has not taken, directly or indirectly,
any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of
the Common Shares or any other “reference security” (as defined in Rule 100 of Regulation M under the 1934
Act (“Regulation M”)) whether to facilitate the sale or resale of the Shares or otherwise, and has taken no
action which would directly or indirectly violate Regulation M. The Company acknowledges that the Agent may engage in passive
market making transactions in the Shares on the Nasdaq Capital Market in accordance with Regulation M. The Common Shares are “actively
traded securities” (as defined in Regulation M).
(aa)
Related Party Transactions. No relationship, direct or indirect, exists between or among the Company, on the one
hand, and the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, that is required to
be described in the Prospectus which is not so described.
(bb)
FINRA Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its officers
and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection
with letters, filings or other supplemental information provided to Financial Industry Regulatory Authority, Inc. (“FINRA”)
pursuant to FINRA Rules 5110, 5121 and 5190 is true, complete and correct. Neither the Company nor any of its Affiliates directly,
or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or is a person
associated with any member firm of FINRA.
(cc)
No Unlawful Contributions or Other Payments. Except as otherwise disclosed in the Prospectus, neither the Company
nor, to the Company’s knowledge, any employee or agent of the Company, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation of any law or of the character required to be
disclosed in the Registration Statement and the Prospectus.
(dd)
Employee Relations. No labor disturbance by or dispute with the employees of the Company exists or, to the knowledge
of the Company, is imminent that could reasonably be expected to result in a Material Adverse Effect.
(ee)
Compliance with Environmental Laws. The Company (i) is, and at all times prior hereto was, in compliance with all
laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental authority,
including without limitation any international, foreign, national, state, provincial, regional, or local authority, relating to
pollution, the protection of human health or safety, the environment, or natural resources, or to use, handling, storage, manufacturing,
transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”) applicable to such entity, which compliance includes, without limitation, obtaining,
maintaining and complying with all permits and authorizations and approvals required by Environmental Laws to conduct their respective
businesses, and (ii) has not received notice or otherwise have knowledge of any actual or alleged violation of Environmental Laws,
or of any actual or potential liability for or other obligation concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except in the case of clause (i) or (ii) where such non-compliance, violation,
liability, or other obligation could not, in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except
as described in the Prospectus, (x) there are no proceedings that are pending, or known to be contemplated, against the Company
under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is
reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company is not aware of any issues regarding
compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities or other obligations
under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably
be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company, and (z) the
Company does not anticipate material capital expenditures relating to Environmental Laws.
(ff) ERISA
Compliance. (i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement
Security Act of 1974, as amended (“ERISA”)) for which the Company or any member of its
“Controlled Group” (defined as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would
have any liability (each a “Plan”) has been maintained in compliance with its terms and with the
requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each
Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no Plan is or is reasonably
expected to be “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA)
(C) there has been no filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan or the receipt by the Company or any of its
ERISA Affiliates from the Pension Benefit Guaranty Corporation or the plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (D) no conditions contained in
Section 303(k)(1)(A) of ERISA for imposition of a lien shall have been met with respect to any Plan and
(E) neither the Company or any member of its Controlled Group has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty
Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”,
within the meaning of Section 4001(c)(3) of ERISA) (“Multiemployer Plan”); (iv) no
Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), in
“reorganization” (within the meaning of Section 4241 of ERISA), or in “endangered” or
“critical” status (within the meaning of Section 432 of the Code or Section 304 of ERISA);
(v) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing
has occurred, whether by action or by failure to act, which would cause the loss of such qualification; and (vi) there
is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan.
(gg)
Brokers. The Company is not a party to any contract, agreement or understanding with any person (other than this
Agreement) that would give rise to a valid claim against the Company or the Agent for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the Shares.
(hh)
No Outstanding Loans or Other Extensions of Credit. Since the adoption of Section 13(k) of the Exchange Act, the
Company has not extended or maintained credit, arranged for the extension of credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions
of credit as are expressly permitted by Section 13(k) of the Exchange Act.
(ii) Compliance
with Laws. Except as otherwise disclosed in the Prospectus, based on the Company’s reasonable belief, the Company:
(A) has been in compliance in all material respects with all applicable healthcare laws, rules and regulations, including,
without limitation, (i) the Federal Food, Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.) (the
“FDCA”) and the regulations promulgated thereunder (ii) within the last five (5) years has not received
any Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence or notice from any
regulatory agency or any other governmental authority alleging or asserting noncompliance with any applicable healthcare laws
or the terms of any Permit, except in each case as would not, individually or in the aggregate, result in a Material Adverse
Effect; (B) has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from any governmental authority or third party alleging that any product operation or activity is in
violation of any applicable healthcare laws or Permit and have no knowledge that any such governmental authority or third
party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding, except in each case
as would not, individually or in the aggregate, result in a Material Adverse Effect; (C) (a) has filed, obtained, maintained
or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
as required by any applicable healthcare laws or Permits, (b) except as would not, individually or in the aggregate, result
in a Material Adverse Effect, all such reports, documents, forms, notices, applications, records, claims, submissions and
supplements or amendments were complete and correct and not misleading on the date filed (or were corrected or supplemented
by a subsequent submission), and (c) the Company is not aware of any reasonable basis for any material liability with respect
to such filings; and (D) has not, and to the knowledge of the Company, the Company’s officers, employees and agents
have not, made any untrue statement of a material fact or fraudulent statement to any governmental authority or failed to
disclose a material fact required to be disclosed to any governmental authority.
(jj)
Foreign Corrupt Practices Act. The Company, nor, to the knowledge of the Company, after due inquiry, any director,
officer, agent, employee or other person associated with or acting on behalf of the Company, has in the course of its actions
for, or on behalf of, the Company: (i) made any unlawful contribution, gift, or other unlawful expense relating to political activity;
(ii) made any direct or indirect bribe, kickback, rebate, payoff, influence payment, or otherwise unlawfully provided anything
of value, to any “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (collectively,
the “FCPA”)) or domestic government official; or (iii) violated or is in violation of any provision of the
FCPA, the Bribery Act 2010 of the United Kingdom, as amended (the “Bribery Act 2010”), or any other applicable
anti-bribery statute or regulation. The Company and, to the knowledge of the Company, the Company’s affiliates, have conducted
their respective businesses in compliance with the FCPA, Bribery Act 2010, and all other applicable anti-bribery statutes and
regulations, and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to
ensure, continued compliance therewith.
(kk)
Money Laundering Laws. The operations of the Company are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related
or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(ll) Clinical
Studies. The descriptions of and information regarding the studies, tests and trials, and the data and results derived
therefrom, contained in the Registration Statement or the Prospectus are accurate and complete in all material respects and
the Company, after due inquiry, are not aware of any other studies, tests, trials, presentations, publications or other
information relating to the Company’s products that are not described in the Registration Statement or the Prospectus
and that would reasonably call into question the validity, completeness, or accuracy of any study, test, trial, results or
data described in the Registration Statement or the Prospectus when viewed in the context in which such studies, tests,
trials results, or data are described therein. The studies, tests and trials conducted by or on behalf of or sponsored by the
Company or in which the Company or its product candidates have participated were and, if still pending, are being conducted
in all material respect in accordance with standard medical and scientific research procedures and all applicable laws,
including, but not limited to, the FDCA and its applicable implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58 and
312. No investigational new drug application filed by or on behalf of the Company with the FDA has been terminated or
suspended by the FDA, and neither the FDA nor any applicable foreign regulatory agency has commenced, or, to the knowledge of
the Company, threatened to initiate, any action to place a clinical hold order on, or otherwise terminate, delay or suspend,
any proposed or ongoing clinical investigation conducted or proposed to be conducted by or on behalf of the Company.
(mm)
OFAC. Neither the Company nor, to the knowledge of the Company, after due inquiry, any director, officer, agent,
employee or affiliate of the Company is: (i) currently subject to or the target of any sanctions administered or enforced by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State, the
United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”); or (ii) located, organized or resident in a country or territory that is the subject or target
of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and Crimea); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any joint venture
partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory,
that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including
any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Company
has not knowingly engaged in for the past five years, is not now knowingly engaged in, and will not engage in, any dealings or
transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction, is
or was the subject or target of Sanctions.
(nn)
Sarbanes-Oxley. There is and has been no failure on the part of the Company and any of the Company’s directors
or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith applicable to the Company or its directors or officers.
(oo) Cybersecurity. (i)
Other than as disclosed in the Prospectus, there has been no security breach or incident, unauthorized access or disclosure,
or other compromise of or relating to the Company’s information technology and computer systems, networks, hardware,
software, data and databases (including the data and information of its customers, employees, suppliers, vendors and any
third party data maintained, processed or stored by the Company, and any such data processed or stored by third parties on
behalf of the Company), equipment or technology (collectively, “IT Systems and Data”), except for those
that (A) have been remedied without material cost or liability or the duty to notify any other person and (B) would not,
individually or in the aggregate, result in a Material Adverse Effect; (ii) the Company has not been notified of, and has no
knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure
or other compromise to its IT Systems and Data; and (iii) the Company has implemented commercially reasonable controls,
policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy
and security of its IT Systems and Data consistent with industry standards and practices, or as required by applicable
regulatory standards. The Company is presently in material compliance with all internal and external privacy policies,
contractual obligations, applicable laws or statutes and all judgments, orders, rules and regulations of any court or
arbitrator or governmental or regulatory authority, internal policies and contractual obligations, in each case relating to
the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification. There is no pending or, to the knowledge of the Company, threatened action, suit or
proceeding by or before any court, arbitrator or governmental or regulatory authority alleging non-compliance with the
foregoing.
Any certificate signed by any officer of
the Company and delivered to the Agent or counsel for the Agent in connection with the offering of the Shares pursuant to this
Agreement shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby on the date
of such certificate.
The
Company acknowledges that the Agent and, for purposes of the opinions to be delivered pursuant to Section 4(o) hereof,
counsel to the Company and counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations
and hereby consents to such reliance.
Section
3. ISSUANCE AND SALE OF COMMON SHARES
(a)
(i) Sale of Securities. On the basis of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell
Shares through the Agent, acting as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate
Sales Price of up to the Maximum Program Amount, based on and in accordance with Issuance Notices as the Company may deliver,
during the Agency Period.
(b)
Mechanics of Issuances.
(i)
Issuance Notice. Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period
on which the conditions set forth in Section 5 shall have been satisfied, the Company may exercise its right to request
an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however, that (A) in no event may the Company
deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price of the requested Issuance Amount, plus
(y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected pursuant to this Agreement, would
exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the Selling Period for any previous Issuance
Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered on the Trading Day that it is received
by e-mail to the persons so identified in writing by the Agent and confirmed by the Company by telephone (including a voicemail
message to the persons so identified), with the understanding that, with adequate prior written notice, the Agent may modify the
list of such persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice,
the Agent will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares
with respect to which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified
in, the Issuance Notice, unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated
in accordance with the terms of this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance
Notice at any time provided they both agree in writing to any such modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company,
(B) as block transactions or (C) by any other method permitted by law deemed to be an “at the market” offering as
defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or sales made into any
other existing trading market of the Common Shares. Nothing in this Agreement shall be deemed to require either party to agree to
the method of offer and sale specified in the preceding sentence, and (except as specified in clauses (A) and (B) above) the method
of placement of any Shares by the Agent shall be at the Agent’s discretion.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than
the opening of the Trading Day next following the Trading Day on which it has placed Shares hereunder setting forth the number
of shares sold on such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.
(v) Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions
of Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically
transfer the Shares being sold by crediting the Agent or its designee’s account at The Depository Trust Company through
its Deposit/Withdrawal At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form, the Agent will deliver, by wire transfer of immediately available funds, the related Issuance Price in same
day funds delivered to an account designated by the Company prior to the Settlement Date. The Company may sell Shares to the Agent
as principal at a price agreed upon at each relevant time Shares are sold pursuant to this Agreement (each, a “Time of
Sale”).
(vi) Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to
the other party hereto in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and
the Selling Period shall immediately terminate; provided, however, that (A) such suspension and termination shall not affect
or impair either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt of such notice;
(B) if the Company suspends or terminates any sale of Shares after the Agent confirms such sale to the Company, the Company shall
still be obligated to comply with Section 3(b)(v) with respect to such Shares; and (C) if the Company defaults in
its obligation to deliver Shares on a Settlement Date, the Company agrees that it will hold the Agent harmless against any loss,
claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company. The parties hereto acknowledge and agree that, in performing
its obligations under this Agreement, the Agent may borrow Common Shares from stock lenders in the event that the Company has
not delivered Shares to settle sales as required by Section 3(b)(v), and may use the Shares to settle or close out such
borrowings. The Company agrees that no such notice shall be effective against the Agent unless it is made to the persons identified
in writing by the Agent pursuant to Section 3(b)(i).
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be
successful in placing Shares and (B) the Agent will incur no liability or obligation to the Company or any other Person if it
does not sell Shares, and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to
this Agreement, except as otherwise specifically agreed by the Agent and the Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company
shall not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period
in which the Company is in possession of material non-public information. In addition, if the Company wishes to offer or sell
any Shares during any period in which the Company prohibits purchases or sales of Common Shares by its officers or directors (whether
pursuant to its insider trading policy or otherwise) (each such period, a “Blackout Period”), the Company will,
as a condition to the giving or continuation of any Issuance Notice, certify in writing to the Agent that the Company is not in
possession of any material, non-public information, which certification shall be deemed to remain in effect during the applicable
Blackout Period unless withdrawn by the Company.
(c)
Fees. As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date,
the Selling Commission for the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant
to Section 3(b)(vi)) by the Agent deducting the Selling Commission from the applicable Issuance Amount.
(d)
Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of
its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Shares (including all printing and engraving costs), (ii) all fees
and expenses of the registrar and transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Shares, (iv) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), the Prospectus, any Free Writing Prospectus (as defined below) prepared by or on behalf
of, used by, or referred to by the Company, and all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys’ fees and expenses incurred by the Company or the Agent in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part of the Shares for offer and sale under the state
securities or blue sky laws or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing
a “Blue Sky Survey” or memorandum and a “Canadian wrapper,” and any supplements thereto, advising
the Agent of such qualifications, registrations, determinations and exemptions, (vii) the reasonable fees and disbursements of
the Agent’s counsel, including the filing fees incident to, and the reasonable fees and expenses of counsel for the
Agent in connection with, FINRA review, if any, and approval of the Agent’s participation in the offering and distribution
of the Shares, (viii) the costs and expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated
with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives, employees and officers of the Company and of the Agent and
any such consultants, and the cost of any aircraft chartered in connection with the road show and (ix) the fees and expenses
associated with listing the Shares on the Nasdaq Capital Market. The fees and disbursement of the Agent, including but not limited to the fees and disbursement of the Agent's counsel pursuant to Section
3(d)(vi), (vii) and (viii), above shall not exceed (A) $75,000 in connection with the filing of the Prospectus and due upon the execution
of this Agreement and (B) $15,000 in connection with each Triggering Event Date (as defined below) on which the Company is required to
provide a certificate pursuant to Section 4(o).
Section
4. ADDITIONAL COVENANTS
The Company covenants
and agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a)
Exchange Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission
all reports and documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time
periods required by the Exchange Act and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports
on Form 10-K, a summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant
to this Agreement and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement or in
such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”) with
such summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement
pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under the
Securities Act)).
(b)
Securities Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing
(i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the
time and date of any filing of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement
or any amendment or supplement to the Prospectus, any Free Writing Prospectus, (iii) of the time and date that any post-effective
amendment to the Registration Statement or any Rule 462(b) Registration Statement becomes effective and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto,
any Rule 462(b) Registration Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending
the use of any Free Writing Prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or
quotation the Common Shares from any securities exchange upon which they are listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any
such stop order at any time, the Company will use its reasonable best efforts to obtain the lifting of such order as soon as practicable.
Additionally, the Company agrees that it shall comply with the provisions of Rule 424(b) and Rule 433, as applicable, under the
Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) or Rule
433 were received in a timely manner by the Commission.
(c)
Amendments and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel
for the Agent it is otherwise necessary to amend or supplement the Prospectus to comply with applicable law, including the Securities
Act, the Company agrees (subject to Section 3(b) and Section 3(c)) to promptly prepare, file with the Commission
and furnish at its own expense to the Agent, amendments or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law including the Securities Act.
Neither the Agent’s consent to, or delivery of, any such amendment or supplement shall constitute a waiver of any of the
Company’s obligations under Section 3(b) or Section 3(c).
(d) Agent’s
Review of Proposed Amendments and Supplements. Prior to effecting any amendment or supplement to the Registration
Statement (including any registration statement filed under Rule 462(b) under the Securities Act) or the Prospectus
(excluding any amendment or supplement through incorporation of any report filed under the Exchange Act) that affects the
offer and sale of the Shares as contemplated by this Agreement, the Company shall furnish to the Agent for review, a
reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment or
supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Agent shall have
reasonably objected in writing, unless in the judgment of counsel to the Company, such filing is required by law, and to file
with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to
be filed pursuant to such Rule.
(e)
Use of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed,
or will prepare, use, refer to or distribute, without the other party’s prior written consent, any “written communication”
that constitutes a “free writing prospectus” as such terms are defined
in Rule 405 under the Securities Act with
respect to the offering contemplated by this Agreement (any such free writing prospectus being referred to herein as a
“Free Writing Prospectus”).
(f) Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the
proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement
thereto to be prepared by or on behalf of, used by, or referred to by the Company and the Company shall not file, use or
refer to any proposed free writing prospectus or any amendment or supplement thereto without the Agent’s consent. The
Company shall furnish to the Agent, without charge, as many copies of any free writing prospectus prepared by or on behalf
of, or used by the Company, as the Agent may reasonably request. If at any time when a prospectus is required by the
Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the
Shares (but in any event if at any time through and including the date of this Agreement) there occurred or occurs an event
or development as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the
Company conflicted or would conflict with the information contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company
shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict or so that the
statements in such free writing prospectus as so amended or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at such subsequent time, not misleading, as the case may be; provided, however, that prior to amending or
supplementing any such free writing prospectus, the Company shall furnish to the Agent for review, a reasonable amount of
time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free writing
prospectus and the Company shall not file, use or refer to any such amended or supplemented free writing prospectus without
the Agent’s consent.
(g)
Filing of Agent Free Writing Prospectuses. The Company shall not to take any action that would result in the Agent
or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of the Agent that the Agent otherwise would not have been required to file thereunder.
(h)
Copies of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus
is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection
with sales of the Shares, the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration
Statement and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in
which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such
quantities as the Agent may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities
Act or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for
any Selling Period in connection with the offering or sale of the Shares and if at such time any event has occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Securities Act or the Exchange Act, to notify the Agent and to request that the Agent suspend offers to sell
Shares (and, if so notified, the Agent shall cease such offers as soon as practicable); and if the Company decides to amend or
supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise the Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus in respect of
transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.
(i) Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares
for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial
securities laws of those jurisdictions designated by the Agent, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for the distribution of the Shares. The Company
shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Agent promptly of the suspension of the qualification or registration of (or any
such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal thereof as soon as practicable.
(j)
Earnings Statement. As soon as practicable, the Company will make generally available to its security holders and
to the Agent an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 under the Securities Act.
(k)
Listing; Reservation of Shares. (a) The Company will maintain the listing of the Shares on the Nasdaq Capital Market
and (b) the Company will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling
the Company to satisfy its obligations pursuant to any outstanding Issuance Notice under this Agreement.
(l)
Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(m)
Due Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due
diligence review conducted by the Agent in connection with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate officers, during normal business hours and at the Company’s
principal offices, as the Agent may reasonably request from time to time.
(n)
Representations and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery
of Shares on a Settlement Date shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of
the Company contained in or made pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of
such Settlement Date, as the case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus
(including any documents incorporated by reference therein and any supplements thereto), and (ii) an undertaking that the
Company will advise the Agent if any of such representations and warranties will not be true and correct as of the Settlement
Date for the Shares relating to such Issuance Notice, as though made at and as of each such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating
to such Shares).
(o)
Deliverables at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first
Issuance Notice and, during the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)),
by means of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into
the Registration Statement or Prospectus;
(B) the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A or Form
10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K or
quarterly report on Form 10-Q), in each case, of the Company; or
(C) the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than
information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any
such event, a “Triggering Event Date”), the Company shall furnish the Agent (but in the case of clause (C)
above only if the Agent reasonably determines that the information contained in such current report on Form 8-K of the Company
is material) with a certificate as of the Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel,
substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented, (A) confirming that the representations and warranties of the Company
contained in this Agreement are true and correct, (B) that the Company has performed all of its obligations hereunder to be performed
on or prior to the date of such certificate and as to the matters set forth in Section 5 hereof, and (C) containing
any other certification that the Agent shall reasonably request. The requirement to provide a certificate under this Section
4(o) shall be automatically waived with no further action of the Agent or Company for any Triggering Event Date occurring
at a time when no Issuance Notice is pending or a suspension is in effect, which automatic waiver shall continue until the earlier
to occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter shall
be considered a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the
Agent with a certificate under this Section 4(o), then before the Company delivers the instructions for the sale of Shares
or the Agent sells any Shares pursuant to such instructions, the Company shall provide the Agent with a certificate in conformity
with this Section 4(o) dated as of the date that the instructions for the sale of Shares are issued.
(p) Legal
Opinions. On or prior to the date of the first Issuance Notice and on each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o)(A) or Section 4(o)(B) for which no
waiver is applicable and excluding the date of this Agreement, the Agent shall have received (i) a negative assurances letter
and the written legal opinion of Latham & Watkins LLP, counsel to the Company, and (ii) a negative assurances letter and
the written legal opinion of Cooley LLP, patent counsel to the Company, each dated the date of delivery, in form and
substance reasonably satisfactory to Agent and its counsel, substantially similar to the form previously provided to the
Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or
supplemented; provided, however, that the Company shall be required to furnish no more than one opinion and negative
assurance letter of each of counsel to the Company and patent counsel to the Company per filing of an annual report on Form
10-K or quarterly report on Form 10-Q. In lieu of such opinions for subsequent periodic filings, in the discretion of the
Agent, the Company may furnish a reliance letter from such counsel to the Agent, permitting the Agent to rely on a previously
delivered opinion letter, modified as appropriate for any passage of time or Triggering Event Date (except that statements in
such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as
of such Triggering Event Date). The Agent shall also have received a negative assurances letter from Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Agent, dated as of the date of delivery, in form as substance reasonable satisfactory to Agent,
and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling
them to give such opinion.
(q) Comfort
Letter. On or prior to the date of the first Issuance Notice and on each Triggering Event Date with respect to which the Company
is obligated to deliver a certificate pursuant to Section 4(o)(A) or Section 4(o)(B) for which no waiver is applicable
and excluding the date of this Agreement, the Company shall cause BDO USA, LLP and/or Ernst & Young LLP, the independent
registered public accounting firm who has audited or will audit the financial statements included or incorporated by reference in
the Registration Statement, to furnish the Agent a comfort letter, dated the date of delivery, in form and substance reasonably
satisfactory to the Agent and its counsel substantially similar to the form previously provided to the Agent and its counsel;
provided, however, that any such comfort letter will only be required on the Triggering Event Date specified to the extent that it
contains financial statements filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by
reference into a Prospectus. If requested by the Agent, the Company shall also cause a comfort letter to be furnished to the Agent
within ten (10) Trading Days of the date of occurrence of any material transaction or event requiring the filing of a current report
on Form 8-K containing material amended financial information of the Company, including the restatement of the Company’s
financial statements. The Company shall be required to furnish no more than one comfort letter hereunder per calendar quarter.
(r) Secretary’s
Certificate. On or prior to the date of the first Issuance Notice and on each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o)(A) or Section 4(o)(B) for which no
waiver is applicable and excluding the date of this Agreement, the Company shall furnish to the Agent a certificate executed
by the Secretary of the Company, signing in such capacity, dated the date of delivery (i) certifying that attached thereto
are true and complete copies of the resolutions duly adopted by the Board of Directors of the Company authorizing the
execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without
limitation, the issuance of the Shares pursuant to this Agreement), which authorization shall be in full force and effect on
and as of the date of such certificate, (ii) certifying and attesting to the office, incumbency, due authority and specimen
signatures of each Person who executed this Agreement for or on behalf of the
Company, and (iii) containing any other certification that the Agent shall reasonably request.
(s)
Agent’s Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with
applicable law, in the Common Shares for the Agent’s own account and for the account of its clients at the same time as
sales of the Shares occur pursuant to this Agreement.
(t)
Investment Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from
its sale of the Shares in such a manner as would require the Company to register as an investment company under the Investment
Company Act.
(u)
Market Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the Shares or any other reference security, whether
to facilitate the sale or resale of the Shares or otherwise, and the Company will, and shall use commercially reasonable efforts
to cause each of its affiliates to, comply with all applicable provisions of Regulation M. If the limitations of Rule 102 of Regulation
M (“Rule 102”) do not apply with respect to the Shares or any other reference security pursuant to any exception
set forth in Section (d) of Rule 102, then promptly upon notice from the Agent (or, if later, at the time stated in the notice),
the Company will, and shall use commercially reasonable efforts to cause each of its affiliates to, comply with Rule 102 as though
such exception were not available but the other provisions of Rule 102 (as interpreted by the Commission) did apply.
(v) Notice
of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Shares (other than Shares hereunder) or securities
convertible into or exchangeable for Common Shares, warrants or any rights to purchase or acquire Common Shares, during the period
beginning on the third Trading Day immediately prior to the date on which any Issuance Notice is delivered to the Agent hereunder
and ending on the third Trading Day immediately following the earlier of (x) the Settlement Date with respect to Shares sold
pursuant to such Issuance Notice and (y) the suspension by the Company of such Selling Period, and will not, directly or indirectly,
in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any option to
sell or otherwise dispose of any Common Shares (other than the Shares hereunder) or securities convertible into or exchangeable for
Common Shares, warrants or any rights to purchase or acquire Common Shares during the Agency Period; provided, however, that such
restrictions will not apply in connection with the Company’s (i) issuance or sale of Common Shares, options to purchase Common
Shares or Common Shares issuable upon the exercise of options or other equity awards pursuant to any employee or director share
option, incentive or benefit plan, share purchase or ownership plan, long-term incentive plan, dividend reinvestment plan,
inducement award under Nasdaq rules or other compensation plan of the Company, as in effect on the date of this Agreement, (ii)
issuance or sale of Common Shares issuable upon exchange, conversion or redemption of securities or the exercise or vesting of
warrants, options or other equity awards outstanding at the date of this Agreement, (iii) issuance or sale of Common Shares or
securities convertible into or exchangeable for Common Shares, which do not, in the aggregate, exceed five percent (5%) of the
then-outstanding shares of capital stock of the Company, as consideration for mergers, acquisitions, other business combinations,
joint ventures, collaborations or strategic arrangements occurring after the date of this Agreement that are not used for capital
raising purposes, (iv) modification of any outstanding options, warrants of any rights to purchase or acquire Common Shares and (v)
for the avoidance of doubt, non-public discussions or negotiations with respect to any of the foregoing.
(w)
Emerging Growth Company Status. The Company will promptly notify the Agent if the Company ceases to be an Emerging
Growth Company at any time during the term of this Agreement.
Section
5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO SETTLEMENT
The right of the Company to deliver an
Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance Notice, and the obligation
of the Agent to use its commercially reasonable efforts to place Shares during the applicable Selling Period is subject to the
satisfaction, on each Trading Day during the Selling Period, of each of the following conditions:
(a)
Accuracy of the Company’s Representations and Warranties; Performance by the Company. The Company shall have
delivered the certificate required to be delivered pursuant to Section 4(o) on or before the date on which delivery of
such certificate is required pursuant to Section 4(o). The Company shall have performed, satisfied and complied with all
covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at
or prior to such date, including, but not limited to, the covenants contained in Section 4(m), Section 4(p), Section
4(q) and Section 4(r).
(b)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization
having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions
contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or materially
adversely affecting any of the transactions contemplated by this Agreement.
(c)
Material Adverse Changes. Except as disclosed in the Prospectus, (a) there shall not have occurred any Material
Adverse Change that, in the judgment of the Agent, makes it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus; and (b) there shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible
change, in the rating accorded any securities of the Company by any “nationally recognized statistical rating organization”
as such term is defined in Section 3(a)(62) of the Exchange Act.
(d) No
Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common Shares (including without
limitation the Shares) shall not have been suspended by the Commission, the Nasdaq Global Market or FINRA and the Common
Shares (including without limitation the Shares) shall have been approved for listing or quotation on and shall not have been
delisted from the Principal Market. There shall not have occurred (and be continuing in the case of occurrences under
clauses (i) and (ii) below) any of the following: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by the Nasdaq Capital Market, or trading in securities
generally on either the Nasdaq Capital Market shall have been suspended or limited, or minimum or maximum prices shall have
been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium
shall have been declared by any of federal, New York, Delaware or California authorities; or (iii) there shall have
occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the
United States or international financial markets, or any substantial change or development involving a prospective
substantial change in United States’ or international political, financial or economic conditions, as in the judgment
of the Agent is material and adverse and makes it impracticable to market the Shares in the manner and on the terms described
in the Prospectus or to enforce contracts for the sale of securities;
(e)
Documents Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially
reasonable efforts to place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the
Issuance Notice Date of a certificate in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive
Officer, President or Chief Financial Officer of the Company, to the effect
that all conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of such certificate (which
certificate shall not be required if the foregoing representations shall be set forth in the Issuance Notice).
(f)
No Misstatement or Material Omission. Agent shall not have advised the Company that the Registration Statement or
Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable
opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
Section
6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification
of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees, and each person,
if any, who controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which the Agent or such officer, employee or controlling person may become subject,
under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, or the laws or regulations of
foreign jurisdictions where Shares have been offered or sold or at common law or otherwise (including in settlement of any
litigation), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to
Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and to reimburse the Agent and each such officer,
employee and controlling person for any and all documented expenses (including the fees and disbursements of counsel chosen
by the Agent) as such expenses are reasonably incurred by the Agent or such officer, employee or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by
the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), it being understood and agreed that the only such information furnished by the Agent to the
Company consists of the information described in Section 6(b) below. The indemnity
agreement set forth in this Section 6(a) shall be in addition to any liabilities that the Company may otherwise
have.
(b) Indemnification
of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Company or
any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or
state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at
common law or otherwise (including in settlement of any litigation), arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in any Free Writing Prospectus that the Company has used,
referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; but only to the extent arising out of or
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by the Agent expressly for use in the Registration Statement, any such Free
Writing Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such
information furnished by the Agent to the Company consists of the information set forth in the second to last paragraph under the
caption “Plan of Distribution” in the Prospectus, and to reimburse the Company and each such director, officer and
controlling person for any and all documented expenses (including the fees and disbursements of counsel chosen by the Company) as
such expenses are reasonably incurred by the Company or such officer, director or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity
agreement set forth in this Section 6(b) shall be in addition to any liabilities that the Agent or the Company may otherwise
have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 6, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in this Section
6 or to the extent it is not prejudiced as a proximate result of such failure. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 6 for any reasonable and documented legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local
counsel) for the indemnified parties shall be selected by Jefferies (in the case of counsel for the indemnified parties
referred to in Section 6(a) above) or the Company (in the case of counsel for the indemnified parties referred to in Section
6(b) above, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the
indemnifying party, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party
and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 6(c)
hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding.
(e)
Contribution. If the indemnification provided for in this Section 6 is for any reason held to be unavailable
to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Agent, on the other hand,
from the offering of the Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one hand, and the Agent, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Agent, on the other
hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions
as the total gross proceeds from the offering of the Shares (before deducting expenses) received by the Company bear to the total
commissions received by the Agent. The relative fault of the Company, on the one hand, and the Agent, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Agent, on
the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 6(c), any reasonable and documented legal
or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
The provisions set forth in Section 6(c) with respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 6(e); provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under Section 6(c) for purposes of indemnification.
The
Company and the Agent agree that it would not be just and equitable if contribution pursuant to this Section 6(e)
were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations
referred to in this Section 6(e).
Notwithstanding
the provisions of this Section 6(e), the Agent shall not be required to contribute any amount in excess of the
agent fees received by the Agent in connection with the offering contemplated hereby. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6(e), each officer and
employee of the Agent and each person, if any, who controls the Agent within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Agent, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section
7. TERMINATION & SURVIVAL
(a)
Term. Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date
of this Agreement until the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this
Section 7.
(b)
Termination; Survival Following Termination.
(i)
Either party may terminate this Agreement prior to the end of the Agency Period, by giving written notice as required by this
Agreement, upon ten (10) Trading Days' notice to the other party; provided that, (A) if the Company terminates this Agreement after the Agent confirms to the Company any sale of Shares,
the Company shall remain obligated to comply with Section 3(b)(v) with respect to such Shares and (B) Section
2, Section 6, Section 7 and Section 8 shall survive termination of this Agreement. If termination shall
occur prior to the Settlement Date for any sale of Shares, such sale shall nevertheless settle in accordance with the terms of
this Agreement.
(ii)
In addition to the survival provision of Section 7(b)(i), the respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers and of the Agent set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of the Agent or the Company or any
of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement.
Section
8. MISCELLANEOUS
(a) Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions
contemplated hereby as soon as practicable following the date of this Agreement, and may file with the Commission a Current
Report on Form 8-K, with this Agreement attached as an exhibit thereto, describing the material terms of the
transactions contemplated hereby, and the Company shall consult with the Agent prior to making such disclosures, and the
parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosures
that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any press release or like
public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant to the
Exchange Act) related to this Agreement or any of the transactions contemplated hereby without the prior written approval of
the other party hereto, except as may be necessary or appropriate in the reasonable opinion of the party seeking to make
disclosure to comply with the requirements of applicable law or stock exchange rules, including but not limited to the
disclosure required pursuant to Section 4(a) of this Agreement in the Company’s
quarterly reports on Form 10-Q or annual reports on Form 10-K. If any such press release or like public statement is so
required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the
parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is
reasonably satisfactory to all parties hereto.
(b)
No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated
by this Agreement, including the determination of any fees, are arm’s-length commercial transactions between the Company
and the Agent, (ii) when acting as a principal under this Agreement, the Agent is and has been acting solely as a principal is
not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has not
assumed nor will assume an advisory or fiduciary responsibility in favor of the Company with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Company on other
matters) and the Agent does not have any obligation to the Company with respect to the transactions contemplated hereby except
the obligations expressly set forth in this Agreement, (iv) the Agent and its respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company, and (v) the Agent has not provided any legal,
accounting, regulatory or tax advice with respect to the transactions contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(c)
Research Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments
are required to and should be independent from their respective investment banking divisions and are subject to certain regulations
and internal policies, and as such the Agent’s research analysts may hold views and make statements or investment recommendations
and/or publish research reports with respect to the Company or the offering that differ from the views of their respective investment
banking divisions. The Company understands that the Agent is a full service securities firm and as such from time to time, subject
to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
(d)
Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and
confirmed to the parties hereto as follows:
If
to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 619-4437
Attention: General Counsel
with a copy (which shall not
constitute notice) to:
Wilmer Cutler Pickering Hale and Dorr LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Facsimile: (212) 230-8888
Attention: Lisa Firenze, Esq.
If to the Company:
BioXcel
Therapeutics, Inc.
555 Long Wharf Drive
New Haven, CT 06511
Attention: Chief Executive Officer
with a copy (which shall not
constitute notice) to:
Latham & Watkins LLP
John Hancock Tower
200 Clarendon Street
Boston, MA 02116
Attention: Peter N. Handrinos
Any
party hereto may change the address for receipt of communications by giving written notice to the others in accordance with this
Section 8(d).
(e)
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit
of the employees, officers and directors and controlling persons referred to in Section 6, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The term “successors” shall not
include any purchaser of the Shares as such from the Agent merely by reason of such purchase.
(f)
Partial Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of
this Agreement shall not affect the validity or enforceability of any other Article, Section, paragraph or provision hereof. If
any Article, Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
(g) Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of
New York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be
instituted in the federal courts of the United States of America located in the Borough of Manhattan in the City of New York
or the courts of the State of New York in each case located in the Borough of Manhattan in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related
Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or
other proceeding brought in any such court has been brought in an inconvenient forum.
(h)
General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject
matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument, and may be delivered by facsimile transmission or
by electronic delivery of a portable document format (PDF) file. This Agreement may not be amended or modified unless in writing
by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party
whom the condition is meant to benefit. The Article and Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
[Signature Page Immediately Follows]
If the foregoing is
in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon
this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms
|
Very truly yours, |
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BIOXCEL THERAPEUTICS, INC. |
|
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By: |
/s/ Richard Steinhart |
|
|
Name: |
Richard Steinhart |
|
|
Title: |
Senior Vice President and Chief Financial Officer |
The foregoing Agreement is hereby confirmed
and accepted by the Agent in New York, New York as of the date first above written.
JEFFERIES LLC
By: |
/s/ Kevin Sheridan |
|
|
Name: Kevin Sheridan |
|
Title: Joint Global Head of Healthcare Investment Banking |
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale
Agreement between BioXcel Therapeutics, Inc. (the “Company”) and Jefferies LLC (the “Agent”)
dated as of May 10, 2021. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied
as of the date hereof.
Date
of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
_______________________
Issuance Amount (equal to the total Sales Price for such Shares):
$
Number of Days in Selling Period:
First Date of Selling Period:
Last Date of Selling Period:
Settlement Date(s) if other than standard T+2 settlement:
_______________________
Floor Price Limitation (in no event less
than $1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion):
$ ____ per share
Comments:
|
BioXcel Therapeutics, Inc. |
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|
By: |
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|
Name: |
|
|
Title: |
AMENDMENT NO. 1
TO THE SALES AGREEMENT
November 1, 2023
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
This Amendment No. 1
to the sales agreement (this “Amendment No. 1”) is entered into as of the date first written above by BioXcel Therapeutics,
Inc., a Delaware corporation (the “Company”), and Jefferies LLC (the “Agent”), that are parties
to that certain sales agreement, dated May 10, 2021 (the “Sales Agreement”) relating to the offering of up to $100,000,000
of the Company’s Common Shares.
On the date hereof, the
Company will file a Registration Statement on Form S-3 relating to the offering of up to $350,000,000 in securities, including a Prospectus
Supplement relating to the offering of up to $150,000,000 of the Company’s Common Shares (the “November 2023 ATM Prospectus
Supplement”). The November 2023 ATM Prospectus Supplement shall supersede and replace the prospectus supplement filed by the
Company on May 10, 2021, relating to the Common Shares offered pursuant to the Sales Agreement.
This amendment, among
other things, increases the aggregate offering price to $179,212,343, of which $150,000,000 has not been sold as of the date hereof. All
capitalized terms not defined herein shall have the meanings ascribed to them in the Sales Agreement.
The parties, intending
to be legally bound, hereby amend the Sales Agreement as follows:
1.
Section 1(a) of the Sales Agreement is hereby amended as follows:
| a. | By deleting the definition of “Agency Period” in its entirety and replacing it with the following: |
“ “Agency Period”
means the period commencing on the date of the Agreement and expiring on the earliest to occur of (x) the date on which the Agent shall
have placed the Maximum Program Amount pursuant to this Agreement, (y) the date the Agreement is terminated pursuant to Section
7 and (z) the third anniversary of the date of Amendment No. 1.”
| b. | By deleting the definition of “Maximum Program Amount” in its entirety and replacing it with the following: |
“ “Maximum
Program Amount” means Common Shares with an aggregate Sales Price of the lesser of (1) $150,000,000 (which does not
include $29,212,343 of Common Shares previously sold pursuant to the Sales Agreement prior to the date of this Amendment No. 1), (2)
the aggregate amount of Shares registered under the Registration Statement and (3) the number or dollar amount of Common Shares
permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable).”
2.
Section 3(d) of the Sales Agreement is hereby amended by deleting the last sentence of such section in its entirety and replacing
it with the following:
“The fees and disbursement of
the Agent, including but not limited to the fees and disbursement of the Agent's counsel pursuant to Section 3(d)(vi), (vii) and (viii),
above shall not exceed (A) $75,000 in connection with the filing of the Prospectus due upon the execution of this Agreement, (B) $15,000
in connection with each Triggering Event Date (as defined below) on which the Company is required to provide a certificate pursuant to
Section 4(o), except for a Triggering Event Date related to the Company’s filing of an Annual Report on Form 10-K and (C) $25,000
in connection with each Triggering Event Date on which the Company is required to provide a certificate pursuant to Section 4(o) related
to the Company’s filing of an Annual Report on Form 10-K.”
3.
For the avoidance of doubt, any reference to “Prospectus” in the Sales Agreement shall be deemed to include the November
2023 ATM Prospectus Supplement.
4.
The Company represents and warrants to, and agrees with the Agent that: this Amendment No. 1 has been duly authorized, executed
and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles.
5.
Without limiting any other agreement, including Section 3(d), as applicable, the Company agrees to pay all costs, fees and expenses
incurred in connection with the filing of the November 2023 ATM Prospectus Supplement and entering into this Amendment No. 1 and the performance
of the Company’s obligations under the Sales Agreement as further amended by this Amendment No. 1 and the transactions contemplated
hereby and thereby, including without limitation, (i) all filing fees, attorneys’ fees and expenses incurred by the Company or any
Agent in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part
of the Shares authorized by this Amendment No. 1 for offer and sale under the state securities or blue sky laws and (ii) the reasonable
fees and disbursements of the Agent’s counsel, including the reasonable fees and expenses of counsel for the Agent in connection
with, FINRA review, if any, and approval of the Agent’s participation in the offering and distribution of the Shares authorized
by this Amendment No. 1. The fees and disbursements of Agent’s counsel pursuant to subsections (i) and (ii) above shall not exceed
$75,000. For the avoidance of doubt, the $75,000 of fees and disbursements of Agent’s counsel that may become payable by the Company
hereunder shall be in addition to the fees and disbursements of Agent’s counsel in connection with entering into the Original Agreement,
that were paid by the Company under Section 3(d) of the Sales Agreement and the fees and disbursements of Agent’s Counsel that may
become payable by the Company pursuant to Section 3(d) of the Sales Agreement in connection with each Triggering Event Date on which the
Company is required to provide a certificate pursuant to Section 4(o) of the Sales Agreement.
6.
The Sales Agreement, as further amended by this Amendment No. 1, represents the final agreement of the parties and supersedes all
prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof.
This Amendment No. 1 may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are
for the convenience of the parties only and shall not affect the construction or interpretation of this Amendment No. 1.
7.
The invalidity or unenforceability of any section, paragraph or provision of this Amendment No. 1 shall not affect the validity
or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Amendment No. 1
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable. All references in the Sales Agreement to the “Agreement”
shall mean the Original Agreement as amended by this Amendment No. 1; provided, however, that all references to “date
of this Agreement” in the Sales Agreement shall (i) continue to refer to the date of the Original Agreement, unless otherwise amended
pursuant to this Amendment No. 1 and (ii) refer to each of the date of the Original Agreement and the date of Amendment No. 1, as the
case may be, except with respect to the first paragraph of Section 2 “Representations and Warranties of the Company,” Section
2(b) “Compliance with Registration Requirements,” and Section 8(a) “Press Release and Disclosure.”
8.
This Amendment No. 1 may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be
made by facsimile, electronic mail or other transmission method as permitted by applicable law, and the parties hereto agree that any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. A party’s
electronic signature (complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended
from time to time, or other applicable law) of this Amendment No. 1 shall have the same validity and effect as a signature affixed by
the party’s hand.
[Remainder of Page Intentionally
Blank]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding amendment to the Sales Agreement between the Company and the Agent.
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Very truly yours, |
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JEFFERIES LLC |
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By: |
/s/ Michael Magarro |
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Name: |
Michael Magarro |
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Title: |
Managing Director |
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ACCEPTED as of the date first-above written: |
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BIOXCEL THERAPEUTICS, INC. |
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By: |
/s/ Richard Steinhart |
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Name: |
Richard Steinhart |
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Title: |
Chief Financial Officer |
Exhibit 4.3
BIOXCEL THERAPEUTICS, INC.
INDENTURE
Dated as of ,
20
[ ]
Trustee
TABLE OF CONTENTS
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Page |
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
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1 |
Section 1.1. |
Definitions |
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1 |
Section 1.2. |
Other Definitions |
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4 |
Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
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4 |
Section 1.4. |
Rules of Construction |
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4 |
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ARTICLE II. THE SECURITIES |
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5 |
Section 2.1. |
Issuable in Series |
|
5 |
Section 2.2. |
Establishment of Terms of Series of Securities |
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5 |
Section 2.3. |
Execution and Authentication |
|
7 |
Section 2.4. |
Registrar and Paying Agent |
|
7 |
Section 2.5. |
Paying Agent to Hold Money in Trust |
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8 |
Section 2.6. |
Securityholder Lists |
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8 |
Section 2.7. |
Transfer and Exchange |
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8 |
Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities |
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9 |
Section 2.9. |
Outstanding Securities |
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9 |
Section 2.10. |
Treasury Securities |
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9 |
Section 2.11. |
Temporary Securities |
|
10 |
Section 2.12. |
Cancellation |
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10 |
Section 2.13. |
Defaulted Interest |
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10 |
Section 2.14. |
Global Securities |
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10 |
Section 2.15. |
CUSIP Numbers |
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11 |
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ARTICLE III. REDEMPTION |
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11 |
Section 3.1. |
Notice to Trustee |
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11 |
Section 3.2. |
Selection of Securities to be Redeemed |
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12 |
Section 3.3. |
Notice of Redemption |
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12 |
Section 3.4. |
Effect of Notice of Redemption |
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13 |
Section 3.5. |
Deposit of Redemption Price |
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13 |
Section 3.6. |
Securities Redeemed in Part |
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13 |
ARTICLE IV. COVENANTS |
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13 |
Section 4.1. |
Payment of Principal and Interest |
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13 |
Section 4.2. |
SEC Reports |
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13 |
Section 4.3. |
Compliance Certificate |
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13 |
Section 4.4. |
Stay, Extension and Usury Laws |
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14 |
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ARTICLE V. SUCCESSORS |
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14 |
Section 5.1. |
When Company May Merge, Etc. |
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14 |
Section 5.2. |
Successor Corporation Substituted |
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14 |
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ARTICLE VI. DEFAULTS AND REMEDIES |
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15 |
Section 6.1. |
Events of Default |
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15 |
Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
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16 |
Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
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16 |
Section 6.4. |
Trustee May File Proofs of Claim |
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17 |
Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
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17 |
Section 6.6. |
Application of Money Collected |
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17 |
Section 6.7. |
Limitation on Suits |
|
18 |
Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
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18 |
Section 6.9. |
Restoration of Rights and Remedies |
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18 |
Section 6.10. |
Rights and Remedies Cumulative |
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18 |
Section 6.11. |
Delay or Omission Not Waiver |
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19 |
Section 6.12. |
Control by Holders |
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19 |
Section 6.13. |
Waiver of Past Defaults |
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19 |
Section 6.14. |
Undertaking for Costs |
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19 |
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ARTICLE VII. TRUSTEE |
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20 |
Section 7.1. |
Duties of Trustee |
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20 |
Section 7.2. |
Rights of Trustee |
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21 |
Section 7.3. |
Individual Rights of Trustee |
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21 |
Section 7.4. |
Trustee’s Disclaimer |
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21 |
Section 7.5. |
Notice of Defaults |
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22 |
Section 7.6. |
Reports by Trustee to Holders |
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22 |
Section 7.7. |
Compensation and Indemnity |
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22 |
Section 7.8. |
Replacement of Trustee |
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23 |
Section 7.9. |
Successor Trustee by Merger, Etc. |
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23 |
Section 7.10. |
Eligibility; Disqualification |
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23 |
Section 7.11. |
Preferential Collection of Claims Against Company |
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23 |
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
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24 |
Section 8.1. |
Satisfaction and Discharge of Indenture |
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24 |
Section 8.2. |
Application of Trust Funds; Indemnification |
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24 |
Section 8.3. |
Legal Defeasance of Securities of any Series |
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25 |
Section 8.4. |
Covenant Defeasance |
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26 |
Section 8.5. |
Repayment to Company |
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27 |
Section 8.6. |
Reinstatement |
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27 |
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ARTICLE IX. AMENDMENTS AND WAIVERS |
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27 |
Section 9.1. |
Without Consent of Holders |
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27 |
Section 9.2. |
With Consent of Holders |
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28 |
Section 9.3. |
Limitations |
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28 |
Section 9.4. |
Compliance with Trust Indenture Act |
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29 |
Section 9.5. |
Revocation and Effect of Consents |
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29 |
Section 9.6. |
Notation on or Exchange of Securities |
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29 |
Section 9.7. |
Trustee Protected |
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29 |
ARTICLE X. MISCELLANEOUS |
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30 |
Section 10.1. |
Trust Indenture Act Controls |
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30 |
Section 10.2. |
Notices |
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30 |
Section 10.3. |
Communication by Holders with Other Holders |
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31 |
Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
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31 |
Section 10.5. |
Statements Required in Certificate or Opinion |
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31 |
Section 10.6. |
Rules by Trustee and Agents |
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31 |
Section 10.7. |
Legal Holidays |
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31 |
Section 10.8. |
No Recourse Against Others |
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32 |
Section 10.9. |
Counterparts |
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32 |
Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
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32 |
Section 10.11. |
No Adverse Interpretation of Other Agreements |
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32 |
Section 10.12. |
Successors |
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32 |
Section 10.13. |
Severability |
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32 |
Section 10.14. |
Table of Contents, Headings, Etc. |
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33 |
Section 10.15. |
Securities in a Foreign Currency |
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33 |
Section 10.16. |
Judgment Currency |
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33 |
Section 10.17. |
Force Majeure |
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33 |
Section 10.18. |
U.S.A. Patriot Act |
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34 |
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ARTICLE XI. SINKING FUNDS |
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34 |
Section 11.1. |
Applicability of Article |
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34 |
Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
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34 |
Section 11.3. |
Redemption of Securities for Sinking Fund |
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34 |
BIOXCEL THERAPEUTICS, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of , 20
§ 310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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Not Applicable |
(a)(4) |
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Not Applicable |
(a)(5) |
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7.10 |
(b) |
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7.10 |
§ 311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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Not Applicable |
§ 312(a) |
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2.6 |
(b) |
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10.3 |
(c) |
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10.3 |
§ 313(a) |
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7.6 |
(b)(1) |
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7.6 |
(b)(2) |
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7.6 |
(c)(1) |
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7.6 |
(d) |
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7.6 |
§ 314(a) |
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4.2, 10.5 |
(b) |
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Not Applicable |
(c)(1) |
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10.4 |
(c)(2) |
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10.4 |
(c)(3) |
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Not Applicable |
(d) |
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Not Applicable |
(e) |
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10.5 |
(f) |
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Not Applicable |
§ 315(a) |
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7.1 |
(b) |
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7.5 |
(c) |
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7.1 |
(d) |
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7.1 |
(e) |
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6.14 |
§ 316(a) |
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2.10 |
(a)(1)(A) |
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6.12 |
(a)(1)(B) |
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6.13 |
(b) |
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6.8 |
§ 317(a)(1) |
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6.3 |
(a)(2) |
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6.4 |
(b) |
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2.5 |
§ 318(a) |
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10.1 |
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
Indenture dated as of ,
20 between BioXcel Therapeutics, Inc., a company incorporated under the laws of the State of Delaware (“Company”),
and [ ] (“Trustee”).
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate” of any specified person
means any other person directly or indirectly controlling or controlled by or under common control with such specified person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by”
and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means any Registrar, Paying
Agent or Notice Agent.
“Board of Directors” means the
board of directors of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or
pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to
the Trustee.
“Business Day” means any day except
a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of payment) on which
banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and
all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means the party named
as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written
order signed in the name of the Company by an Officer.
“Corporate Trust Office” means
the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default” means any event which
is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect
to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated
as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and
if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall
mean the Depositary with respect to the Securities of such Series.
“Discount Security” means any
Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2.
“Dollars” and “$”
means the currency of The United States of America.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Foreign Currency” means any currency
or currency unit issued by a government other than the government of The United States of America.
“Foreign Government Obligations”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations
guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and
credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing
all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of
such Depositary or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indenture” means this Indenture
as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established
as contemplated hereunder.
“interest” with respect to any
Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect
to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chief Executive
Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and
any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer.
“Opinion of Counsel” means a written
opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. The opinion
may contain customary limitations, conditions and exceptions.
“person” means any individual,
corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“principal” of a Security means
the principal of the Security plus, when appropriate, the premium, if any, on the Security.
“Responsible Officer” means any
officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with respect
to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge
of and familiarity with a particular subject.
“SEC” means the Securities and
Exchange Commission.
“Securities” means the debentures,
notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
“Stated Maturity” when used with
respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest
is due and payable.
“Subsidiary” of any specified
person means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or
a combination thereof.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
“Trustee” means the person named
as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee
hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any
Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, The United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided
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 U.S. Government Obligation evidenced by such depositary
receipt.
Section 1.2. Other
Definitions.
|
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DEFINED IN |
|
TERM |
|
SECTION |
|
“Bankruptcy Law” |
|
6.1 |
|
“Custodian” |
|
6.1 |
|
“Event of Default” |
|
6.1 |
|
“Judgment Currency” |
|
10.16 |
|
“Legal Holiday” |
|
10.7 |
|
“mandatory sinking fund payment” |
|
11.1 |
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“New York Banking Day” |
|
10.16 |
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“Notice Agent” |
|
2.4 |
|
“optional sinking fund payment” |
|
11.1 |
|
“Paying Agent” |
|
2.4 |
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“Registrar” |
|
2.4 |
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“Required Currency” |
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10.16 |
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“Specified Courts” |
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10.10 |
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“successor person” |
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5.1 |
|
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
“Commission” means the SEC.
“indenture securities” means the
Securities.
“indenture security holder” means
a Securityholder.
“indenture to be qualified” means
this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities means
the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are
used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular; and
(e) provisions
apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
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. All Securities
of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental
indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method
by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined.
Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and
ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance of any Securities within
a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities
within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant to a Board Resolution,
and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one Series need not be
issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant
to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution
and Authentication.
An Officer shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no
longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time,
authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of any
Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate
and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of
directors and/or vice-presidents or a committee of Responsible Officers shall determine that such action would expose the Trustee to personal
liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar
and Paying Agent.
The Company shall maintain, with respect to each
Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or
agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities
of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice
Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, 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, surrenders, notices and demands; provided, however, that any appointment of the Trustee
as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal
process on the Company.
The Company may also from time to time
designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for
Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional
notice agent. The term “Registrar” includes any co-registrar; the term “Paying Agent”
includes any additional paying agent; and the term “Notice Agent” includes any additional notice agent. The
Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the Trustee the initial
Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may
be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5. Paying
Agent to Hold Money in Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities,
and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities
all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the
Trustee shall serve as Paying Agent for the Securities.
Section 2.6. Securityholder
Lists.
The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities
and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
Section 2.7. Transfer
and Exchange.
Where Securities of a Series are presented to
the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required
(a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption and
ending at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of a Company Order
the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this
Section, 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.
Every new Security of any Series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.9. Outstanding
Securities.
The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as
not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary
of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities
payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases
to accrue.
The Company may purchase or otherwise acquire the
Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
Section 2.10. Treasury
Securities.
In determining whether the Holders of the
required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice,
consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned
shall be so disregarded.
Section 2.11. Temporary
Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall
be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate definitive Securities
of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall
have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment,
replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act
and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted
Interest.
If the Company defaults in a payment of interest
on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall
fix the record date and payment date. At least 10 days before the special record date, the Company shall send to the Trustee and
to each Securityholder of the Series a notice that states the special record date, the payment date and the amount of interest to
be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global
Securities.
2.14.1.
Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish
whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary
for such Global Security or Securities.
2.14.2.
Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture
and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered
in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing
agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s
Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a
Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary,
by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such a successor Depositary.
2.14.3. Legends. Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the Depository Trust Company
(“DTC”) is the Depositary, each Global Note registered in the name of DTC or its nominee shall bear a legend in substantially
the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4. Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.
2.14.5.
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6.
Consents, Declaration and Directions. The Company, the Trustee and any Agent shall treat a person as the Holder of
such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written
statement of the Depositary or by the applicable procedures of such Depositary with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
Section 2.15. 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.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the
Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in
such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the
Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company
shall give the notice at least 15 days before the redemption date, unless a shorter period is satisfactory to the Trustee.
Section 3.2. Selection
of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities of a Series are
to be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if the Securities are in
the form of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national
securities exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Securities
are listed, or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and
appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in
the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall
be selected from Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities
of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the Series and
portions of them it selected for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities
of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and
the authorized integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption
also apply to portions of Securities of that Series called for redemption.
Section 3.3. Notice
of Redemption.
Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more than 60 days before
a redemption date, the Company shall send or cause to be sent by first-class mail or electronically, in accordance with the procedures
of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to
be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c)
the name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption
date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults
in the deposit of the redemption price;
(g) the
CUSIP number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has delivered to the
Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is sent as provided in
Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption
price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate for a Series,
a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New York City time, on the
redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security that is redeemed in
part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount
to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees for the benefit
of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities
of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York City time,
on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and interest,
if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities of a Series are
outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC 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 SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed with the SEC via
the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information and documents to
the Trustee under this Section 4.2 are for informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).
Section 4.3. Compliance
Certificate.
To the extent any Securities of a
Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has
kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of
which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate with or merge with
or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor person”)
unless:
(a) the
Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under this
Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to
the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the
Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s Certificate
nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor
Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants
under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,” wherever used
herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental
indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period); or
(b) default
in the payment of principal of any Security of that Series at its Maturity; or
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraphs
(a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due; or
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or 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
60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy Law” means
title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the Trustee written notice
of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice
will describe in reasonable detail the status of such Default or Event of Default and what action the Company is taking or proposes to
take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d) or
(e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default
with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default
or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days, or
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities
of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such 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 the payment of the compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money or property on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities 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 interest, respectively; and
Third: To
the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest,
if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the
extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in principal amount of
the outstanding Securities of any Series 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 the Securities of such
Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c)
subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability, and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than a majority in principal
amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series, by written
notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture agree, and each Holder
of any Security by his 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, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security,
including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise 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 person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series 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 such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs
(e), (f) and (g) of this Section and in Section 7.2, each with respect to the Trustee.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance
thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) 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, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections
7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice
of Defaults.
If a Default or Event of Default occurs and is continuing
with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall send to
each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or, if
later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default
or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so
long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days prior to each anniversary of the date
of this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept
by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the time of its mailing
to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that
Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on
any national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the Trustee 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.
The Company shall indemnify each of the Trustee and
any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in
the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder, unless and to the extent that the Company is materially prejudiced thereby. 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 will not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
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
willful misconduct or negligence.
To secure the Company’s payment obligations
in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by
the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive
the termination of this Indenture.
Section 7.8. Replacement
of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders
of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect
to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice
of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without
any further act shall be the successor Trustee, subject to Section 7.10.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always have a Trustee who satisfies
the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA §
311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company Order be discharged
with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except as
hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation
(1) have
become due and payable by reason of sending a notice of redemption or otherwise, or
(2) will
become due and payable at their Stated Maturity within one year, or
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, shall
have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations,
which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including mandatory sinking
fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest
are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c)
the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with the
Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and principal received in
respect of such obligations other than any payable by or on behalf of Holders.
(c)
The Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of
any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified,
pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit referred to
in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall
no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging
the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities
of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified
therein, any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an
Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute
a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a
supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to
Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby;
provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments)
of and interest on all the Securities of such Series on the dates such installments of principal or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of
such deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that
remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply
any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
the obligations of the Company under this Indenture with respect to the Securities of such Series and under the Securities of such
Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee
or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if
the Company has made any payment of principal of or interest on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee may amend or supplement
this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g)
to comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Securityholder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to 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; or
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With
Consent of Holders.
The Company and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected
by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of
such Series), 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 the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by
notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series)
may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the
Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but
it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section
becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected,
an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c)
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e)
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture or the Securities
of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth in a supplemental
indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation
of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the
waiver becomes effective.
Any amendment or waiver once effective shall bind
every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through
(h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to, fix
a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required
or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled
to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee may place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities
of that Series may issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3 new
Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s
Certificate or an Opinion of Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures
upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust
Indenture Act Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision
shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the
Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air courier guaranteeing next day
delivery, to the others’ address:
if to the Company:
BioXcel Therapeutics, Inc.
780 East Main Street
Branford, CT 06405
Attention: Chief Financial Officer
Telephone: (203) 643-8060
with a copy to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Attention: Peter Handrinos and Keith Halverstam
Telephone: (617) 948-6000
if to the Trustee:
[ ]
Attention: [ ]
Telephone: [ ]
with a copy to:
[ ]
Attention: [ ]
Telephone: [ ]
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall
be sent electronically or by first-class mail to his, her or its address shown on the register kept by the Registrar, in accordance with
the procedures of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or any defect
in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is sent or published
in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice or communication to
Securityholders, it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security (or its
designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication by Holders
with Other Holders.
Securityholders of any Series may communicate
pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
Section 10.4. Certificate and Opinion
as to Conditions Precedent.
Upon any request or application by the Company to
the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in
Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall
comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) 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;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6. Rules by Trustee
and Agents.
The Trustee may make reasonable rules for action
by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal Holidays.
A “Legal Holiday” is any day that
is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder (past
or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. 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 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR
ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding arising out
of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively,
the “Specified Courts”), and each party irrevocably submits to the non exclusive jurisdiction of such courts in any
such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable
statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit, action
or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities)
each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the
Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and
headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities
in a Foreign Currency.
Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect
to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time
outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one currency, then
the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall
be determined by converting any such other currency into a currency that is designated upon issuance of any particular Series of
Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates”
section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such
source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply
in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations provided for in
the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably
binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required Currency”)
into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day,
then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking
Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized
or required by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
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 best
efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the
circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee 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.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to
Section 2.2 and except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided
for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and
any other amount provided for by the terms of Securities of such 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 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction of Sinking
Fund Payments with Securities.
The Company may, in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously
called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment
is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of
such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking
fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously
so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto,
not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be
credited for such purpose by the Trustee at the 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. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption of Securities
for Sinking Fund.
Not less than 45 days (unless otherwise
indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular
Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to
the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that
Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to
Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in
the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular Series of Securities)
before each such sinking fund payment date the Securities to be redeemed upon such sinking fund payment date will be selected in the
manner specified in Section 3.2 and the Company shall send or cause to be sent a notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in and in accordance with Section 3.3. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
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BioXcel Therapeutics, Inc. |
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By: |
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Name: |
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Its: |
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[ ], as Trustee |
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By: |
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Name: |
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Its: |
Exhibit 5.1
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200 Clarendon Street |
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Boston, Massachusetts 02116 |
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Tel: +1.617.948.6000 Fax: +1.617.948.6001 |
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www.lw.com |
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FIRM / AFFILIATE OFFICES |
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Brussels |
Orange County |
Century City |
Paris |
Chicago |
Riyadh |
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San Diego |
Düsseldorf |
San Francisco |
Frankfurt |
Seoul |
November 1, 2023 |
Hamburg |
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BioXcel Therapeutics, Inc.
555 Long Wharf Drive
New Haven, CT 06511
| Re: | Registration Statement on Form S-3; Shares of Common Stock, par value $0.001 per share, having an aggregate offering price
of up to $150.0 million |
To the addressee set forth above:
We have acted as special counsel to BioXcel Therapeutics, Inc.,
a Delaware corporation (the “Company”), in connection with its filing on the date hereof with the Securities
and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (the “Registration
Statement”), including a base prospectus (the “Base Prospectus”), which provides that it will
be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”),
under the Securities Act of 1933, as amended (the “Act”), relating to the registration for issue and sale by
the Company of up to $350,000,000 aggregate offering amount of (i) shares of the Company’s common stock, $0.001 par value per
share (“Common Stock”), (ii) shares of one or more series of the Company’s preferred stock, $0.001
par value per share (“Preferred Stock”), (iii) one or more series of the Company’s debt securities
(collectively, “Debt Securities”) to be issued under an indenture to be entered into between the Company, as
issuer, and a trustee (a form of which is included as Exhibit 4.3 to the Registration Statement) and one or more board resolutions,
supplements thereto or officer’s certificates thereunder (such indenture, together with the applicable board resolution, supplement
or officer’s certificate pertaining to the applicable series of Debt Securities, the “Applicable Indenture”),
(iv) warrants (“Warrants”) and (v) units (“Units”). The Common Stock, Preferred
Stock, Debt Securities, Warrants, and Units, plus any additional Common Stock, Preferred Stock, Debt Securities, Warrants and Units that
may be registered pursuant to any subsequent registration statement that the Company may hereafter file with the Commission pursuant to
Rule 462(b) under the Act in connection with the offering by the Company contemplated by the Registration Statement, are referred
to herein collectively as the “Securities.”
We also have acted as special counsel to the Company
in connection with the sale through Jefferies LLC, as the sales agent (the “Sales Agent”), from time to time
by the Company of shares of Common Stock (the “Sales Agreement Shares”) having an aggregate offering price of
up to $150.0 million pursuant to the Registration Statement, the Base Prospectus and the related prospectus supplement for the sale of
the Sales Agreement Shares included in the Registration Statement (the Base Prospectus and such prospectus supplement, collectively, the
“Sales Agreement Prospectus”), and that certain Open Market Sale AgreementSM, dated as of May 10,
2021, between the Sales Agent and the Company, as amended (the “Sales Agreement”).
This opinion is being furnished in connection with
the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement or related applicable Prospectus (including the Sales Agreement Prospectus), other than
as expressly stated herein with respect to the issuance of the Securities, including the issuance of the Sales Agreement Shares.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and with respect
to the opinions set forth in paragraphs 3 through 5 below, the internal laws of the State of New York, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other
laws, or as to any matters of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1. When
an issuance of Common Stock (other than the Sales Agreement Shares) has been duly authorized by all necessary corporate action of the
Company, upon issuance, delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the
applicable Prospectus and by such corporate action, and in total amounts and numbers of shares that do not exceed the respective total
amounts and numbers of shares (a) available under the amended and restated certificate of incorporation, as amended (the “Certificate
of Incorporation”), and (b) authorized by the board of directors in connection with the offering contemplated by the
applicable Prospectus, such shares of Common Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion,
we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
2. When
a series of Preferred Stock has been duly established in accordance with the terms of the Company’s Certificate of Incorporation
and authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than
the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate action, and in total amounts and numbers
of shares that do not exceed the respective total amounts and numbers of shares (a) available under the Certificate of Incorporation,
and (b) authorized by the board of directors in connection with the offering contemplated by the applicable Prospectus, such shares
of such series of Preferred Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed
that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
3. When
the Applicable Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when the
specific terms of a particular series of Debt Securities have been duly established in accordance with the terms of the Applicable Indenture
and authorized by all necessary corporate action of the Company, and such Debt Securities have been duly executed, authenticated, issued
and delivered against payment therefor in accordance with the terms of the Applicable Indenture and in the manner contemplated by the
applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
4. When
the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of the applicable
warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of the applicable warrant agreement and in the manner contemplated
by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
5. When
the applicable unit agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when
the specific terms of a particular issuance of Units have been duly authorized in accordance with the terms of the applicable unit agreement
and authorized by all necessary corporate action of the Company, and such Units have been duly executed, authenticated, issued and delivered
against payment therefor in accordance with the terms of the applicable unit agreement and in the manner contemplated by the applicable
Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Units have been duly authorized and reserved
for issuance by all necessary corporate action), such Units will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
6. Upon
the completion of all Corporate Proceedings (as defined below) relating to the Sales Agreement Shares, when the Sales Agreement Shares
shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers,
and have been issued by the Company against payment therefor (not less than par value) in accordance with the Corporate Proceedings and
the terms of the Sales Agreement, the issuance and sale of the Sales Agreement Shares will have been duly authorized by all necessary
corporate action of the Company, and the Sales Agreement Shares will be validly issued, fully paid and nonassessable. In rendering the
foregoing opinion, we have assumed that (i) the Company will comply with all applicable notice requirements regarding uncertificated
shares provided in the DGCL, (ii) upon the issuance of any of the Sales Agreement Shares, the total number of shares of Common Stock
issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the
Company’s Certificate of Incorporation and (iii) certain terms of the Sales Agreement Shares to be issued by the Company from
time to time will be authorized and approved by the board of directors of the Company or one or more committees thereof established by
the board of directors of the Company with the authority to issue and sell Sales Agreement Shares pursuant to the Sales Agreement in accordance
with the DGCL, the Certificate of Incorporation, the amended and restated bylaws of the Company and certain resolutions of the board of
directors of the Company and one or more committees thereof (with such approvals referred to herein as the “Corporate Proceedings”)
prior to issuance thereof.
Our opinions are subject to: (i) the effect
of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding
in equity or at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality,
reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought; and (iii) the
invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution
to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We express no opinion
as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other
economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing
law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring
the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon
acceleration of any Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute
unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance
waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation,
trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity,
election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations,
(k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent
to assignment or transfer of any right or property, (n) any provision to the extent it requires that a claim with respect to a security
denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange
at a particular date, to the extent applicable law otherwise provides, and (o) the severability, if invalid, of provisions to the
foregoing effect.
With your consent, we have assumed (a) that
each of the Debt Securities, Warrants and Units and the Applicable Indenture, warrant agreements, and unit agreements governing such Securities
(collectively, the “Documents”) will be governed by the internal laws of the State of New York, (b) that
each of the Documents has been or will be duly authorized, executed and delivered by the parties thereto, (c) that each of the Documents
constitutes or will constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against
each of them in accordance with their respective terms, and (d) that the status of each of the Documents as legally valid and binding
obligations of the parties will not be affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations
of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations
from, or to make required registrations, declarations or filings with, governmental authorities.
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained
in each Prospectus (including the Sales Agreement Prospectus) under the heading “Legal Matters.” We further consent to the
incorporation by reference of this letter and consent into any registration statement or post-effective amendment to the Registration
Statement filed pursuant to Rule 462(b) under the Act with respect to the Securities. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
|
Sincerely, |
|
|
|
/s/ Latham & Watkins LLP |
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We consent to the reference to
our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of BioXcel Therapeutics, Inc.
for the registration of its common stock, preferred stock, debt securities, warrants and units and to the incorporation by reference therein
of our report dated March 15, 2023, with respect to the consolidated financial statements of BioXcel Therapeutics, Inc. included
in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Stamford, Connecticut
November 1, 2023
Exhibit 107
CALCULATION OF REGISTRATION FEE
Table
1 – Newly Registered and Carry Forward Securities |
|
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
Newly
Registered Securities |
Fees
To Be Paid |
Equity |
Common
Stock, $0.001 par value per share(1) |
|
— |
— |
— |
— |
— |
Fees
To Be Paid |
Equity |
Preferred
Stock, $0.001 par value per share(1) |
|
— |
— |
— |
— |
— |
Fees
To Be Paid |
Debt |
Debt
Securities |
|
— |
— |
— |
— |
— |
Fees
To Be Paid |
Other |
Warrants |
|
— |
— |
— |
— |
— |
Fees
To Be Paid |
Other |
Units |
|
— |
— |
— |
— |
— |
Fees
To Be Paid |
Unallocated
(Universal Shelf) |
(2) |
457(o) |
$350,000,000(3) |
N/A |
$
350,000,000(3) |
0.00014760 |
$
51,660 |
Fees
Previously Paid |
N/A |
N/A |
N/A |
— |
— |
— |
— |
— |
Carry
Forward Securities |
Carry
Forward Securities |
— |
— |
— |
— |
— |
— |
— |
— |
|
Total Offering Amounts |
|
$
350,000,000 |
— |
$
51,660 |
|
Total Fees Previously Paid |
|
|
|
— |
|
Total Fee Offsets |
|
|
|
$
25,525(4) |
|
Net Fee Due |
|
|
|
$
26,135 |
Table
2 – Fee Offset Claims and Sources |
|
Registrant
or
Filer Name |
Form or
Filing Type |
File
Number |
Initial
Filing Date |
Filing
Date |
Fee
Offset
Claimed |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed |
Fee
Paid
with Fee
Offset
Source |
Rule 457(p) |
Fee
Offset Claims |
BioXcel
Therapeutics, Inc. |
Form S-3 |
333-240118 |
July 27,
2020 |
— |
$25,525(4) |
Unallocated
(Universal) Shelf |
N/A |
N/A |
$275,343,681(4) |
N/A |
Fee
Offset Sources |
BioXcel
Therapeutics, Inc. |
POSASR |
333-240118 |
— |
March 11,
2022 |
— |
— |
— |
— |
— |
$27,810(4)
|
| (1) | Includes
rights to acquire Common Stock or Preferred Stock of the Company under any shareholder rights
plan then in effect, if applicable under the terms of any such plan. |
| (2) | An unspecified number of securities or aggregate
principal amount, as applicable, is being registered as may from time to time be offered
at unspecified prices and, in addition, an unspecified number of additional shares of Common
Stock is being registered as may be issued from time to time upon conversion of any Debt
Securities that are convertible into Common Stock or pursuant to any anti-dilution adjustments
with respect to any such convertible Debt Securities. |
| (3) | Estimated solely for the purpose of calculating
the registration fee. No separate consideration will be received for shares of Common Stock
that are issued upon conversion of Debt Securities or Preferred Stock or upon exercise of
Common Stock Warrants registered hereunder. The aggregate maximum offering price of all securities
issued by the Company pursuant to this registration statement will not exceed $350,000,000. |
| (4) | The $350,000,000 of securities registered
on behalf of the Company pursuant to this registration statement includes $275,343,681 of
the registrant’s unsold securities registered pursuant to the Company’s registration
statement on Form S-3 (File No. 333-240118), initially filed with the Securities
and Exchange Commission (the “Commission”) on July 27, 2020, as amended
by a Post-Effective Amendment No. 1 to Form S-3, filed with the Commission on March 11,
2022, and as further amended by a Post-Effective Amendment No. 2 to Form S-3, filed
with the Commission on March 11, 2022, relating to the offer and sale of $300,000,000
in the aggregate of unallocated (universal) shelf securities of the registrant (the “Earlier
Registration Statement”), and the offering that included such unsold securities has
terminated. In connection with the filing of the Earlier Registration Statement, the registrant
utilized previously paid registration fees of $27,810 with respect to unallocated (universal)
shelf securities pursuant to Rule 457(o) promulgated under the Securities Act of
1933, as amended (the “Securities Act”), and, as of the date the offering under
such registration statement was terminated, an aggregate of $24,656,319 of the registrant’s
securities had been sold under such registration statement. Pursuant to Rule 457(p) promulgated
under the Securities Act, the registrant hereby offsets the aggregate total dollar amount
of the filing fee associated with the unsold securities under the Earlier Registration Statement
(being $25,525, calculated at the fee rate in effect at the date of filing of the Earlier
Registration Statement of $92.70 per million dollars) against the total filing fee due for
this registration statement. |
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