As filed with the Securities and Exchange Commission on January 26, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APREA 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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84-2246769
(I.R.S. Employer
Identification Number)
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3805 Old Easton Road
Doylestown, PA 18902
(617) 463-9385
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Oren Gilad, Ph.D.
President and Chief Executive Officer
Aprea Therapeutics, Inc.
3805 Old Easton Road
Doylestown, PA 18902
(617) 463-9385
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Fahd M.T. Riaz, Esq.
Patrick O’Malley, Esq.
DLA Piper LLP (US)
1650 Market Street, Suite 5000
Philadelphia, PA 19103-7300
(212) 839-5599
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
Emerging growth company ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
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a base prospectus which covers the offering, issuance and sale by the Registrant and/or selling securityholders of up to a maximum aggregate offering price of $150,000,000 of the Registrant’s common stock, preferred stock, warrants, debt securities, rights to purchase common stock, preferred stock, debt securities and/or units, and units; and
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a sales agreement prospectus covering the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of $1,000,000 of shares of the Registrant’s common stock that may be offered, issued and sold from time to time under an At The Market Offering Agreement, dated January 26, 2024, with H.C. Wainwright & Co., LLC (“Wainwright”).
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The common stock that may be offered, issued and sold by the Registrant under the sales agreement prospectus is included in the $150,000,000 of securities that may be offered, issued and sold by the Registrant and/or selling stockholders under the base prospectus. Upon termination of the sales agreement with Wainwright, any portion of the $1,000,000 included in the sales agreement prospectus that is not sold pursuant to such sales agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any state or jurisdiction where such offer or sale is not permitted.
Subject to Completion, Dated January 26, 2024
PROSPECTUS
$150,000,000
APREA THERAPEUTICS, INC.
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights to Purchase Common Stock, Preferred Stock,
Debt Securities or Units
Units
We may offer and sell from time to time our shares of common stock, shares of preferred stock, debt securities, warrants, rights to purchase common stock, preferred stock, debt securities or units, as well as units that include any of these securities. We may sell any combination of these securities in one or more offerings with an aggregate offering price of up to $150,000,000.
This prospectus provides a general description of the securities we may offer. Each time we and/or any securityholder offers securities pursuant to this prospectus, we will provide a prospectus supplement containing specific terms of the particular offering together with this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest in any securities. The prospectus supplement also may add, update or change information contained in this prospectus.
This prospectus may not be used to offer and sell securities unless accompanied by the applicable prospectus supplement.
Our common stock is listed on the Nasdaq Capital Market under the symbol “APRE.” On January 25, 2024, the last reported sale price of our common stock was $5.50.
We may sell the securities directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a portion of the securities.
We are an “emerging growth company” and a “smaller reporting company” under federal securities laws and as such, have elected to comply with reduced public company reporting requirements for this prospectus and the documents incorporated by reference herein and may elect to comply with reduced public company reporting requirements in future filings. See “Summary — Implications of Being an Emerging Growth Company and Smaller Reporting Company.”
Investing in our securities involves significant risks. We strongly recommend that you read carefully the risks we describe in this prospectus and in any accompanying prospectus supplement, as well as the risk factors that are incorporated by reference into this prospectus from our filings made with the Securities and Exchange Commission. See “Risk Factors” on page 2 of this prospectus.
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 , 2024
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, (the “SEC”), using a “shelf” registration process. Under this shelf registration process, we may offer and sell from time to time any combination of the securities described in this prospectus in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering, with an aggregate offering price of up to $150,000,000. This prospectus provides you with a general description of the securities we may offer.
Each time we offer securities, we will provide a prospectus supplement that describes the terms of the relevant offering. The prospectus supplement also may add, update or change information contained in this prospectus. Before making an investment decision, you should read carefully both this prospectus and any prospectus supplement together with the documents incorporated by reference into this prospectus as described below under the heading “Information Incorporated by Reference.”
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You should read both this prospectus and any accompanying prospectus supplement together with the additional information incorporated by reference. See “Where You Can Find More Information” and “Information Incorporated by Reference”. We have not authorized anyone to provide you with different information. You should not assume that the information in this prospectus or any supplement to this prospectus is accurate at any date other than the date indicated on the cover page of these documents or the filing date of any document incorporated by reference, regardless of its time of delivery. We are not making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted.
We may sell our securities to or through underwriters, dealers or agents, directly to purchasers or through a combination of any of these methods of sale, as designated from time to time. We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of our securities. An applicable prospectus supplement, which we will provide each time we offer the securities, will set forth the names of any underwriters, dealers or agents involved in the sale of our securities, and any related fee, commission or discount arrangements. See “Plan of Distribution.”
This summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
The terms “Aprea,” the “Company,” “our,” “us” and “we,” as used in this prospectus, refer to Aprea Therapeutics, Inc., unless we state otherwise or the context indicates otherwise.
RISK FACTORS
Investing in our securities involves risk. You should carefully consider the specific risks discussed or incorporated by reference into the applicable prospectus supplement, together with all the other information contained in the prospectus or incorporated by reference into this prospectus and the applicable prospectus supplement. You should also consider the risks, uncertainties and assumptions discussed under the caption “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2022 and in our Quarterly Reports on Form 10-Q for the periods ended March 31, June 30 and September 30, 2023, and in subsequent filings, which are incorporated by reference into this prospectus. These risk factors may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future or by a prospectus supplement relating to a particular offering of our securities. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose all or part of your investment.
FORWARD-LOOKING STATEMENTS
This prospectus includes and incorporates by reference “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. All statements other than statements of historical fact are “forward-looking statements” for purposes of this prospectus. In some cases, you can identify forward-looking statements by terminology such as “may,” “could,” “will,” “would,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “intend,” “predict,” “seek,” “contemplate,” “project,” “continue,” “potential,” “ongoing,” “goal,” or the negative of these terms or other comparable terminology. These forward-looking statements include, but are not limited to, statements about:
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our ability to continue to operate as an integrated company subsequent to our acquisition of Atrin Pharmaceuticals Inc.;
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estimates of our expenses, capital requirements and our needs for additional financing;
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business interruptions, including delays in enrollment, patient follow-up and data collection of clinical trials, resulting from a public health emergency or pandemic;
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the prospects of our product candidates, all of which are still in development;
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outcome and results of ongoing or future preclinical studies and clinical trials of our product candidates;
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our expectations regarding our ability to identify, discover or acquire additional suitable product candidates;
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the design of our ongoing and planned clinical trials, including the sample size, trial duration, endpoint definition, event rate assumptions and eligibility criteria;
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our ability to enroll patients in clinical trials, to timely and successfully complete those trials and to receive necessary regulatory approvals;
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our expectations regarding the timing of initiation of data readout from our clinical trials;
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market acceptance or commercial success of any product candidate we develop and the degree of acceptance among physicians, patients, patient advocacy groups, healthcare payors and the medical community;
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our expectations regarding competition, potential market size, the size of the patient populations for our product candidates, if approved for commercial use, and market acceptance;
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our ability to obtain regulatory approval of our product candidates, and any restrictions, limitations and/or warnings in their labels, if approved;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates;
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potential claims relating to our intellectual property and third-party intellectual property;
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the duration of our intellectual property estate that will provide protection for our product candidates;
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developments relating to our competitors and our industry;
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our sales, marketing or distribution capabilities and our ability to commercialize our product candidates, if we obtain regulatory approval;
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current and future agreements with third parties in connection with conducting clinical trials, as well as the manufacturing of our product candidates;
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our expectations regarding the ability of our current contract manufacturing partners to produce our product candidates in the quantities and timeframe that we will require;
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our expectations regarding our future costs of goods;
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our ability to attract, retain and motivate key personnel and increase the size of our organization;
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our ability to establish collaborations in lieu of obtaining additional financing;
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the impact of government laws and regulations;
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our financial performance; and
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our expectations regarding the time during which we will be an emerging growth company under the JOBS Act or a smaller reporting company under the Exchange Act.
These statements relate to future events or to our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. In evaluating such forward-looking statements, you should specifically consider various factors that may cause actual results to differ materially from current expectations, including the risks outlined under the heading “Risk Factors” contained in this prospectus and any related free writing prospectus, and in any other documents incorporated herein or therein. Any forward-looking statement in this prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, results of operations, industry and future growth. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.
This prospectus and the documents incorporated by reference, may also contain estimates, projections and other information concerning our industry, our business and the markets for certain drugs, including data regarding the estimated size of those markets, their projected growth rates and the incidence of certain medical conditions. Information that is based on estimates, forecasts, projections or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise expressly stated, we obtained these industry, business, market and other data from reports, research surveys, studies and similar data prepared by third parties, industry, medical and general publications, government data and similar sources. In some cases, we do not expressly refer to the sources from which these data are derived.
APREA THERAPEUTICS, INC.
Company Overview
We are a clinical-stage biopharmaceutical company focused on precision oncology through synthetic lethality. Our approach is built upon a platform of integrated discovery technologies to enrich our pipeline with novel targets in synthetic lethality and cancer treatment. Together with our expertise in small molecule drug discovery, we are applying the capabilities of our discovery platform to the development of new precision oncology therapies and the identification of patient populations most likely to benefit.
On May 16, 2022, we acquired Atrin Pharmaceuticals Inc. (“Atrin”), in accordance with the terms of the Agreement and Plan of Merger dated May 16, 2022 (the “Merger Agreement”), by and among us, ATR Merger Sub I Inc., a Delaware corporation and our wholly owned subsidiary (“First Merger Sub”), ATR Merger Sub II LLC, a Delaware limited liability company and wholly owned subsidiary of Aprea (“Second Merger Sub”) and Atrin. Pursuant to the Merger Agreement, First Merger Sub merged with and into Atrin, pursuant to which Atrin was the surviving corporation and became a wholly owned subsidiary of Aprea (the “First Merger”). Immediately following the First Merger, Atrin merged with and into the second Merger Sub, pursuant to which Second Merger Sub was the surviving entity. The former Atrin business is now our business.
We believe that synthetic lethality has the potential to impact patients’ lives and treatment strategies for a wide range of cancer types. When a gene in the DNA damaged response (“DDR”) pathway is damaged or fails, related genes make up for its loss of function. Our approach is to inhibit these genes, thereby specifically killing cancer cells with specific mutations. This approach is called synthetic lethality. Using synthetic lethality, our product candidates are designed to selectively kill cancer cells while minimizing the effect on normal, unmutated cells, decreasing the toxicity normally associated with cancer treatment. We aspire to become a leader in this emerging field and are establishing a pipeline of clinical and preclinical programs that we believe may have broad application to cancer treatment.
Our most advanced synthetic lethality product candidate is ATRN-119, a clinical-stage small molecule inhibitor of ataxia telangiectasia and Rad3-related, or ATR, a kinase that plays a critical role in DDR. ATR is one of several key regulators of the response to defective DNA replication and DNA damage, which occurs more commonly in cancer cells than in normal cells. We are enrolling patients into a Phase 1/2a clinical trial to evaluate ATRN-119 under an investigational new drug application, or IND. The first four dose cohorts have been completed, and patients with advanced solid tumors having mutations in defined DDR-related genes continue to be enrolled into additional cohorts of the Phase 1 dose escalation part of the trial. The primary endpoint of this Phase 1 part is to evaluate the tolerability and pharmacokinetics of ATRN-119 when administered orally on a continuous, once-daily schedule. We anticipate ATRN-119 tolerability and pharmacokinetic data from Phase 1 to be available in the second half of 2024.
We have several additional, wholly owned preclinical synthetic lethality programs. We are targeting WEE1, a kinase that is a key regulator of multiple phases of the cell cycle. Our lead WEE1 inhibitor product candidate is ATRN-1051, and we anticipate clearance of the IND for ATRN-1051 by the end of the first quarter of 2024. In addition, we have a preclinical research program directed at a second-generation ATR inhibitor, APR-354. Finally, we also have an early preclinical research program, which is aimed at identification of novel inhibitors of a distinct protein involved in DDR.
In addition to development of these drugs as single agents, we are evaluating potential expansion opportunities for our product candidates through twice a day administration (BID) as well as combination with other agents such as poly (ADP-ribose) polymerase inhibitors, or PARPi, where we believe a combination of therapeutic agents may enhance synthetic lethality. We are also evaluating combination opportunities within our pipeline, including research on the combination of ATRN-119 and ATRN-1051 that is supported by a Phase II SBIR grant from the National Cancer Institute.
Prior to the acquisition of Atrin, we were engaged in the clinical development of cancer therapeutics that reactivate the mutant p53 tumor suppressor protein. Our lead product candidate was APR-246, or eprenetapopt. Following our failed pivotal Phase 3 trial in December 2020, we engaged in a thorough evaluation of strategic options leading to the acquisition of Atrin and shifting our focus to the Atrin assets.
We do not currently have any ongoing preclinical studies or clinical trials involving our reactivators of mutant p53 and our primary focus is on the discovery and development of molecules targeting DDR pathways in oncology through synthetic lethality.
We have assembled a team with extensive experience in the discovery, development and commercialization of oncology drugs to support our mission of developing novel synthetic lethality-based cancer therapeutics.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We may take advantage of certain exemptions from various public company reporting requirements, including not being required to have our internal control over financial reporting audited by our independent registered public accounting firm under Section 404 of the Sarbanes-Oxley Act of 2002 reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute payments. We may take advantage of these exemptions until December 31, 2024 or until we are no longer an “emerging growth company,” whichever is earlier. We will cease to be an emerging growth company prior to the end of such period if certain earlier events occur, including if we become a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or Exchange Act, our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion of non-convertible debt in any three-year period.
In addition, 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. This provision allows an emerging growth company to delay the adoption of accounting standards that have different effective dates for public and private companies until those standards would otherwise apply to private companies. We have not elected to avail ourselves of this exemption and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not “emerging growth companies.”
We are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller reporting companies and will be able to take advantage of these scaled disclosures for so long as our voting and non-voting common stock held by non-affiliates is less than $250.0 million measured on the last business day of our second fiscal quarter, or our annual revenue is less than $100.0 million during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is less than $700.0 million measured on the last business day of our second fiscal quarter.
Corporate Information
Our principal executive offices are located at 3805 Old Easton Road, Doylestown, Pennsylvania 18902, and our telephone number is (617) 463-9385. Our website address is www.aprea.com. The information contained on or accessible through our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our common stock.
Our filings with the SEC are posted on our website at www.aprea.com. Other than the specifically incorporated SEC filings, the information found on or accessible through our website is not part of this or any other report we file with or furnish to the SEC. The public can also obtain copies of these filings by accessing the SEC’s website at http://www.sec.gov.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Except as described in any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities offered hereby for general corporate purposes, including working capital, operating expenses and capital expenditures. We may also use a portion of the net proceeds to acquire or invest in businesses and products that are complementary to our own, although we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. We intend to invest the net proceeds to us from the sale of securities offered hereby that are not used as described above in short-term, investment-grade, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
The following description is a general summary of the terms of the shares of common stock or shares of preferred stock that we may issue. The description below and in any prospectus supplement does not include all of the terms of the shares of common stock or shares of preferred stock and should be read together with our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, copies of which have been filed previously with the SEC. For more information on how you can obtain copies of our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, see “Where You Can Find More Information.”
General
Our charter authorizes us to issue up to 400,000,000 shares of common stock, par value $0.001 per share, and 40,000,000 shares of preferred stock, par value $0.001 per share. The following summary sets forth some of the general terms of our common stock. Because this is a summary, it does not contain all of the information that may be important to you. For a more detailed description of our common stock, you should read our amended and restated certificate of incorporation and the amended and restated bylaws, each of which is an exhibit to our Annual Report on Form 10-K to which this summary is also an exhibit, and the applicable provisions of the Delaware General Corporation Law (the “DGCL”).
Common stock
As of November 9, 2023, we had outstanding 3,736,673 shares of common stock.
Voting Rights
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors by our stockholders will be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Other matters shall be decided by the affirmative vote of our stockholders having a majority in voting power of the votes cast by the stockholders present or represented and voting on such matter, except as otherwise disclosed below.
Dividends
Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend rights of outstanding preferred stock.
Liquidation
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately all assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights.
Rights and Preferences
The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred stock
Our board of directors is authorized to issue shares of preferred stock in one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. You should refer to the applicable certificate of designation for complete information regarding a series of preferred stock to be issued under this prospectus and the applicable prospectus supplement.
The purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of our outstanding voting stock. As of September 30, 2023, there were 56,227 shares of Series A Preferred Stock outstanding. We have no present plans to issue any additional shares of preferred stock.
Anti-Takeover effects of Delaware law and our charter and bylaws
Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring or discouraging another party from acquiring control of us. These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors.
Staggered board; removal of directors
Our certificate of incorporation and bylaws divides our board of directors into three classes with staggered three-year terms. In addition, a director may only be removed for cause and only by the affirmative vote of the holders of a majority of the votes that all of our stockholders would be entitled to cast in an annual election of directors. Any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, will only be able to be filled by vote of a majority of our directors then in office. The classification of our board of directors and the limitations on the removal of directors and filling of vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of our company.
Stockholder action by written consent; special meetings
Our certificate of incorporation provides that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Our certificate of incorporation and bylaws also provide that, except as otherwise required by law, special meetings of our stockholders can only be called by our chairman of the board, our Chief Executive Officer or our board of directors.
Advance notice requirements for stockholder proposals
Our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to our board of directors. Stockholders at an annual meeting are only able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board of directors or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting securities.
Delaware business combination statute
We are subject to Section 203 of the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Amendment of certificate of incorporation and bylaws
DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of the holders of at least 75% of the votes that all of our stockholders would be entitled to cast in any annual election of directors. In addition, the affirmative vote of the holders of at least 75% of the votes that all of our stockholders would be entitled to cast in any annual election of directors is required to amend or repeal or to adopt any provisions inconsistent with any of the provisions of our certificate of incorporation described above under “Staggered board; removal of directors” and “Stockholder action by written consent; special meetings.”
Exclusive forum selection
Our certificate of incorporation provides, unless we consent in writing to the selection of an alternative forum, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of our company under Delaware law, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or employees to our company or our stockholders, (3) any action asserting a claim against our company arising pursuant to any provision of the DGCL or our certificate of incorporation or bylaws, (4) any action asserting a claim against our company governed by the internal affairs doctrine or (5) any other action asserting an “internal corporate claim,” as defined in Section 115 of the DGCL. These exclusive-forum provisions do not currently apply to claims under the Securities Act of 1933, as amended, or the Exchange Act. Any person or entity purchasing or otherwise acquiring any interest in our securities shall be deemed to have notice of and consented to this provision. Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against us or our directors and officers.
Listing on The Nasdaq Capital Market
Our common stock is listed on The Nasdaq Capital Market under the symbol “APRE.”
Authorized but unissued shares
The authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing requirements of The Nasdaq Capital Market. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Transfer agent and registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. The transfer agent and registrar’s address is 150 Royall St., Canton, MA 02021.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares of our common stock, shares of our preferred stock or debt securities. The following description sets forth certain general terms and provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent, if any, to which the general terms and provisions may apply to the warrants so offered will be described in the applicable prospectus supplement.
Warrants may be issued independently or together with other securities and 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 a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
A copy of the forms of the warrant agreement and the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the warrant agreement and the related warrant certificate, see “Where You Can Find More Information.”
Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue shares of our common stock or shares of our preferred stock will describe the terms of the common share warrants and preferred share warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the shares of common stock or shares of preferred stock that may be purchased upon exercise of the warrants;
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the terms for changes or adjustments to the exercise price of the warrants;
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if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security;
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if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the number of shares of common stock or shares of preferred stock that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise;
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the dates on which the right to exercise the warrants commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material U.S. Federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to issue debt securities will describe the terms of those warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the debt securities purchasable upon exercise of the warrants;
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the terms for changes or adjustments to the exercise price of the warrants;
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if applicable, the designation and terms of the debt securities that the warrants are issued with and the number of warrants issued with each debt security;
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if applicable, the date from and after which the warrants and any debt securities issued with them will be separately transferable;
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the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which the debt securities may be purchased upon exercise;
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the dates on which the right to exercise the warrants will commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form;
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information relating to book-entry procedures, if any;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material U.S. Federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the number of shares of common stock, shares of preferred stock or the principal amount of debt securities being offered. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase our shares of common stock, shares of preferred stock or debt securities, the holder will not have any rights as a holder of our shares of common stock, shares of preferred stock or debt securities, as the case may be, by virtue of ownership of warrants.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the terms of debt securities we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities.
As required by Federal law for all bonds and notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture.” We have summarized the general features of the debt securities to be governed by the indenture. The summary is not complete. An indenture is a contract between us and a financial institution acting as trustee on behalf of the holders of the debt securities and is subject to and governed by the Trust Indenture Act of 1939, as amended. The trustee has two main roles. First, the trustee can enforce holders’ rights against us if we default. There are some limitations on the extent to which the trustee acts on holders’ behalf, described in the second paragraph under “Description of Debt Securities — Events of Default.” Second, the trustee performs certain administrative duties, such as sending interest and principal payments to holders.
Because this section is a summary, it does not describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you to read the applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because it, and not this description, will define the rights of holders of such debt securities.
A prospectus supplement will describe the particular terms of any series of debt securities we may issue, including some or all of the following:
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the designation, ranking, or title of the series of debt securities;
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the total principal amount of the series of debt securities, the denominations in which the offered debt securities will be issued and whether the offering may be reopened for additional securities of that series and on what terms;
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the percentage of the principal amount at which the series of debt securities will be offered;
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the date or dates on which principal will be payable;
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the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any;
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the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable;
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the terms for redemption, extension or early repayment, if any;
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the currencies in which the series of debt securities are issued and payable;
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whether the amount of payments of principal, interest or premium, if any, on a series of debt securities will be determined with reference to an index, formula or other method and how these amounts will be determined;
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the place or places of payment, transfer, conversion and/or exchange of the debt securities;
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the provision for any sinking fund;
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any restrictive covenants;
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events of default and any addition to, deletion of or change to the events of default;
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whether the series of debt securities are issuable in certificated form;
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any provisions for legal defeasance or covenant defeasance;
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whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (and the terms of this option);
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any provisions for convertibility or exchangeability of the debt securities into or for any other securities;
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whether the debt securities are subject to subordination and the terms of such subordination;
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any listing of the debt securities on any securities exchange;
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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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if applicable, a discussion of material U.S. Federal income tax considerations, including those related to original issue discount, if applicable; and
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any other material terms.
The debt securities may be secured or unsecured obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be paid by us in immediately available funds.
General
The indenture may provide that any debt securities proposed to be sold under this prospectus and the applicable prospectus supplement relating to such debt securities (“offered debt securities”) and any debt securities issuable upon conversion or exchange of other offered securities (“underlying debt securities”) may be issued under the indenture in one or more series.
For purposes of this prospectus, any reference to the payment of principal of, or interest or premium, if any, on, debt securities will include additional amounts if required by the terms of the debt securities.
Debt securities issued under an indenture, when a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.” The indenture may also provide that there may be more than one trustee thereunder, each with respect to one or more different series of securities issued thereunder. See “Description of Debt Securities — Resignation of Trustee” below. At a time when two or more trustees are acting under an indenture, each with respect to only certain series, the term “indenture securities” means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee under an indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to the one or more series of indenture securities for which it is trustee. If two or more trustees are acting under an indenture, then the indenture securities for which each trustee is acting would be treated as if issued under separate indentures.
We refer you to the applicable prospectus supplement relating to any debt securities we may issue from time to time for information with respect to any deletions from, modifications of or additions to the Events of Default or covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection, that will be applicable with respect to such debt securities.
We have the ability to issue indenture securities with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen a previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening was restricted when that series was created.
Conversion and Exchange
If any debt securities are convertible into or exchangeable for other securities, the related prospectus supplement will explain the terms and conditions of the conversion or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in the prospectus supplement.
Payment and Paying Agents
We will pay interest to the person listed in the applicable trustee’s records as the owner of the debt security at the close of business on a particular day in advance of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, often approximately two weeks in advance of the interest due date, is called the “record date.” Because we will pay all the interest for an interest period to the holders on the record date, holders buying and selling debt securities must work out between themselves the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller based on their respective ownership periods within the particular interest period. This prorated interest amount is called “accrued interest.”
Events of Default
Holders of debt securities of any series will have rights if an Event of Default occurs in respect of the debt securities of such series and is not cured, as described later in this subsection. The term “Event of Default” in respect of the debt securities of any series means any of the following:
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we do not pay the principal of, or any premium on, a debt security of the series on its due date;
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we do not pay interest on a debt security of the series within 30 days of its due date;
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we remain in breach of a covenant in respect of debt securities of the series for 90 days after we receive a written notice of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the principal amount of debt securities of the series;
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we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; and
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any other Event of Default occurs in respect of debt securities of the series described in the prospectus supplement.
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the same or any other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal, premium or interest, if it considers the withholding of notice to be in the best interests of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has occurred and has not been cured or waived (other than in the case of a bankruptcy proceeding), the trustee or the holders of not less than 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of a majority in principal amount of the debt securities of the affected series if the default is cured or waived and certain other conditions are satisfied.
Except in cases of default, where the trustee has some special duties, the trustee typically is not required to take any action under an indenture at the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”). If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee may refuse to follow those directions in certain circumstances.
Before a holder is allowed to bypass the trustee and bring its own lawsuit or other formal legal action or take other steps to enforce its rights or protect its interests relating to any debt securities, the following must occur:
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the holder must give the trustee written notice that an Event of Default has occurred and remains uncured;
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the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action;
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the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and
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the holders of a majority in principal amount of the debt securities must not have given the trustee a direction inconsistent with the above notice during that 60-day period.
However, a holder is entitled at any time to bring a lawsuit for the payment of money due on its debt securities on or after the due date. Each year, we will furnish to each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture and the debt securities, or else specifying any default.
Waiver of Default
The holders of a majority in principal amount of the relevant series of debt securities may waive a default for all such series of debt securities. If this happens, the default will be treated as if it had not occurred. No one can waive a payment default on a holder’s debt security, however, without the holder’s approval.
Merger or Consolidation
Under the terms of an indenture, we may be permitted to consolidate or merge with another entity. We may also be permitted to sell all or substantially all of our assets to another entity. However, typically we may not take any of these actions unless all the following conditions are met:
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if we do not survive such transaction or we convey, transfer or lease our properties and assets substantially as an entirety, the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible for our debt securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia, the new company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for service of process;
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alternatively, we must be the surviving company;
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immediately after the transaction no Event of Default will exist;
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we must deliver certain certificates and documents to the trustee; and
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we must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities.
Modification or Waiver
There are three types of changes we may make to an indenture and the debt securities issued thereunder.
Changes Requiring Approval
First, there are changes that we cannot make to debt securities without specific approval of all of the holders. The following is a list of the types of changes that may require specific approval:
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change the stated maturity of the principal of or rate of interest on a debt security;
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reduce any amounts due on a debt security;
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reduce the amount of principal payable upon acceleration of the maturity of a security following a default;
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at any time after a change of control has occurred, reduce any premium payable upon a change of control;
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change the place or currency of payment on a debt security (except as otherwise described in the prospectus or prospectus supplement);
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impair the right of holders to sue for payment;
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adversely affect any right to convert or exchange a debt security in accordance with its terms;
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture;
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults;
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modify any other aspect of the provisions of the indenture dealing with supplemental indentures, modification and waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and
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change any obligation we have to pay additional amounts.
Changes Not Requiring Approval
The second type of change does not require any vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that would not adversely affect holders of the outstanding debt securities in any material respect, including the addition of covenants. We also do not need any approval to make any change that affects only debt securities to be issued under the indenture after the change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture and the debt securities may require the following approval:
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if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount of that series; and
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if the change affects more than one series of debt securities issued under the same indenture, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose.
The holders of a majority in principal amount of all of the series of debt securities issued under an indenture, voting together as one class for this purpose, may waive our compliance obligations with respect to some of our covenants in that indenture. However, we cannot obtain a waiver of a payment default or of any of the matters covered by the bullet points included above under “Description of Debt Securities — Modification or Waiver — Changes Requiring Approval.”
Defeasance
The following provisions will be applicable to each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance and legal defeasance will not be applicable to that series.
Covenant Defeasance
We can make the deposit described below and be released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called “covenant defeasance.” In that event, the holders would lose the protection of those restrictive covenants but would gain the protection of having money and government securities set aside in trust to repay holders’ debt securities. If applicable, a holder also would be released from the subordination provisions described under “Description of Debt Securities — Indenture Provisions — Subordination” below. In order to achieve covenant defeasance, we must do the following:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
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We may be required to deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. Federal income tax law, we may make the above deposit without causing the beneficial
owners of the debt securities to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity; and
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We must deliver to the trustee certain documentation stating that all conditions precedent to covenant defeasance have been complied with.
If we accomplish covenant defeasance, holders can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities became immediately due and payable, there might be a shortfall. Depending on the event causing the default, holders may not be able to obtain payment of the shortfall.
Legal Defeasance
As described below, we can legally release ourselves from all payment and other obligations on the debt securities of a particular series (called “legal defeasance”), (1) if there is a change in U.S. Federal tax law that allows us to effect the release without causing the holders to be taxed any differently than if the release had not occurred, and (2) if we put in place the following other arrangements for holders to be repaid:
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If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates;
We may be required to deliver to the trustee a legal opinion confirming that there has been a change in current U.S. Federal tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing the beneficial owners of the debt securities to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity. Under current U.S. Federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid each beneficial owner its share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for its debt securities and beneficial owners would recognize gain or loss on the debt securities at the time of the deposit; and
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We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions precedent to legal defeasance have been complied with.
If we ever did accomplish legal defeasance, as described above, holders would have to rely solely on the trust deposit for repayment of the debt securities. Holders could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our lenders and other creditors if we ever became bankrupt or insolvent. If applicable, holders would also be released from the subordination provisions described later under “Description of Debt Securities — Indenture Provisions — Subordination.”
Resignation of Trustee
Each trustee may resign or be removed with respect to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to such series. In the event that two or more persons are acting as trustee with respect to different series of indenture securities under the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions — Subordination
Upon any distribution of our assets upon our dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture in right of payment to the prior payment in full of all Senior Indebtedness (defined below), but our obligation to holders to make payment of the principal of (and premium, if any) and interest on such subordinated debt securities will not otherwise be affected. In addition, no payment on account of principal (or premium, if any),
interest or sinking fund, if any, may be made on such subordinated debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any), interest and sinking fund, if any, on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment from us is received by the trustee in respect of subordinated debt securities or by the holders of any of such subordinated debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the holders of the Senior Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has been paid in full, after giving effect to any concurrent payment or distribution to the holders of the Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness, the holders of such subordinated debt securities will be subrogated to the rights of the holders of the Senior Indebtedness to the extent of payments made to the holders of the Senior Indebtedness out of the distributive share of such subordinated debt securities.
By reason of this subordination, in the event of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated debt securities. The related indenture will provide that these subordination provisions will not apply to money and securities held in trust under the defeasance provisions of the indenture.
“Senior Indebtedness” will be defined in an applicable indenture as the principal of (and premium, if any) and unpaid interest on:
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our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness is not senior or prior in right of payment to the subordinated debt securities; and
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renewals, extensions, modifications and refinancings of any of such indebtedness.
The prospectus supplement accompanying any series of indenture securities denominated as subordinated debt securities will set forth the approximate amount of our Senior Indebtedness outstanding as of a recent date.
Trustee
We intend to name the indenture trustee for each series of indenture securities in the related prospectus supplement.
Certain Considerations Relating to Foreign Currencies
Debt securities denominated or payable in foreign currencies may entail significant risks. These risks include the possibility of significant fluctuations in the foreign currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market. These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
The following is a general description of the terms of the rights we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular terms of any rights we offer will be described in the prospectus supplement relating to such rights.
General
We may issue rights to purchase common stock, preferred stock, debt securities or units. Rights may be issued independently or together with other securities and may or may not be transferable by the person purchasing or receiving the rights. In connection with any rights offering to our stockholders, we may enter into a standby underwriting, backstop or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. In connection with a rights offering to our stockholders, we would distribute certificates evidencing the rights and a prospectus supplement to our stockholders on or about the record date that we set for receiving rights in such rights offering.
The applicable prospectus supplement will describe the following terms of any rights we may issue, including some or all of the following:
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the title and aggregate number of the rights;
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the subscription price or a formula for the determination of the subscription price for the rights and the currency or currencies in which the subscription price may be payable;
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if applicable, the designation and terms of the securities with which the rights are issued and the number of rights issued with each such security or each principal amount of such security;
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the number or a formula for the determination of the number of the rights issued to each stockholder;
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the extent to which the rights are transferable;
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in the case of rights to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one right;
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in the case of rights to purchase common stock or preferred stock, the type of stock and number of shares of stock purchasable upon exercise of one right;
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the date on which the right to exercise the rights will commence, and the date on which the rights will expire (subject to any extension);
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if applicable, the minimum or maximum amount of the rights that may be exercised at any one time;
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the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the procedures for adjusting the subscription price and number of shares of common stock or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock;
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the effect on the rights of any merger, consolidation, sale or other disposition of our business;
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the terms of any rights to redeem or call the rights;
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information with respect to book-entry procedures, if any;
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the terms of the securities issuable upon exercise of the rights;
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if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement that we may enter into in connection with the rights offering;
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if applicable, a discussion of material U.S. Federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights.
Exercise of Rights
Each right will entitle the holder to purchase for cash or other consideration such shares of stock or principal amount of securities at the subscription price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the rights offered thereby. Rights may be exercised as set forth in the applicable prospectus supplement beginning on the date specified therein and continuing until the close of business on the expiration date set forth in the prospectus supplement relating to the rights offered thereby. After the close of business on the expiration date, unexercised rights will become void.
Upon receipt of payment and a subscription certificate properly completed and duly executed at the corporate trust office of the subscription agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all of the rights represented by such subscription certificate are exercised, a new subscription certificate will be issued for the remaining rights. If we so indicate in the applicable prospectus supplement, holders of the rights may surrender securities as all or part of the exercise price for rights.
We may determine to offer any unsubscribed offered securities directly to stockholders, persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting, backstop or other arrangements, as set forth in the applicable prospectus supplement.
Prior to exercising their rights, holders of rights will not have any of the rights of holders of the securities purchasable upon subscription, including, in the case of rights to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights or, in the case of rights to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture.
DESCRIPTION OF UNITS
We may issue units comprising one or more securities described in this prospectus in any combination. The following description sets forth certain general terms and provisions of the units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the following:
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the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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whether the units will be issued in fully registered or global form.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus in any one or more of the following ways from time to time:
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to or through one or more underwriters, brokers or dealers;
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through agents to investors or the public;
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in short or long transactions;
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through put or call option transactions relating to our common stock;
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directly to agents or other purchasers;
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in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
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though a combination of any such methods of sale; or
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through any other method described in the applicable prospectus supplement.
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing securityholders. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
The distribution of the securities may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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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; or
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at negotiated prices.
The applicable prospectus supplement will set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
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the terms of the offering;
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the names of any underwriters, dealers or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities and the proceeds to us from the sale;
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any over-allotment options under which the underwriters may purchase additional shares of common stock from us;
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any underwriting discounts, concessions, commissions or agency fees and other items constituting compensation to underwriters, dealers or agents;
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any delayed delivery arrangements;
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any public offering price;
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any discounts or concessions allowed or re-allowed or paid by underwriters or dealers to other dealers; or
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any securities exchange or market on which the common stock offered in the prospectus supplement may be listed.
If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account for resale to the public, either on a firm commitment basis or a best efforts basis. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities hereunder, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for sale is reached. Unless we inform you otherwise in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions. We may change from time to time any public offering price and any discounts or concessions the underwriters allow or pay to dealers.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise or the securities are sold by us to an underwriter in a firm commitment underwritten offering. The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
Some or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used for the sale of securities, we, or an underwriter, will sell the securities to them as principals. The dealers may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the applicable prospectus supplement the names of the dealers and the terms of the transaction.
We may also sell the securities through agents designated from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly in transactions not involving underwriters, dealers or agents.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the applicable securities laws.
Underwriters, dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses for which they may receive customary fees and reimbursement of expenses.
We may use underwriters with whom we have a material relationship. We will describe the nature of such relationship in the applicable prospectus supplement.
Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
We may enter into hedging transactions with broker-dealers and the broker-dealers may engage in short sales of the securities in the course of hedging the positions they assume with us, including, without limitation, in connection with distributions of the securities by those broker-dealers. We may enter into option or other transactions with broker-dealers that involve the delivery of the securities offered hereby to the broker-dealers, who may then resell or otherwise transfer those securities. We may also loan or pledge the securities offered hereby to a broker-dealer and the broker-dealer may sell the securities offered hereby so loaned or upon a default may sell or otherwise transfer the pledged securities offered hereby.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon for us by DLA Piper LLP (US), Philadelphia, Pennsylvania.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2022, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the securities offered by this prospectus and any applicable prospectus supplement. This prospectus and any applicable prospectus supplement do not contain all of the information set forth in the registration statement and its exhibits and schedules in accordance with SEC rules and regulations. For further information with respect to us and the securities being offered by this prospectus and any applicable prospectus supplement, you should read the registration statement, including its exhibits and schedules. Statements contained in this prospectus and any applicable prospectus supplement, including documents that we have incorporated by reference, as to the contents of any contract or other document referred to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit to the registration statement or any other such document, each such statement is qualified in all respects by reference to the corresponding exhibit. You should review the complete contract or other document to evaluate these statements. You may obtain copies of the registration statement and its exhibits via the SEC’s website at http://www.sec.gov.
We file annual, quarterly and current reports, proxy statements and other documents with the SEC under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”). The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers, including us, that file electronically with the SEC. You may obtain documents that we file with the SEC at http://www.sec.gov. We also make these documents available on our website at www.aprea.com. Our website and the information contained or accessible through our website is not incorporated by reference in this prospectus or any prospectus supplement, and you should not consider it part of this prospectus or any prospectus supplement.
INFORMATION INCORPORATED BY REFERENCE
SEC rules permit us to incorporate information by reference in this prospectus and any applicable prospectus supplement. This 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 considered to be part of this prospectus and any applicable prospectus supplement, except for information superseded by information contained in this prospectus or any applicable prospectus supplement itself or in any subsequently filed incorporated document. This prospectus and any applicable prospectus supplement incorporate by reference the documents set forth below that we have previously filed with the SEC, other than information in such documents that is deemed to be furnished and not filed. These documents contain important information about us and our business and financial condition.
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Current Reports on Form 8-K, filed with the SEC on January 30, 2023, February 13, 2023, February 24, 2023, March 30, 2023, April 18, 2023, May 8, 2023, May 15, 2023 (other than the information furnished pursuant to Item 2.02), July 5, 2023, August 10, 2023 (other than the information furnished pursuant to Item 2.02), August 24, 2023, September 11, 2023, October 13, 2023, October 16, 2023, November 9, 2023 (other than the information furnished pursuant to Item 2.02) and January 4, 2024; and
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All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of which this prospectus is a part and prior to the effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, and any previously filed documents. All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination of the offering of any of the securities covered under this prospectus shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, the applicable prospectus supplement and any previously filed documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement shall be deemed to be modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or such applicable prospectus supplement.
You can obtain any of the filings incorporated by reference into this prospectus or any applicable prospectus supplement through us or from the SEC through the SEC’s website at http://www.sec.gov. Upon request, we will provide, without charge, a copy of any or all of the reports and documents referred to above which have been incorporated by reference into this prospectus or any applicable prospectus supplement. Prospective investors may obtain documents incorporated by reference in this prospectus or any applicable prospectus supplement by requesting them in writing or by telephone from us at our executive offices at:
Aprea Therapeutics, Inc.
3805 Old Easton Road
Doylestown, PA 18902
(617) 463-9385
Our reports and documents incorporated by reference herein may also be found in the “Investor Relations” section of our website at www.aprea.com. The content of our website and any information that is linked to or accessible from our website (other than our filings with the SEC that are incorporated by reference, as set forth under “Incorporation of Certain Documents by Reference”) is not incorporated by reference into this prospectus or any applicable prospectus supplement and you should not consider it a part of this prospectus, any applicable prospectus supplement, or the registration statement.
$150,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights to Purchase Common Stock, Preferred Stock,
Debt Securities or Units
Units
, 2024
PROSPECTUS
The information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any state or jurisdiction where such offer or sale is not permitted.
Subject to Completion, Dated January 26, 2024
Up to $1,000,000
Common Stock
We have entered into an At The Market Offering Agreement (the “sales agreement”) with H.C. Wainwright & Co., LLC (“Wainwright”) relating to shares of our common stock, par value $0.001 per share, offered by this prospectus supplement and the accompanying prospectus. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $1,000,000 from time to time through Wainwright acting as our agent.
Our common stock is listed on The Nasdaq Capital Market under the symbol “APRE”. On January 25, 2024, the last reported sale price of our common stock on The Nasdaq Capital Market was $5.50 per share.
Sales of our common stock, if any, under this this prospectus supplement and the accompanying prospectus will be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Wainwright is not required to sell any specific amount of securities, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually agreed terms between Wainwright and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to Wainwright for sales of common stock sold pursuant to the sales agreement will be an amount equal to 3% of the gross proceeds of any shares of common stock sold under the sales agreement. In connection with the sale of the common stock on our behalf, Wainwright will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Wainwright will be deemed to be underwriting commissions or discounts. See “Plan of Distribution” beginning on page S-15 for additional information regarding the compensation to be paid to Wainwright. We have also agreed to provide indemnification and contribution to Wainwright with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
As of January 25, 2024, the aggregate market value of our common stock held by our non-affiliates pursuant to General Instruction I.B.6 of Form S-3, or public float, was $19,685,702, based on 3,164,904 shares of outstanding common stock held by non-affiliates as of such date and a price of $6.22 per share, which was the last reported sale price of our common stock on the Nasdaq Capital Market on January 9, 2024. We have offered or sold $5,521,926 of securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on and includes the date of this prospectus (excluding this offering). Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in a registered offering with a value exceeding more than one-third of our “public float” (the market value of our common stock held by our non-affiliates) in any 12-month period so long as our public float remains below $75.0 million
We are an “emerging growth company” and a “smaller reporting company” under federal securities laws and as such, have elected to comply with reduced public company reporting requirements for this prospectus and the documents incorporated by reference herein and may elect to comply with reduced public company reporting requirements in future filings. See “Summary — Implications of Being an Emerging Growth Company and Smaller Reporting Company.”
Our business and an investment in our common stock involve significant risks. These risks are described under the caption “Risk Factors” beginning on page S-6 of this prospectus and in the documents incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
H.C. Wainwright & Co.
, 2024
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”). Under the shelf registration process, we may offer shares of our common stock having an aggregate offering price of up to $1,000,000 from time to time under this prospectus and the accompanying base prospectus at prices and on terms to be determined by market conditions at the time of the offering.
We provide information to you about this offering of shares of our common stock in two separate documents that are bound together: (1) this At The Market Offering Agreement prospectus, 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 At The Market Offering Agreement prospectus is inconsistent with the accompanying base prospectus, you should rely on this prospectus. However, if any statement in one of these documents is inconsistent with a statement in another document having a later date — for example, a document incorporated by reference in this prospectus — the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.
You should rely only on the information contained in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize for use in connection with this offering. We have not, and Wainwright has not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and Wainwright is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any free writing prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation by Reference.”
We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
In this prospectus, the terms “Aprea,” “Company,” “we,” “us,” “our” and similar terms refer to Aprea Therapeutics, Inc., a Delaware corporation, and its subsidiaries unless the context otherwise requires.
This prospectus and the information incorporated herein by reference include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and trade names included or incorporated by reference in this prospectus are the property of their respective owners.
MARKET DATA
This prospectus and the documents incorporated by reference herein include market and industry data and forecasts concerning our business and the markets for certain cancers, including data regarding the estimated size of those markets and the incidence and prevalence of certain medical conditions, that we have derived from independent consultant reports, publicly available information, various industry, medical and general publications, other published industry sources, government data and our internal data and estimates. Independent consultant reports, industry publications and other published industry sources generally indicate that the information contained therein was obtained from sources believed to be reliable. Our internal data and estimates are based upon information obtained from trade and business organizations and other contacts in the markets in which we operate and our management’s understanding of industry conditions.
PROSPECTUS SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in the securities covered by this prospectus. For a more complete understanding of Aprea and this offering, we encourage you to read and consider carefully the more detailed information in this prospectus, including the information incorporated by reference in this prospectus and the information included in any free writing prospectus that we have authorized for use in connection with this offering, including the information referred to under the heading “Risk Factors” in this prospectus beginning on page S-6.
Overview
We are a clinical-stage biopharmaceutical company focused on precision oncology through synthetic lethality. Our approach is built upon a platform of integrated discovery technologies to enrich our pipeline with novel targets in synthetic lethality and cancer treatment. Together with our expertise in small molecule drug discovery, we are applying the capabilities of our discovery platform to the development of new precision oncology therapies and the identification of patient populations most likely to benefit.
On May 16, 2022, we acquired Atrin Pharmaceuticals Inc. (“Atrin”), in accordance with the terms of the Agreement and Plan of Merger dated May 16, 2022 (the “Merger Agreement”), by and among us, ATR Merger Sub I Inc., a Delaware corporation and our wholly owned subsidiary (“First Merger Sub”), ATR Merger Sub II LLC, a Delaware limited liability company and wholly owned subsidiary of Aprea (“Second Merger Sub”) and Atrin. Pursuant to the Merger Agreement, First Merger Sub merged with and into Atrin, pursuant to which Atrin was the surviving corporation and became a wholly owned subsidiary of Aprea (the “First Merger”). Immediately following the First Merger, Atrin merged with and into the second Merger Sub, pursuant to which Second Merger Sub was the surviving entity. The former Atrin business is now our business.
We believe that synthetic lethality has the potential to impact patients’ lives and treatment strategies for a wide range of cancer types. When a gene in the DNA damaged response (“DDR”) pathway is damaged or fails, related genes make up for its loss of function. Our approach is to inhibit these genes, thereby specifically killing cancer cells with specific mutations. This approach is called synthetic lethality. Using synthetic lethality, our product candidates are designed to selectively kill cancer cells while minimizing the effect on normal, unmutated cells, decreasing the toxicity normally associated with cancer treatment. We aspire to become a leader in this emerging field and are establishing a pipeline of clinical and preclinical programs that we believe may have broad application to cancer treatment.
Our most advanced synthetic lethality product candidate is ATRN-119, a clinical-stage small molecule inhibitor of ataxia telangiectasia and Rad3-related, or ATR, a kinase that plays a critical role in DDR. ATR is one of several key regulators of the response to defective DNA replication and DNA damage, which occurs more commonly in cancer cells than in normal cells. We are enrolling patients into a Phase 1/2a clinical trial to evaluate ATRN-119 under an investigational new drug application, or IND. The first four dose cohorts have been completed, and patients with advanced solid tumors having mutations in defined DDR-related genes continue to be enrolled into additional cohorts of the Phase 1 dose escalation part of the trial. The primary endpoint of this Phase 1 part is to evaluate the tolerability and pharmacokinetics of ATRN-119 when administered orally on a continuous, once-daily schedule. We anticipate ATRN-119 tolerability and pharmacokinetic data from Phase 1 to be available in the second half of 2024.
We have several additional, wholly owned preclinical synthetic lethality programs. We are targeting WEE1, a kinase that is a key regulator of multiple phases of the cell cycle. Our lead WEE1 inhibitor product candidate is ATRN-1051, and we anticipate clearance of the IND for ATRN-1051 by the end of the first quarter of 2024. In addition, we have a preclinical research program directed at a second-generation ATR inhibitor, APR-354. Finally, we also have an early preclinical research program, which is aimed at identification of novel inhibitors of a distinct protein involved in DDR.
In addition to development of these drugs as single agents, we are evaluating potential expansion opportunities for our product candidates through twice a day administration (BID) as well as combination
with other agents such as poly (ADP-ribose) polymerase inhibitors, or PARPi, where we believe a combination of therapeutic agents may enhance synthetic lethality. We are also evaluating combination opportunities within our pipeline, including research on the combination of ATRN-119 and ATRN-1051 that is supported by a Phase II SBIR grant from the National Cancer Institute.
Prior to the acquisition of Atrin, we were engaged in the clinical development of cancer therapeutics that reactivate the mutant p53 tumor suppressor protein. Our lead product candidate was APR-246, or eprenetapopt. Following our failed pivotal Phase 3 trial in December 2020, we engaged in a thorough evaluation of strategic options leading to the acquisition of Atrin and shifting our focus to the Atrin assets. We do not currently have any ongoing preclinical studies or clinical trials involving our reactivators of mutant p53 and our primary focus is on the discovery and development of molecules targeting DDR pathways in oncology through synthetic lethality.
We have assembled a team with extensive experience in the discovery, development and commercialization of oncology drugs to support our mission of developing novel synthetic lethality-based cancer therapeutics.
Implications of Being an Emerging Growth Company and Smaller Reporting Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We may take advantage of certain exemptions from various public company reporting requirements, including not being required to have our internal control over financial reporting audited by our independent registered public accounting firm under Section 404 of the Sarbanes-Oxley Act of 2002 reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and any golden parachute payments. We may take advantage of these exemptions until December 31, 2024 or until we are no longer an “emerging growth company,” whichever is earlier. We will cease to be an emerging growth company prior to the end of such period if certain earlier events occur, including if we become a “large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or Exchange Act, our annual gross revenues exceed $1.235 billion or we issue more than $1.0 billion of non-convertible debt in any three-year period.
In addition, 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. This provision allows an emerging growth company to delay the adoption of accounting standards that have different effective dates for public and private companies until those standards would otherwise apply to private companies. We have not elected to avail ourselves of this exemption and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not “emerging growth companies.”
We are also a “smaller reporting company” as defined in the Exchange Act. We may continue to be a smaller reporting company even after we are no longer an emerging growth company. We may take advantage of certain of the scaled disclosures available to smaller reporting companies and will be able to take advantage of these scaled disclosures for so long as our voting and non-voting common stock held by non-affiliates is less than $250.0 million measured on the last business day of our second fiscal quarter, or our annual revenue is less than $100.0 million during the most recently completed fiscal year and our voting and non-voting common stock held by non-affiliates is less than $700.0 million measured on the last business day of our second fiscal quarter.
Corporate Information
Our principal executive offices are located at 3805 Old Easton Road, Doylestown, PA 18902, and our telephone number is (617) 463-9385. Our website address is www.aprea.com. The information contained on or accessible through our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our common stock.
Our filings with the SEC are posted on our website at www.aprea.com. The information found on or accessible through our website is not part of this or any other report we file with or furnish to the SEC. The public can also obtain copies of these filings by accessing the SEC’s website at http://www.sec.gov.
The Offering
Common stock offered by us
Shares having an aggregate offering price of up to $1,000,000.
Common stock to be outstanding after this offering
Up to 3,918,491 shares, assuming the sale of $1,000,000 of shares at a sales price of $5.50 per share, which was the last reported sale price on The Nasdaq Capital Market on January 25, 2024. The actual number of shares issued and outstanding will vary depending on the sales price under this offering.
“At-the-market” offering that may be made from time to time through our sales agent, Wainwright. See “Plan of Distribution” on page S-15 of this prospectus.
Our management will retain broad discretion regarding the allocation and use of the net proceeds from this offering. We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including for preclinical studies and clinical trials and the advancement of our product candidates. See “Use of Proceeds” on page S-10 of this prospectus.
NASDAQ Capital Market symbol
“APRE”
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page S-6 of this prospectus and the other information included in, or incorporated by reference into, this prospectus for a discussion of certain factors that you should carefully consider before deciding to invest in shares of our common stock.
The number of shares of common stock shown above to be outstanding immediately following this offering is based on 3,736,673 shares outstanding as of September 30, 2023 and excludes:
•
28,112 shares of common stock issuable upon conversion of our outstanding Series A Preferred Stock.
This prospectus reflects and assumes no exercise of outstanding options or warrants.
RISK FACTORS
Investing in our securities involves risk. You should carefully consider the specific risks discussed or incorporated by reference into the applicable prospectus supplement, together with all the other information contained in the prospectus or incorporated by reference into this prospectus and the applicable prospectus supplement. You should also consider the risks, uncertainties and assumptions discussed under the caption “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2022 and in our Quarterly Reports on Form 10-Q for the periods ended March 31, June 30 and September 30, 2023, and in subsequent filings, which are incorporated by reference into this prospectus. These risk factors may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future or by a prospectus supplement relating to a particular offering of our securities. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose all or part of your investment.
Risks Relating to this Offering
Management will have broad discretion as to the use of the proceeds from this offering and may not use the proceeds effectively.
We cannot specify with certainty all of the particular uses of the net proceeds of this offering. Our management will have significant flexibility in applying the net proceeds from this offering, and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Investors may not agree with our decisions on the use of proceeds of this offering, and our use of the proceeds may not yield any return on your investment. 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 may use the net proceeds for purposes that may not improve our financial condition or market value. Our failure to apply the net proceeds of this offering effectively could impair our ability to pursue our growth strategy or could require us to raise additional capital. Pending their use, we intend to invest the net proceeds from the offering in investment-grade, interest-bearing instruments, such as money market accounts, certificates of deposit, commercial paper and guaranteed obligations of the U.S. government. These investments may not yield a favorable return to our stockholders.
Future sales of substantial amounts of our common stock, or the possibility that such sales could occur, could adversely affect the market price of our common stock.
We may issue up to $1.0 million of shares of common stock from time to time in this offering. The issuance from time to time of shares in this offering, as well as our ability to issue such shares in this offering, could have the effect of depressing the market price or increasing the market price volatility of our common stock.
It is not possible to predict the actual number of shares we will sell under the sales agreement, or the gross proceeds resulting from those sales.
Subject to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver a placement notice to the sales agent at any time throughout the term of the sales agreement. The number of shares that are sold through the sales agent after delivering a placement notice will fluctuate based on a number of factors, including the market price of the common stock during the sales period, the limits we set with the sales agent in any applicable placement notice, and the demand for our common stock during the sales period. Because the price per share of each share sold will fluctuate during the sales period, it is not currently possible to predict the number of shares that will be sold or the gross proceeds to be raised in connection with those sales.
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 they may experience different levels of dilution and different outcomes in their investment results. We will
have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold in this offering. In addition, there is no minimum or maximum sales price for shares to be sold in this offering. Investors may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the prices they paid.
You may experience immediate and substantial dilution.
If the offering price per share you pay in this offering exceeds the net tangible book value per share of our common stock, you will be immediately diluted to the extent of the difference between the amount you pay per share and the as adjusted net tangible book value per share of our common stock after giving effect to this offering. Assuming we sell an aggregate amount of $1.0 million in this offering at an assumed public offering price of $5.50 per share, the closing price per share of our common stock on The Nasdaq Capital Market on January 25, 2024, and after deducting commissions and estimated aggregate offering expenses payable by us, you would experience immediate dilution in net tangible book value of $0.16 per share, representing a difference between the assumed public offering price per share and our as adjusted net tangible book value per share after this offering. To the extent that outstanding options are exercised or outstanding restricted stock units vest and settle, investors purchasing our common stock in this offering may experience further dilution. See the section entitled “Dilution” for a more detailed illustration of the dilution you may incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock. We may not be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the price per share in this offering.
If securities or industry analysts fail to continue publishing research about our business, if they change their recommendations adversely or if our results of operations do not meet their expectations, our stock price and trading volume could decline.
The trading market for our common stock will be influenced by the research and reports that industry or securities analysts publish about us or our business. If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline. In addition, it is likely that in some future period our operating results will be below the expectations of securities analysts or investors. If one or more of the analysts who cover us downgrade our stock, or if our results of operations do not meet their expectations, our stock price could decline.
Because we do not intend to declare cash dividends on our shares of common stock in the foreseeable future, stockholders must rely on appreciation of the value of our common stock for any return on their investment.
We currently anticipate that we will retain future earnings for the development, operation and expansion of our business and do not anticipate declaring or paying any cash dividends in the foreseeable future. In addition, the terms of any existing or future debt agreements may preclude us from paying dividends. As a result, we expect that only appreciation of the price of our common stock, if any, will provide a return to investors in this offering for the foreseeable future.
FORWARD-LOOKING STATEMENTS
This prospectus includes and incorporates by reference “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. All statements other than statements of historical fact are “forward-looking statements” for purposes of this prospectus. In some cases, you can identify forward-looking statements by terminology such as “may,” “could,” “will,” “would,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “intend,” “predict,” “seek,” “contemplate,” “project,” “continue,” “potential,” “ongoing,” “goal,” or the negative of these terms or other comparable terminology. These forward-looking statements include, but are not limited to, statements about:
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our ability to continue to operate as an integrated company subsequent to our acquisition of Atrin Pharmaceuticals Inc.;
•
estimates of our expenses, capital requirements and our needs for additional financing;
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business interruptions, including delays in enrollment, patient follow-up and data collection of clinical trials, resulting from a public health emergency or pandemic;
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the prospects of our product candidates, all of which are still in development;
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outcome and results of ongoing or future preclinical studies and clinical trials of our product candidates;
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our expectations regarding our ability to identify, discover or acquire additional suitable product candidates;
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the design of our ongoing and planned clinical trials, including the sample size, trial duration, endpoint definition, event rate assumptions and eligibility criteria;
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our ability to enroll patients in clinical trials, to timely and successfully complete those trials and to receive necessary regulatory approvals;
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our expectations regarding the timing of initiation of data readout from our clinical trials;
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market acceptance or commercial success of any product candidate we develop and the degree of acceptance among physicians, patients, patient advocacy groups, healthcare payors and the medical community;
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our expectations regarding competition, potential market size, the size of the patient populations for our product candidates, if approved for commercial use, and market acceptance;
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our ability to obtain regulatory approval of our product candidates, and any restrictions, limitations and/or warnings in their labels, if approved;
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the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates;
•
potential claims relating to our intellectual property and third-party intellectual property;
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the duration of our intellectual property estate that will provide protection for our product candidates;
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developments relating to our competitors and our industry;
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our sales, marketing or distribution capabilities and our ability to commercialize our product candidates, if we obtain regulatory approval;
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current and future agreements with third parties in connection with conducting clinical trials, as well as the manufacturing of our product candidates;
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our expectations regarding the ability of our current contract manufacturing partners to produce our product candidates in the quantities and timeframe that we will require;
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our expectations regarding our future costs of goods;
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our ability to attract, retain and motivate key personnel and increase the size of our organization;
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our ability to establish collaborations in lieu of obtaining additional financing;
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the impact of government laws and regulations;
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our financial performance; and
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our expectations regarding the time during which we will be an emerging growth company under the JOBS Act or a smaller reporting company under the Exchange Act.
These statements relate to future events or to our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. In evaluating such forward-looking statements, you should specifically consider various factors that may cause actual results to differ materially from current expectations, including the risks outlined under the heading “Risk Factors” contained in this prospectus and any related free writing prospectus, and in any other documents incorporated herein or therein. Any forward-looking statement in this prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, results of operations, industry and future growth. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.
This prospectus and the documents incorporated by reference, may also contain estimates, projections and other information concerning our industry, our business and the markets for certain drugs, including data regarding the estimated size of those markets, their projected growth rates and the incidence of certain medical conditions. Information that is based on estimates, forecasts, projections or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless otherwise expressly stated, we obtained these industry, business, market and other data from reports, research surveys, studies and similar data prepared by third parties, industry, medical and general publications, government data and similar sources. In some cases, we do not expressly refer to the sources from which these data are derived.
USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sales proceeds of up to $1,000,000 from time to time. The amount of proceeds from this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. Because there is no minimum offering amount required as a condition of this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can be no assurance that we will be able to sell any shares under, or fully utilize, the sales agreement with Wainwright as a source of financing.
We will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including for preclinical studies and clinical trials and the advancement of our product candidates. The amount and timing of these expenditures will depend on a number of factors, such as the timing, scope, progress and results of our research and development efforts, the timing and progress of any partnership efforts, and the competitive environment for our product candidates.
As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering, if any. As a result, our management will have broad discretion regarding the timing and application of the net proceeds from this offering. Pending the application of the net proceeds, we intend to invest the net proceeds in short-term, investment grade, interest-bearing securities.
DILUTION
If you invest in our common stock, you will experience dilution 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 September 30, 2023 was approximately $20.3 million or $5.42 per share of our common stock. Net tangible book value per share as of September 30, 2023 is equal to our total tangible assets minus total liabilities and the carrying value of Series A convertible preferred stock, all divided by the number of shares of common stock outstanding as of September 30, 2023.
After giving effect to the sale of $1,000,000 of shares of our common stock in this offering at an assumed offering price of $5.50 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on January 25, 2024, and after deducting estimated offering commissions and expenses payable by us, our as adjusted net tangible book value would have been approximately $20.9 million or $5.34 per share of common stock, as of September 30, 2023. This represents an immediate decrease in net tangible book value of approximately $0.08 per share to existing stockholders and an immediate dilution of approximately $0.16 per share to investors in this offering. The following table illustrates this calculation on a per share basis.
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Assumed public offering price per share
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|
|
|
|
|
|
|
|
|
$ |
5.50 |
|
|
| |
Net tangible book value per share as of September 30, 2023
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|
|
|
$ |
5.42 |
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|
|
|
|
|
|
|
| |
Decrease in net tangible book value per share attributable to this offering
|
|
|
|
$ |
0.08 |
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|
|
|
|
|
|
|
| |
As adjusted net tangible book value per share as of September 30, 2023, after giving effect to this offering
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|
|
|
|
|
|
|
|
|
$ |
5.34 |
|
|
| |
Dilution per share to new investors purchasing shares in this offering
|
|
|
|
|
|
|
|
|
|
$ |
0.16 |
|
|
The number of shares of common stock shown above to be outstanding immediately following this offering is based on 3,736,673 shares outstanding as of September 30, 2023 and excludes:
•
28,112 shares of common stock issuable upon conversion of our outstanding Series A Preferred Stock.
The above illustration of dilution per share to investors participating in this offering assumes no exercise of outstanding options or warrants to purchase our common stock. The exercise of outstanding options or warrants having an exercise price per share that is less than the offering price per share in this offering will increase dilution to investors in this offering.
DESCRIPTION OF CAPITAL STOCK
The following description is a general summary of the terms of the shares of common stock or shares of preferred stock that we may issue. The description below and in any prospectus supplement does not include all of the terms of the shares of common stock or shares of preferred stock and should be read together with our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, copies of which have been filed previously with the SEC. For more information on how you can obtain copies of our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, see “Where You Can Find More Information.”
General
Our charter authorizes us to issue up to 400,000,000 shares of common stock, par value $0.001 per share, and 40,000,000 shares of preferred stock, par value $0.001 per share. The following summary sets forth some of the general terms of our common stock. Because this is a summary, it does not contain all of the information that may be important to you. For a more detailed description of our common stock, you should read our amended and restated certificate of incorporation and the amended and restated bylaws, each of which is an exhibit to our Annual Report on Form 10-K to which this summary is also an exhibit, and the applicable provisions of the Delaware General Corporation Law (the “DGCL”).
Common stock
As of November 9, 2023, we had outstanding 3,736,673 shares of common stock.
Voting Rights
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An election of directors by our stockholders will be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Other matters shall be decided by the affirmative vote of our stockholders having a majority in voting power of the votes cast by the stockholders present or represented and voting on such matter, except as otherwise disclosed below.
Dividends
Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend rights of outstanding preferred stock.
Liquidation
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately all assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights.
Rights and Preferences
The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred stock
Our board of directors is authorized to issue shares of preferred stock in one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. You should refer to the applicable certificate of designation for complete information regarding a series of preferred stock to be issued under this prospectus and the applicable prospectus supplement.
The purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from seeking to acquire, a majority of our outstanding voting stock. As of September 30, 2023, there were 56,227 shares of Series A Preferred Stock outstanding. We have no present plans to issue any additional shares of preferred stock.
Anti-Takeover effects of Delaware law and our charter and bylaws
Delaware law, our certificate of incorporation and our bylaws contain provisions that could have the effect of delaying, deferring or discouraging another party from acquiring control of us. These provisions, which are summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors.
Staggered board; removal of directors
Our certificate of incorporation and bylaws divides our board of directors into three classes with staggered three-year terms. In addition, a director may only be removed for cause and only by the affirmative vote of the holders of a majority of the votes that all of our stockholders would be entitled to cast in an annual election of directors. Any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, will only be able to be filled by vote of a majority of our directors then in office. The classification of our board of directors and the limitations on the removal of directors and filling of vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of our company.
Stockholder action by written consent; special meetings
Our certificate of incorporation provides that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Our certificate of incorporation and bylaws also provide that, except as otherwise required by law, special meetings of our stockholders can only be called by our chairman of the board, our Chief Executive Officer or our board of directors.
Advance notice requirements for stockholder proposals
Our bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of persons for election to our board of directors. Stockholders at an annual meeting are only able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board of directors or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting securities.
Delaware business combination statute
We are subject to Section 203 of the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Amendment of certificate of incorporation and bylaws
DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our board of directors or by the affirmative vote of the holders of at least 75% of the votes that all of our stockholders would be entitled to cast in any annual election of directors. In addition, the affirmative vote of the holders of at least 75% of the votes that all of our stockholders would be entitled to cast in any annual election of directors is required to amend or repeal or to adopt any provisions inconsistent with any of the provisions of our certificate of incorporation described above under “Staggered board; removal of directors” and “Stockholder action by written consent; special meetings.”
Exclusive forum selection
Our certificate of incorporation provides, unless we consent in writing to the selection of an alternative forum, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of our company under Delaware law, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or employees to our company or our stockholders, (3) any action asserting a claim against our company arising pursuant to any provision of the DGCL or our certificate of incorporation or bylaws, (4) any action asserting a claim against our company governed by the internal affairs doctrine or (5) any other action asserting an “internal corporate claim,” as defined in Section 115 of the DGCL. These exclusive-forum provisions do not currently apply to claims under the Securities Act of 1933, as amended, or the Exchange Act. Any person or entity purchasing or otherwise acquiring any interest in our securities shall be deemed to have notice of and consented to this provision. Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against us or our directors and officers.
Listing on The Nasdaq Capital Market
Our common stock is listed on The Nasdaq Capital Market under the symbol “APRE.”
Authorized but unissued shares
The authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing requirements of The Nasdaq Capital Market. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make it more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Transfer agent and registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A. The transfer agent and registrar’s address is 150 Royall St., Canton, MA 02021.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with H.C. Wainwright & Co., LLC (“Wainwright”) under which we may issue and sell from time to time up to $1,000,000 of our common stock through Wainwright as our sales agent. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including sales made directly on The Nasdaq Capital Market or any other existing trading market in the United States for our common stock, sales made to or through a market maker other than on an exchange or otherwise, directly to Wainwright as principal, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or in any other method permitted by law.
Wainwright will offer our common stock subject to the terms and conditions of the sales agreement on a daily basis or as otherwise agreed upon by us and Wainwright. We will designate the maximum amount of common stock to be sold through Wainwright on a daily basis or otherwise determine such maximum amount together with Wainwright. Subject to the terms and conditions of the sales agreement, Wainwright will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell on our behalf all of the shares of common stock requested to be sold by us. We may instruct Wainwright not to sell common stock if the sales cannot be effected at or above the price designated by us in any such instruction. Wainwright or we may suspend the offering of our common stock being made through Wainwright under the sales agreement upon proper notice to the other party. We or Wainwright may suspend the offering of the common stock being made through Wainwright under the sales agreement upon proper notice to the other party.
The aggregate compensation payable to Wainwright as sales agent is equal to 3.0% of the gross sales price of the shares sold through it pursuant to the sales agreement. Pursuant to the terms of the sales agreement, we agreed to reimburse Wainwright for the reasonable fees and expenses of its legal counsel incurred in connection with entering into the sales agreement in an amount not to exceed $50,000 in the aggregate, in addition to up to $2,500 per due diligence update session for Wainwright’s counsel’s fees. We estimate that the total expenses of the offering payable by us, excluding commissions payable to Wainwright under the sales agreement, will be approximately $125,000.
The remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection with the sales, will equal our net proceeds for the sale of such common stock.
Wainwright will provide written confirmation to us following the close of trading on The Nasdaq Capital Market on each day in which common stock is sold through it as sales agent under the sales agreement. Each confirmation will include the number of shares of common stock sold through it as sales agent on that day, the volume weighted average price of the shares sold, the percentage of the daily trading volume and the net proceeds to us.
To the extent any sales are made, we will report at least quarterly the number of shares of common stock sold through Wainwright under the sales agreement, the net proceeds to us and the compensation paid by us to Wainwright in connection with the sales of common stock.
Settlement for sales of common stock will occur on the second business day or such shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time, following the date on which any sales are made, or on some other date that is agreed upon by us and Wainwright in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our common stock as contemplated in this prospectus supplement and the accompanying prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and Wainwright may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In connection with the sales of our common stock on our behalf, Wainwright may be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation paid to Wainwright may be deemed to be underwriting commissions or discounts. We have agreed in the sales agreement to provide indemnification and contribution to Wainwright against certain liabilities, including liabilities under the Securities Act.
Our common stock is listed on The Nasdaq Capital Market and trades under the symbol “APRE.” The transfer agent of our common stock is Computershare.
To the extent required by Regulation M, Wainwright will not engage in any market making activities involving our shares of common stock while the offering is ongoing under this prospectus supplement.
Wainwright and/or its affiliates have provided, and may in the future provide, various investment banking and other financial services for us for which services they have received and, may in the future receive, customary fees.
In addition, in the ordinary course of its business activities, Wainwright and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. Wainwright and its affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
LEGAL MATTERS
Certain legal matters in connection with the securities offered hereby will be passed upon for us by DLA Piper LLP (US), Philadelphia, Pennsylvania. Ellenoff Grossman & Schole LLP, New York, New York, is counsel for Wainwright in connection with this offering.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2022, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the securities offered by this prospectus. This prospectus does not contain all of the information set forth in the registration statement, of which it is a part, and its exhibits and schedules in accordance with SEC rules and regulations. For further information with respect to us and the securities being offered by this prospectus, you should read the registration statement, including its exhibits and schedules. Statements contained in this prospectus, including documents that we have incorporated by reference, as to the contents of any contract or other document referred to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit to the registration statement or any other such document, each such statement is qualified in all respects by reference to the corresponding exhibit. You should review the complete contract or other document to evaluate these statements. You may obtain copies of the registration statement and its exhibits via the SEC’s website at http://www.sec.gov.
We are subject to the information and periodic reporting requirements of the Exchange Act, and we file annual, quarterly and current reports, proxy statements and other documents with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers, including us, that file electronically with the SEC. You may obtain documents that we file with the SEC at http://www.sec.gov.
We also make these documents available on our website at www.aprea.com. Our website and the information contained or accessible through our website is not incorporated by reference in this prospectus, and you should not consider it part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
SEC rules permit us to incorporate information by reference in this prospectus and any applicable prospectus supplement. This 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 considered to be part of this prospectus and any applicable prospectus supplement, except for information superseded by information contained in this prospectus or any applicable prospectus supplement itself or in any subsequently filed incorporated document. This prospectus and any applicable prospectus supplement incorporate by reference the documents set forth below that we have previously filed with the SEC, other than information in such documents that is deemed to be furnished and not filed. These documents contain important information about us and our business and financial condition.
•
•
•
•
•
Current Reports on Form 8-K, filed with the SEC on January 30, 2023, February 13, 2023, February 24, 2023, March 30, 2023, April 18, 2023, May 8, 2023, May 15, 2023 (other than the information furnished pursuant to Item 2.02), July 5, 2023, August 10, 2023 (other than the information furnished pursuant to Item 2.02), August 24, 2023, September 11, 2023, October 13, 2023, October 16, 2023, November 9, 2023 (other than the information furnished pursuant to Item 2.02) and January 4, 2024; and
•
All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of which this prospectus is a part and prior to the effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, and any previously filed documents. All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination of the offering of any of the securities covered under this prospectus shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, the applicable prospectus supplement and any previously filed documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement shall be deemed to be modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or such applicable prospectus supplement.
You can obtain any of the filings incorporated by reference into this prospectus or any applicable prospectus supplement through us or from the SEC through the SEC’s website at http://www.sec.gov. Upon request, we will provide, without charge, a copy of any or all of the reports and documents referred to above which have been incorporated by reference into this prospectus or any applicable prospectus supplement.
Prospective investors may obtain documents incorporated by reference in this prospectus or any applicable prospectus supplement by requesting them in writing or by telephone from us at our executive offices at:
Aprea Therapeutics, Inc.
3805 Old Easton Road
Doylestown, PA 18902
(617) 463-9385
Our reports and documents incorporated by reference herein may also be found in the “Investor Relations” section of our website at www.aprea.com. The content of our website and any information that is linked to or accessible from our website (other than our filings with the SEC that are incorporated by reference, as set forth under “Incorporation of Certain Documents by Reference”) is not incorporated by reference into this prospectus or any applicable prospectus supplement and you should not consider it a part of this prospectus, any applicable prospectus supplement, or the registration statement.
Up to $1,000,000
Common Stock
PROSPECTUS
H.C. Wainwright & Co.
, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except in the case of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities, other than underwriting discounts and commissions. All amounts are estimates except the SEC registration fee and the Financial Industry Regulatory Authority, Inc. (“FINRA”) filing fee.
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SEC registration fee
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$ |
22,140 |
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FINRA filing fee
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23,000 |
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|
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Printing expenses
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*
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Transfer agent and registrar fees
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*
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Trustee fees (including counsel fees)
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*
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Miscellaneous
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*
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Total
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$ |
*
|
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*
Estimated expenses not presently known.
Item 15. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of its directors for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her 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 certificate of incorporation provides that none of our directors shall be personally liable to us or our 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 Delaware General Corporation Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her 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.
Our certificate of incorporation provides that we will indemnify each person who was or is a party or is threatened to be made a party or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, our 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 certificate of incorporation also provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, our 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, our 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 us, 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 us against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If we do not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
We have entered into indemnification agreements with each of our executive officers and directors. In general, these agreements provide that we will indemnify the director or executive officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or executive officer of our company or in connection with their service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director or executive officer makes a claim for indemnification and establish certain presumptions that are favorable to the director or executive officer.
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 directors or officers.
The underwriting agreement, to be filed by an amendment to this registration statement, will provide for indemnification of us and our directors and officers by the underwriters against certain liabilities under the Securities Act and the Exchange Act.
Insofar as the forgoing provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising under the Securities Act of 1933, as amended, or the Securities Act, we have been informed 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.
Item 16. Exhibits
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Exhibit
No.
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Description
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3.3*
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4.1
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4.2†
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Form of Debt Security
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4.3†
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Form(s) of Rights Agreement(s) (including form(s) of Rights).
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4.4*
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4.5†
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Form of Certificate of Designation of Preferred Stock.
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4.6†
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Form of Warrant Agreement and Warrant Certificate.
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4.7†
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Form of Certificate for Preferred Stock.
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5.1
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Opinion of DLA Piper LLP (US), relating to the base prospectus.
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5.2
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23.1
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23.2
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24.1
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25.1††
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Statement of Eligibility of Trustee on Form T-1.
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107
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*
Previously filed.
†
To be filed by amendment or as exhibit(s) to a Current Report of the Registrant on Form 8-K and incorporated herein by reference, as applicable.
††
To be filed pursuant to Section 305(b)(2) of the U.S. Trust Indenture Act of 1939, as applicable.
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;
(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 this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that subparagraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, 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 to any purchaser:
(i)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act 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 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 their securities provided by or on behalf of the undersigned Registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b)
The undersigned Registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the annual reports of the Registrant pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement, if any, shall be deemed to be a new registration statement relating to the securities offered herein, 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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 of this registration statement, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act 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 such the Securities Act and will be governed by the final adjudication of such issue.
(d)
The undersigned Registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and
(2)
For purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Doylestown, State of Pennsylvania, on January 26, 2024.
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APREA THERAPEUTICS, INC.
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By:
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/s/ Oren Gilad
Oren Gilad, Ph.D.
President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ John P. Hamill
John P. Hamill
Senior Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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POWER OF ATTORNEY
We, the undersigned directors and officers of Aprea Therapeutics, Inc. (the Company), hereby severally constitute and appoint Oren Gilad and John Hamill, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-3 filed herewith, and any and all pre-effective and post-effective amendments to said registration statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, in connection with the registration under the Securities Act of 1933, as amended, of equity securities of the Company, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney. This Power of Attorney does not revoke any power of attorney previously granted by the undersigned, or any of them.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on the date indicated:
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Signature
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Title
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Date
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/s/ Oren Gilad
Oren Gilad, Ph.D.
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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January 26, 2024
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/s/ John P. Hamill
John P. Hamill
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Senior Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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January 26, 2024
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/s/ Marc Duey
Marc Duey
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Director
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January 26, 2024
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/s/ Michael Grissinger
Michael Grissinger
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Director
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January 26, 2024
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Signature
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Title
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Date
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/s/ John B. Henneman
John B. Henneman III
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Director
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January 26, 2024
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/s/ Rifat Pamukcu
Rifat Pamukcu, M.D.
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Director
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January 26, 2024
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/s/ Richard Peters
Richard Peters, M.D., Ph.D.
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Director
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January 26, 2024
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/s/ Gabriel Gruia
Gabriel Gruia, M.D.
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Director
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January 26, 2024
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/s/ Bernd Seizinger
Bernd R. Seizinger, M.D., Ph.D.
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Director
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January 26, 2024
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/s/ Jean-Pierre Bizzari
Jean-Pierre Bizzari, M.D.
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Director
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January 26, 2024
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Exhibit 1.2
AT THE MARKET OFFERING AGREEMENT
January 26,
2024
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Aprea Therapeutics, Inc.,
a corporation organized under the laws of Delaware (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1. Definitions.
The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed
to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The
City of New York generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net Proceeds”
shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement included in the Registration Statement at the Effective
Time and any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares included in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $150,000,000 of securities of the Company
to be filed on or about the Execution Time, including exhibits and financial statements and any prospectus supplement relating to the
Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to
Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also
mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means the Nasdaq Capital Market.
2. Sale
and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal, from time
to time during the term of this Agreement and on the terms set forth herein, up to such number of shares (the “Shares”)
of the Company’s common stock, $0.001 par value per share (“Common Stock”), that does not exceed (a) the
number or dollar amount of shares of Common Stock registered on the Prospectus Supplement, pursuant to which the offering is being made,
(b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock issuable upon exercise,
conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital
stock), or (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering of the Shares
to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6
of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 2
on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the Company
and that the Manager shall have no obligation in connection with such compliance.
(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company hereby appoints
the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement and the
Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the conditions stated herein.
The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a separate
agreement (each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in
accordance with Section 2 of this Agreement.
(b) Agent
Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following the
effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through the Manager,
acting as sales agent, and the Manager agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on
the following terms:
(i) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales
(“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The
Company will designate the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d))
and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell on a particular day all of the Shares
designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 2(b) shall
be the market price for the shares of Common Stock sold by the Manager under this Section 2(b) on the Trading Market at the
time of sale of such Shares.
(ii) The
Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the Shares, (B) the
Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares for any reason
other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager shall be under no obligation
to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed by the Manager and the Company
pursuant to a Terms Agreement.
(iii) The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable efforts
to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors
(the “Board”), or a duly authorized committee thereof, or such duly authorized officers of the Company, and notified
to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone (confirmed promptly by
electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that such suspension
or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to
the giving of such notice.
(iv) The
Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Stock or to or through a market maker. The Manager may also sell Shares in privately negotiated transactions, provided that the Manager
receives the Company’s prior written approval for any sales in privately negotiated transactions and if so provided in the “Plan
of Distribution” section of the Prospectus Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement
disclosing the terms of such privately negotiated transaction.
(v) The
compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of 3.0% of the gross sales
price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation
shall not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price
agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee
and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi) The
Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares
sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company
to the Manager with respect to such sales.
(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at 10:00 a.m. (New York City
time) on the second (2nd) Trading Day (and on and after May 28, 2024 (or such later date on which the Commission’s final rule with
respect to the shortening of the securities transaction settlement cycle becomes effective), on the first (1st) Trading Day, or
any such shorter settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time) following the date
on which such sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement Date,
the Company will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s
or its designee’s account (provided that the Manager shall have given the Company written notice of such designee at least one
Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and Withdrawal
at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares in all cases
shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Manager will deliver
the related Net Proceeds in same day funds to an account designated by the Company. The Company agrees that, if the Company, or its transfer
agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a Settlement Date, in addition to and in no way
limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the Manager harmless against any
loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company, and (ii) pay to the Manager any commission, discount or other compensation
to which the Manager would otherwise have been entitled absent such default.
(viii) At
each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus as amended as of such date. Any obligation of the Manager to use its commercially reasonable
efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and warranties
of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Section 6 of this Agreement.
(ix) If
the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares
of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales
Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the Record Date and the Record Date shall
be the Settlement Date and the Company shall cover any additional costs of the Manager in connection with the delivery of Shares on the
Record Date.
(c) Term
Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section 2(b) of
this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement
will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement
shall specify the number of the Shares to be purchased by the Manager pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of the
Shares, and the time and date (each such time and date being referred to herein as a “Time of Delivery”) and place
of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents required
by the Manager.
(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving effect
to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A) together
with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the currently
effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the
Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in writing. Under no
circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the
minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer,
and notified to the Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering amount
of Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e) Regulation
M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Manager at least one (1) Business Day’s prior notice of its intent
to sell any Shares in order to allow the Manager time to comply with Regulation M.
3. Representations
and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time and the Effective Time
and on each such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement,
as set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a) Subsidiaries.
All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company that are required to be
set forth on Exhibit 21.1 pursuant to Item 601 of Regulation S-K are set forth on Exhibit 21.1 to the Company’s most
recent Annual Report on Form 10-K filed with the Commission. The Company owns, directly or indirectly, all of the capital stock
or other equity interests of each Subsidiary free and clear of any “Liens” (which for purposes of this Agreement shall
mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction), and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary
is in violation nor in default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material
adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus Supplement, the
Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened)
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c) Authorization
and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board or the Company’s stockholders in connection herewith other than in
connection with the Required Approvals. This Agreement has been duly executed and delivered by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the
consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary
is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other “Person”
(defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including the Trading Market)
in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings required
by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of application(s) to
and approval by the Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) such
filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f) Issuance
of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company will reserve from its duly authorized
capital stock shares of Common Stock for the purpose of enabling the Company to satisfy its obligations pursuant to this Agreement. On
or after the Effective Time, the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely
transferable and tradable by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission
of such a purchaser). On or after the Effective Time, the Shares are being issued pursuant to the Registration Statement and the issuance
of the Shares has been registered by the Company under the Act. The “Plan of Distribution” section within the Registration
Statement permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of
such Shares will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock since its most recently
filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plan
and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common Stock (“Common
Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person
has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by this Agreement that have not been waived. Except as set forth in the SEC Reports, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person.
There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion,
exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no
outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security
of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval
or authorization of any stockholder, the Board or others is required for the issuance and sale of the Shares. There are no stockholders
agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
(h) Registration
Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission
the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering and sale of the Shares.
Upon the Effective Time, such Registration Statement shall be effective and available for the offer and sale of the Shares as of the
date hereof. As filed, the Base Prospectus contains all information required by the Act and the rules thereunder, and, except to
the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager
prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement,
at the Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection
with any offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements
as set forth in General Instruction I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction I.B.6 of Form S-3
with respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12) months prior
to this offering.
(i) Accuracy
of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed with
the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder,
as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j) Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such
time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (ii)),
the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the
Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does not
include any information the substance of which conflicts with the information contained in the Registration Statement, including any
Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each Issuer
Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus that the Company is required
to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to
Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with
the requirements of the Act and the rules thereunder. The Company will not, without the prior consent of the Manager, prepare, use
or refer to, any Issuer Free Writing Prospectuses.
(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with
the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order with
respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m) SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(n) [RESERVED]
(o) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as disclosed in a subsequent SEC Report filed prior to the date on which this representation is being made, (i) there
has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock, (v) the
Company has not issued any equity securities to any officer, director or “Affiliate” (defined as any Person that,
directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as
such terms are used in and construed under Rule 144 under the Act), except pursuant to existing Company stock option plans, and
(vi) no executive officer of the Company or member of the Board has resigned from any position with the Company. The Company does
not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares contemplated
by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected
to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations,
assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this
representation is made.
(p) Litigation.
Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or,
to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth in the SEC Reports, (i) adversely affects or challenges
the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer
thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Act.
(q) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their
relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company
or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not
such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other
governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except in each case as would not have or reasonably be expected
to result in a Material Adverse Effect.
(s) Environmental
Laws.The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as
all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(t) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(u) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for (i) Liens 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 and the Subsidiaries and (ii) Liens for the
payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(v) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have would have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this
Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within
the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any
of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(w) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any 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 without a significant increase in cost.
(x) Affiliate
Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any Subsidiary and, to
the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(y) Sarbanes
Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and
designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it
files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures
of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange
Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting
(as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely
to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(z) Certain
Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be
due in connection with the transactions contemplated by this Agreement.
(aa) No
Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements with
any agent or any other representative in respect of at the market offerings of the Shares.
(bb) [RESERVED]
(cc) Listing
and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance of the Shares as contemplated by
this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered pursuant to Section 12(b) or
12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect
of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission
is contemplating terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding
the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that
the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation
and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in
connection with such electronic transfer.
(dd) Application
of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover
provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state of incorporation
that is or could become applicable to the Shares.
(ee) Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect
of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within one year
from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization
or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof. The SEC Reports
set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the
Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business),
(y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same
are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Company
nor any Subsidiary is in default with respect to any Indebtedness.
(ff) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and
all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(gg) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its
behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the
Foreign Corrupt Practices Act of 1977, as amended.
(hh) Accountants.
The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm
(i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect
to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December 31, 2023.
(ii) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(jj) FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled,
tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance
with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use,
premarket clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices,
product listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would
not have a Material Adverse Effect. There is no pending, completed or, to the Company's knowledge, threatened, action (including any
lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the Company or
any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any notice, warning letter or other communication
from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval
of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of
any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or orders
the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold
on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any facility of the Company
or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with the Company or any
of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any of its
Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties, business and
operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws, rules and
regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or
use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern
as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
(kk) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of
the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under
the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(ll) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems
and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition
that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company
and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the
Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(mm) Compliance
with Data Privacy Laws. (i) The Company and the Subsidiaries are, and at all times since May 17, 2022 were, in compliance
with all applicable data privacy and security laws and regulations, including, as applicable, the European Union General Data Protection
Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Company and the
Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with their policies and procedures
relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (the “Policies”);
(iii) the Company provides accurate notice of its applicable Policies to its customers, employees, third party vendors and representatives
as required by Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice of the Company’s then-current
privacy practices relating to its subject matter, and do not contain any material omissions of the Company’s then-current privacy
practices, as required by Privacy Laws. “Personal Data” means (i) a natural person’s name, street address,
telephone number, email address, photograph, social security number, bank information, or customer or account number; (ii) any information
which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by GDPR; and (iv) any other piece of information that allows the identification of such natural person, or
his or her family, or permits the collection or analysis of any identifiable data related to an identified person’s health or sexual
orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate, misleading, or deceptive
in violation of any Privacy Laws since May 17, 2022 and (ii) the execution, delivery and performance of this Agreement will
not result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, (i) has, to the knowledge
of the Company, since May 17, 2022 received written notice of any actual or potential liability of the Company or the Subsidiaries
under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand
pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement by or with any court or arbitrator or governmental
or regulatory authority that imposed any obligation or liability under any Privacy Law.
(nn) Office
of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of the directors,
officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled by an individual
or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of
Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions
authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory that
is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the transactions
contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual
or entity: (i) to fund or facilitate any activities or business of or with any individual or entity or in any country or territory
that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result in a
violation of Sanctions by any individual or entity (including any individual or entity participating in the transactions contemplated
hereby, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries
has knowingly engaged in, and is not now knowingly engaged 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 of Sanctions.
(oo) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s request.
(pp) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a
bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(qq) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.
(rr) FINRA
Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration Statement,
the Base Prospectus, any Prospectus Supplement or the Prospectus.
4. Agreements.
The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a prospectus
relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file any
amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which
the Manager reasonably objects. The Company will cause any supplement to the Prospectus filed after the Effective Time to be properly
completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to the Manager of
such timely filing. The Company will promptly advise the Manager (i) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus
(whether physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the
offering or sale of the Shares, any amendment to the Registration Statement shall have been filed or become effective (other than any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act), (iii) of any request
by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance
of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence
or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using
its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) Subsequent
Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as a result of which
the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading,
the Company will (i) notify promptly the Manager so that any use of the Registration Statement or Prospectus may cease until such
are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to correct such statement or omission;
and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c) Notification
of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company
promptly will (i) notify the Manager of any such event, (ii) subject to Section 4(a), prepare and file with the Commission
an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use
its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon
as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus to the Manager
in such quantities as the Manager may reasonably request.
(d) Earnings
Statements. As soon as practicable, the Company will make generally available to its security holders and to the Manager an earnings
statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and
Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager, without
charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager
or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173
or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Manager
may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f) Qualification
of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of such jurisdictions
as the Manager may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in
any jurisdiction where it is not now so subject.
(g) Free
Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Manager, and the
Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company,
it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not apply
during such three Trading Days) for at least three (3) Trading Days prior to any date on which the Company or any Subsidiary offers,
sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of Common Stock
or any Common Stock Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided that, without
compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee equity plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon
the conversion or exercise of Common Stock Equivalents outstanding at the Execution Time.
(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to
or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the
Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j) Notification
of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time to time, advise
the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter
or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6 herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading
Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means of Incorporated
Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its quarterly
reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial
information (other than information that is furnished and not filed), if the Manager reasonably determines that the information in such
Form 8-K is material, or (v) the Shares are delivered to the Manager as principal at the Time of Delivery pursuant to a Terms
Agreement (such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above,
a “Representation Date”), unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager
forthwith a certificate dated and delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that
the statements contained in the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are
true and correct at the Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in said Section 6, modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of delivery of such certificate.
(l) Bring
Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the
Company shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to
the Company (“Company Counsel”) addressed to the Manager and dated and delivered within five (5) Trading Days
of such Representation Date, in form and substance reasonably satisfactory to the Manager, including a negative assurance representation.
The requirement to furnish or cause to be furnished an opinion (but not with respect to a negative assurance representation) under this
Section 4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the
Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment thereto
under the Exchange Act, unless the Manager reasonably requests such deliverable required this Section 4(l) in connection with
a Representation Date, upon which request such deliverable shall be deliverable hereunder.
(m) Auditor
Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the Manager,
the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants
satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith
to furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form and substance
reasonably satisfactory to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement
but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate.
The requirement to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for
any Representation Date other than a Representation Date on which a material amendment to the Registration Statement or Prospectus is
made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange Act, unless the Manager
in good faith reasonably requests the deliverables required by this Section 4(m) in connection with a Representation Date, upon
which request such deliverable shall be deliverable hereunder.
(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the offering
of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30 Trading Days), and
at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably satisfactory to the
Manager, which shall include representatives of management and Accountants. The Company shall cooperate timely with any reasonable due
diligence request from or review conducted by the Manager or its agents from time to time in connection with the transactions contemplated
by this Agreement, including, without limitation, providing information and available documents and access to appropriate corporate officers
and the Company’s agents during regular business hours, and timely furnishing or causing to be furnished such certificates, letters
and opinions from the Company, its officers and its agents, as the Manager may reasonably request. The Company shall reimburse the Manager
for Manager’s counsel’s fees in each such due diligence update session, up to a maximum of $2,500 per update, plus any incidental
expense incurred by the Manager in connection therewith. The requirement to conduct a due diligence session under this Section 4(n) shall
be waived (including the fees reimbursable pursuant thereto) for any Representation Date occurring at a time at which no instruction
to the Manager to sell Shares pursuant to this Agreement has been delivered by the Company or is pending. Notwithstanding the foregoing,
if the Company subsequently decides to sell Shares following any Representation Date when the Company relied on such waiver and did not
conduct a due diligence session pursuant to this Section 4(n), then before the Company instructs the Manager to sell Shares pursuant
to this Agreement, the Company shall conduct a due diligence session in accordance with this Section 4(n).
(o) Acknowledgment
of Trading. The Company consents to the Manager trading in the Common Stock for the Manager’s own account and for the account
of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms Agreement.
(p) Disclosure
of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable,
the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company
with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent change in Commission
policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q) Rescission
Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to
purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r) Bring
Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and each execution
and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager 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 acceptance or of such Terms
Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true and correct
as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale, as the case
may be, as though made at and as of 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).
(s) Reservation
of Shares. The Company shall ensure that there are at all times sufficient shares of Common Stock to provide for the issuance, free
of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held in treasury, of the
maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use
its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(t) Obligation
Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances
where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company
will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act and the regulations thereunder.
(u) DTC
Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible for clearance
and settlement through the facilities of DTC.
(v) Use
of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w) Filing
of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market” offerings
as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file a Prospectus
Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation, and
such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x) Additional
Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares as contemplated
by this Agreement, the Company shall file a new registration statement with respect to any additional shares of Common Stock necessary
to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After
the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement
shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12
of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the
final form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the
time such registration statement became effective.
5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale
of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares
under the Exchange Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification
of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable
and documented fees and expenses of counsel for the Manager relating to such registration and qualification); (vii) the transportation
and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of
the Shares; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable and documented fees
and expenses of the Manager’s counsel, not to exceed $50,000 (excluding any periodic due diligence fees provided for under Section 4(n)),
which shall be paid upon the Effective Time; and (xi) all other costs and expenses incident to the performance by the Company of
its obligations hereunder.
6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to
(i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each
Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company of
its obligations hereunder and (iii) the following additional conditions:
(a) Effectiveness
of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared effective by the
Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed
in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus Supplement
shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance statement,
dated as of such date and addressed to the Manager in form and substance acceptable to the Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the Company
signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, dated as of such
date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus
Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in
or contemplated in the Registration Statement and the Prospectus.
(d) Delivery
of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have furnished
to the Manager letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance
satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited
interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus and
provide customary “comfort” as to such review in form and substance satisfactory to the Manager.
(e) No
Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the Prospectus
and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in previously
reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change,
or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares
as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive
of any amendment or supplement thereto).
(f) Payment
of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period required
by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).
(g) No
FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements
under this Agreement.
(h) Shares
Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory
evidence of such actions shall have been provided to the Manager.
(i) Other
Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such
further information, certificates and documents as the Manager may reasonably request.
If any of the conditions specified
in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for
the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date
or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone
and confirmed in writing by email.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP,
counsel for the Manager, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date
as provided in this Agreement.
7. Indemnification
and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager
and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus, any Prospectus
Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or result from or relate to any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by the Manager specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company may otherwise have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating to the Manager
furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing indemnity; provided,
however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and
paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may otherwise have.
(c) Indemnification
Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent
the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded 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, (iii) 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
the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at
the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) Contribution.
In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which the Company and the Manager may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering of the Shares;
provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker Fee applicable
to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the
Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Manager
shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement. Relative fault
shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Manager on
the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
8. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business Days’ prior
written notice. Any such termination shall be without liability of any party to any other party except that (i) with respect to any
pending sale, through the Manager for the Company, the obligations of the Company, including in respect of compensation of the Manager,
shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5, 6, 7, 8, 9, 10,
12, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b) The
Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall
remain in full force and effect notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a) or
(b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases
be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 shall remain in full force and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination shall
not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may be.
If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares shall
settle in accordance with the provisions of Section 2(b) of this Agreement.
(e) In
the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to such Terms
Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company prior
to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution of
the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended by the Commission
or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
9. Representations
and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company
or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or controlling persons referred
to in Section 7, and will survive delivery of and payment for the Shares.
10. Notices.
All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed to the addresses
of the Company and the Manager, respectively, set forth on the signature page hereto.
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. No
Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which it may
be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager in
connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that
the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection
with such transaction or the process leading thereto.
13. Integration.
This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral) between the Company
and the Manager with respect to the subject matter hereof.
14. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.
15. Applicable
Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York. Each of the Company and the Manager: (i) agrees
that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection
which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the exclusive
jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New
York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service of
any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or
in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed
by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any
such suit, action or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall
be deemed in every respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall
commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
16. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby
or thereby.
17. Counterparts.
This Agreement and any Terms Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement, which may be delivered by facsimile or in .pdf file via e-mail.
***************************
18. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Manager.
| Very truly yours, |
|
| |
|
| aprea therapeutics, inc. |
|
| |
|
| By: |
/s/ John Hamill |
|
| Name: |
John Hamill |
|
| Title: |
Sr. Vice President and Chief
Financial Officer |
|
Address
for Notice:
3805 Old Easton Road
Doylestown, PA 18902
Attention: Chief Financial Officer
E-mail: john.hamill@aprea.com
The foregoing Agreement is hereby confirmed and accepted as of the
date first written above.
H.C. WAINWRIGHT & CO., LLC
| By: |
/s/ Edward Silvera |
|
| Name: |
Edward D. Silvera |
|
| Title: |
Chief Operating Officer |
|
Address
for Notice:
430 Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
E-mail: notices@hcwco.com
Form of Terms Agreement
ANNEX I
aprea
therapeutics, inc.
TERMS AGREEMENT
Dear Sirs:
Aprea Therapeutics, Inc.
(the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering Agreement,
dated January ___, 2024 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright &
Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto (the
“Purchased Shares”).
Each of the provisions
of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the Company, of offers
to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that each representation
and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein defined) shall
be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the Prospectus, and
also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the Prospectus as amended
and supplemented to relate to the Purchased Shares.
An amendment to
the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the case may be,
relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and
Exchange Commission.
Subject to the terms
and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the Company agrees
to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased Shares at the
time and place and at the purchase price set forth in the Schedule I hereto.
If the foregoing is in accordance
with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions
of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and
the Company.
| aprea therapeutics, inc. |
|
| |
|
| By: |
|
|
| |
Name: |
|
|
| |
Title: |
|
|
ACCEPTED as of the date first written above.
| H.C. WAINWRIGHT & CO., LLC |
|
| |
|
| By: |
|
|
| |
Name: |
|
|
| |
Title: |
|
|
Exhibit 4.1
APREA THERAPEUTICS, INC.
INDENTURE
Dated as of , 20
[ ]
Trustee
TABLE OF CONTENTS
| |
|
Page |
| ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1. |
Definitions |
1 |
| Section 1.2. |
Other Definitions |
3 |
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
3 |
| Section 1.4. |
Rules of Construction |
3 |
| |
|
| ARTICLE II. THE SECURITIES |
3 |
| Section 2.1. |
Issuable in Series |
3 |
| Section 2.2. |
Establishment of Terms of Series of Securities |
4 |
| Section 2.3. |
Execution and Authentication |
5 |
| Section 2.4. |
Registrar and Paying Agent |
5 |
| Section 2.5. |
Paying Agent to Hold Money in Trust |
5 |
| Section 2.6. |
Securityholder Lists |
6 |
| Section 2.7. |
Mutilated, Destroyed, Lost and Stolen Securities |
6 |
| Section 2.8. |
Outstanding Securities |
6 |
| Section 2.9. |
Treasury Securities |
6 |
| Section 2.10. |
Temporary Securities |
7 |
| Section 2.11. |
Cancellation |
7 |
| Section 2.12. |
Defaulted Interest |
7 |
| Section 2.13. |
Global Securities |
7 |
| Section 2.14. |
CUSIP Numbers |
8 |
| |
|
| ARTICLE III. REDEMPTION |
8 |
| Section 3.1. |
Notice to Trustee |
8 |
| Section 3.2. |
Selection of Securities to be Redeemed |
8 |
| Section 3.3. |
Notice of Redemption |
8 |
| Section 3.4. |
Effect of Notice of Redemption |
9 |
| Section 3.5. |
Deposit of Redemption Price |
9 |
| Section 3.6. |
Securities Redeemed in Part |
9 |
| ARTICLE IV. COVENANTS |
9 |
| Section 4.1. |
Payment of Principal and Interest |
9 |
| Section 4.2. |
SEC Reports |
9 |
| Section 4.3. |
Compliance Certificate |
9 |
| Section 4.4. |
Stay, Extension and Usury Laws |
9 |
| |
|
| ARTICLE V. SUCCESSORS |
10 |
| Section 5.1. |
When Company May Merge, Etc. |
10 |
| Section 5.2. |
Successor Corporation Substituted |
10 |
| |
|
|
| ARTICLE VI. DEFAULTS AND REMEDIES |
10 |
| Section 6.1. |
Events of Default |
10 |
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
11 |
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
11 |
| Section 6.4. |
Trustee May File Proofs of Claim |
12 |
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
12 |
| Section 6.6. |
Application of Money Collected |
12 |
| Section 6.7. |
Limitation on Suits |
12 |
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
13 |
| Section 6.9. |
Restoration of Rights and Remedies |
13 |
| Section 6.10. |
Rights and Remedies Cumulative |
13 |
| Section 6.11. |
Delay or Omission Not Waiver |
13 |
| Section 6.12. |
Control by Holders |
13 |
| Section 6.13. |
Waiver of Past Defaults |
13 |
| Section 6.14. |
Undertaking for Costs |
14 |
| Section 6.15. |
Subordination |
14 |
| |
|
|
| ARTICLE VII. TRUSTEE |
14 |
| Section 7.1. |
Duties of Trustee |
14 |
| Section 7.2. |
Rights of Trustee |
15 |
| Section 7.3. |
Individual Rights of Trustee |
15 |
| Section 7.4. |
Trustee’s Disclaimer |
15 |
| Section 7.5. |
Notice of Defaults |
15 |
| Section 7.6. |
Reports by Trustee to Holders |
16 |
| Section 7.7. |
Compensation and Indemnity |
16 |
| Section 7.8. |
Replacement of Trustee |
16 |
| Section 7.9. |
Successor Trustee by Merger, Etc. |
17 |
| Section 7.10. |
Eligibility; Disqualification |
17 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
17 |
| |
|
| ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
17 |
| Section 8.1. |
Satisfaction and Discharge of Indenture |
17 |
| Section 8.2. |
Application of Trust Funds; Indemnification |
18 |
| Section 8.3. |
Legal Defeasance of Securities of any Series |
18 |
| Section 8.4. |
Covenant Defeasance |
19 |
| Section 8.5. |
Repayment to Company |
19 |
| Section 8.6. |
Reinstatement |
19 |
| ARTICLE IX. AMENDMENTS AND WAIVERS |
20 |
| Section 9.1. |
Without Consent of Holders |
20 |
| Section 9.2. |
With Consent of Holders |
20 |
| Section 9.3. |
Compliance with Trust Indenture Act |
21 |
| Section 9.4. |
Revocation and Effect of Consents |
21 |
| Section 9.5. |
Notation on or Exchange of Securities |
21 |
| Section 9.6. |
Trustee Protected |
21 |
| |
|
|
| ARTICLE X. MISCELLANEOUS |
21 |
| Section 10.1. |
Trust Indenture Act Controls |
21 |
| Section 10.2. |
Notices |
21 |
| Section 10.3. |
Communication by Holders with Other Holders |
22 |
| Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
22 |
| Section 10.5. |
Statements Required in Certificate or Opinion |
22 |
| Section 10.6. |
Rules by Trustee and Agents |
22 |
| Section 10.7. |
Legal Holidays |
23 |
| Section 10.8. |
No Recourse Against Others |
23 |
| Section 10.9. |
Counterparts |
23 |
| Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
23 |
| Section 10.11. |
No Adverse Interpretation of Other Agreements |
23 |
| Section 10.12. |
Successors |
23 |
| Section 10.13. |
Severability |
23 |
| Section 10.14. |
Table of Contents, Headings, Etc. |
23 |
| Section 10.15. |
Securities in a Foreign Currency |
24 |
| Section 10.16. |
Judgment Currency |
24 |
| Section 10.17. |
Force Majeure |
24 |
| Section 10.18. |
U.S.A. Patriot Act |
24 |
| |
|
| ARTICLE XI. SINKING FUNDS |
24 |
| Section 11.1. |
Applicability of Article |
24 |
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
25 |
| Section 11.3. |
Redemption of Securities for Sinking Fund |
25 |
APREA THERAPEUTICS, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of , 20
| § 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| §311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not Applicable |
| §312(a) |
|
2.6 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| §313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| §314(a) |
|
4.2, 10.5 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
10.4 |
| (c)(2) |
|
10.4 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
10.5 |
| (f) |
|
Not Applicable |
| §315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| §316(a) |
|
2.10 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| §317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.5 |
| §318(a) |
|
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 Aprea Therapeutics, Inc.,
a Delaware corporation (“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.
“Additional Amounts” means any additional amounts
which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“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, and any Additional Amounts in respect of, 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.
“Senior Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (i) the Company indebtedness (including indebtedness of others guaranteed by the Company),
whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture Securities issued under this Indenture and
denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding
it is provided that this indebtedness is not senior or prior in right of payment to the subordinated Securities; and (ii) renewals,
extensions, modifications and refinancings of any such indebtedness.
“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 or an agency of 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.
| TERM | |
DEFINED
IN
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 | |
| “New York Banking Day” | |
| 10.16 | |
| “Notice Agent” | |
| 2.4 | |
| “optional sinking fund payment” | |
| 11.1 | |
| “Paying Agent” | |
| 2.4 | |
| “Registrar” | |
| 2.4 | |
| “Required Currency” | |
| 10.16 | |
| “Specified Courts” | |
| 10.10 | |
| “successor person” | |
| 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 2.2.24) 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 designation or 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 total principal amount of the Series, the denominations
in which the offered Securities will be issued and whether the offering may be reopened for additional Securities of that Series and
on what terms;
2.2.3. the percentage of the principal amount at which the Securities
of the Series will be issued;
2.2.4. the date or dates on which principal will be payable;
2.2.5. the rate or rates (which may be either fixed or variable) and/or,
if applicable, the method of determining such rate or rates of interest, if any, the date or dates from which any interest shall accrue,
or the method of determining such date or dates, and the date or dates on which any interest will be payable;
2.2.6. the terms for redemption, extension or early repayment, if
any;
2.2.7. the currencies in which the Series are issued and payable;
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. whether the amount of payments of principal, interest or premium,
if any, on a Series of the Securities will be determined with reference to an index, formula or other method and how these amounts
will be determined;
2.2.10. the place or places of payment, transfer, conversion and/or
exchange of the Securities;
2.2.11. any restrictive covenants;
2.2.12. whether the Series of Securities are issuable in certified
form
2.2.13. any provisions for legal defeasance or covenant defeasance;
2.2.14. whether and under what circumstances we will pay Additional
Amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the Securities
rather than pay the Additional Amounts (and the terms of this option);
2.2.15. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.16. the provisions for convertibility or exchangeability of the
Securities of the Series into or for any other Securities;
2.2.17. whether the Securities are subject to subordination and the
terms of such subordination;
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 listing of Securities of such Series on any securities
exchange;
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 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;
2.2.23. 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
2.2.24. 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.
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. 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 2.8. 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 2.7, 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 2.9 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 2.9. 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 2.10. 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 2.11. 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 2.12. 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 2.13. Global Securities.
2.13.1. 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.
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.
2.13.2. 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.”
2.13.3. 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.
2.13.4. 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.
2.13.5 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 2.14. 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 2.2.15, 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, each
year, the Company shall furnish to the Trustee an Officer’s Certificate stating that to their knowledge the Company is in compliance
with this Indenture and the Securities, or else specifying any Default.
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
all of the following conditions are met:
(a) if the Company does not survive such transaction or the Company
conveys, transfers or leases its properties and assets substantially as an entirety, the acquiring company must be a corporation, limited
liability company, partnership or trust, or other corporate form, organized under the laws of any state of the United States or the District
of Columbia, and such company must agree to be legally responsible for our Securities, and, if not already subject to the jurisdiction
of any state of the United States or the District of Columbia, the new company must submit to such jurisdiction for all purposes with
respect to the Securities and appoint an Agent for service of process;
(b) alternatively, the Company must be the surviving Company;
(c) 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, or any premium on,
any Security of that Series at its Maturity; or
(c) the Company remains in breach of a covenant in respect of
Securities of the Series for 90 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.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default has occurred and has not been cured or waived
(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 (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 2.7, 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).
Section 6.15 Subordination
Upon any distribution of our assets upon the Company’s dissolution,
winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any Securities denominated
as subordinated Securities is to be subordinated to the extent provided in this Indenture in right of payment to the prior payment in
full of all Senior Indebtedness, but the Company’s obligation to Holders to make payment of the principal of (and premium, if any)
and interest on such subordinated Securities will not otherwise be affected. In addition, no payment on account of principal (or premium,
if any), interest or sinking fund, if any, may be made on such subordinated Securities at any time unless full payment of all amounts
due in respect of the principal (and premium, if any), interest and sinking fund, if any, on Senior Indebtedness has been made or duly
provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment from
the Company is received by the Trustee in respect of subordinated Securities or by the Holders of any of such subordinated Securities
before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the Holders of the Senior Indebtedness
or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has
been paid in full, after giving effect to any concurrent payment or distribution to the Holders of the Senior Indebtedness. Subject to
the payment in full of all Senior Indebtedness, the Holders of such subordinated Securities will be subrogated to the rights of the Holders
of the Senior Indebtedness to the extent of payments made to the Holders of the Senior Indebtedness out of the distributive share of such
subordinated Securities.
By reason of this subordination, in the event of a distribution of
our assets upon the Company’s insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated
Securities. These subordination provisions will not apply to money and Securities held in trust under the defeasance provisions of this
Indenture.
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 after 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, 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, 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 or any Additional Amounts with respect to 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.
9.2.1. The following types of changes may require specific approval
of all of the Holders:
(a) change the Stated Maturity of the principal of or rate of
interest on a Security;
(b) reduce the principal or any amounts due on a Security;
(c) reduce the amount of principal payable upon acceleration of
the Maturity of a Security following a Default;
(d) at any time after a change of control has occurred, reduce
any premium payable upon a change of control;
(e) unless otherwise described in a supplemental indenture, change
the place or currency of payment on a Security;
(f) impair the right of Holders to sue for payment;
(g) adversely affect any right to convert or exchange a Security
in accordance with its terms;
(h) reduce the percentage of Holders of Securities whose consent
is needed to modify or amend this Indenture;
(i) reduce the percentage of Holders of Securities whose consent
is needed to waive compliance with certain provisions of this Indenture or to waive certain Defaults;
(j) modify any other aspect of the provisions of this Indenture
dealing with supplemental indenture, modification and waiver of past Defaults, changes to the quorum or voting requirements or the wavier
of certain covenants; and
(k) change any obligations the Company has to pay Additional Amounts.
9.2.2. Any other change to this Indenture and the Securities shall
require majority approval:
(a) if the change affects only one Series of Securities,
it must be approved by the Holders of a majority in principal amount of that Series; and
(b) if the change affects more than one Series of Securities
issued under the same indenture, it must be approved by the Holders of a majority in principal amount of all of the Series affected
by the change, with all affected Series voting together as one class for this purpose.
The Holders of a majority in principal amount of all of the Series of
Securities issued under this Indenture, voting together as one class for this purpose, may waive Company compliance obligations with respect
to some covenants in this Indenture. However, the Company cannot obtain a waiver of payment default or any of the matters in Section 9.2.1.
Section 9.3. 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 9.4. 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 Section 9.2.2. 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 9.5. 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 9.6. 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: |
|
| |
Aprea Therapeutics, Inc. |
| |
3805 Old Easton Road |
| |
Doylestown, PA 18902 |
| |
Attention: Chief Executive Officer |
| |
Telephone: (617) 463-9385 |
| with copies to: |
|
| |
DLA Piper LLP (US) |
| |
One Liberty Place |
| |
1650 Market Street
Philadelphia, PA 19103-7300 |
| |
Attention: Fahd Riaz, Patrick O’Malley |
| |
Telephone: (215) 656-3316 |
| 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.
| |
APREA 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
DLA Piper LLP (US)
4635 Executive Drive, Suite 1100
San Diego, CA 92121-2133
www.dlapiper.com
January 26, 2024
Aprea Therapeutics, Inc.
3805 Old Easton Road
Doylestown, PA 18902
| Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to
Aprea Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing of a registration
statement on Form S-3 (the “Registration Statement”), filed with the Securities and Exchange Commission
(the “Commission”) on the date hereof, under the Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement includes a base prospectus (the “Base Prospectus”) that provides
that it may be supplemented in the future by one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
The Base Prospectus, as it may be supplemented by one or more Prospectus Supplements, relates to the proposed offering and sale from time
to time, pursuant to Rule 415 under the Securities Act, of up to $150,000,000 in the aggregate of the following securities (the “Securities”):
(i) shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), (ii) shares
of the Company’s preferred stock, $0.001 par value per share (the “Preferred Stock”), (iii) debt securities
of the Company (the “Debt Securities”), (iv) warrants to purchase shares of Common Stock, shares of Preferred
Stock or Debt Securities (the “Warrants”), (v) units (the “Units”) consisting of Common
Stock, Preferred Stock, Debt Securities, Warrants or any combination of the foregoing, and (vi) rights (the “Rights”)
to purchase shares of Common Stock, shares of Preferred Stock, Debt Securities or Units. The Registration Statement also includes a sales
agreement prospectus covering the offering, issuance and sale by the Company of up to a maximum aggregate offering price of $1,000,000
(which amount is included in the $150,000,000 aggregate offering price set forth in the Base Prospectus) of the Company’s Common
Stock that may be issued and sold under the At The Market Offering Agreement, dated January 26, 2024, by and between the Company and H.C.
Wainwright & Co., LLC (the “Sales Agreement Prospectus” and together with the Base Prospectus, the “Prospectus”).
In connection with this opinion
letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of
(i) the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Certificate”), (ii)
the Amended and Restated Bylaws of the Company (the “Bylaws”), (iii) the Form of Indenture (the “Base
Indenture”) by and between the Company and the trustee to be named therein (the “Trustee”) filed
as Exhibit 4.1 to the Registration Statement, (iv) certain resolutions of the Company’s Board of Directors relating to the Registration
Statement, and (v) such other documents, records and other instruments as we have deemed appropriate for purposes of the opinions set
forth herein.
We have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity
with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals
of all documents submitted to us as copies. With respect to matters of fact relevant to our opinions as set forth below, we have relied
upon certificates of officers of the Company, representations made by the Company in documents examined by us and representations of officers
of the Company. We have also obtained and relied upon such certificates and assurances from public officials as we have deemed necessary
for the purposes of our opinions set forth below.
For the purpose of the opinions
set forth below, we have also assumed, without independent investigation or verification, that:
A. the issuance, sale, number
or amount, as the case may be, and terms of Securities to be offered from time to time will be duly authorized and established, in accordance
with the Certificate, the Bylaws and applicable Delaware law (each, a “Corporate Action”), and will not conflict
with or constitute a breach of the terms of any agreement or instrument to which the Company is subject;
B. at the time of issuance
and sale of shares of Common Stock, a sufficient number of shares of Common Stock will be authorized and available for issuance and that
the consideration for the issuance and sale of the Common Stock (or Preferred Stock convertible into Common Stock, Warrants exercisable
for Common Stock or Rights to purchase Common Stock) will be in an amount that is not less than the par value of the Common Stock;
C. prior to the issuance of
shares of one or more series of Preferred Stock, an appropriate certificate of designation relating to each such series of Preferred Stock
will have been duly authorized by Corporate Action and filed with the Secretary of State of the State of Delaware and at the time of issuance
and sale, a sufficient number of shares of Preferred Stock will be authorized, designated and available for issuance and that the consideration
for the issuance and sale of the Preferred Stock (or Warrants exercisable for Preferred Stock or Rights to purchase Preferred Stock) will
be in an amount that is not less than the par value of the Preferred Stock;
D. each series of Debt Securities
will be issued under the Base Indenture and any necessary amendment or supplement thereto (collectively, the “Indenture”)
between the Company and the Trustee, and the execution, delivery and performance of the Indenture will be duly authorized by Corporate
Action, and will not conflict with or constitute a breach of the terms of any agreement or instrument to which the Company is subject;
E. to the extent that the
obligations of the Company under the Indenture may depend upon such matters, the Trustee will be duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; that the Trustee will be duly qualified to engage in the activities
contemplated by the Indenture; that the Indenture will be duly authorized, executed and delivered by the Trustee and will constitute the
legal, valid and binding obligation of such Trustee, enforceable against the Trustee in accordance with its terms; that the Trustee will
be in compliance, generally and with respect to acting as a trustee under the Indenture, with all applicable laws and regulations, and
that the Trustee will have the requisite organizational and legal power and authority to perform its obligations under such Indenture;
F. any Warrants will be issued
under one or more warrant agreements (each, a “Warrant Agreement”) between the Company and the financial institution
identified in the Warrant Agreement as a warrant agent (each, a “Warrant Agent”) and the execution, delivery
and performance of the applicable Warrant Agreement will be duly authorized by Corporate Action, and will not conflict with or constitute
a breach of the terms of any agreement or instrument to which the Company is subject;
G. any Warrants offered under
the Registration Statement and the related Warrant Agreement, as applicable, will be executed in the forms filed as exhibits to the Registration
Statement or incorporated by reference therein;
H. to the extent that the
obligations of the Company under any Warrant Agreement may depend upon such matters, each of the parties thereto other than the Company,
will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and will be duly qualified
to engage in the activities contemplated by such Warrant Agreement; that such Warrant Agreement has been duly authorized, executed and
delivered by such party and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance
with its terms; that such party is in compliance, generally and with respect to acting as a party with respect to its obligations under
such Warrant Agreement, with all applicable laws and regulations, and that such party has the requisite organizational and legal power
and authority to perform its obligations under such Warrant Agreement;
I. any Units will be issued
pursuant to purchase or similar agreements to be entered into by the Company and the parties thereto (each, a “Unit Agreement”)
and the execution, delivery and performance of the applicable Unit Agreement will be duly authorized by Corporate Action, and will not
conflict with or constitute a breach of the terms of any agreement or instrument to which the Company is subject;
J. to the extent that the
obligations of the Company under any Unit Agreement may depend upon such matters, each of the parties thereto other than the Company,
will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and will be duly qualified
to engage in the activities contemplated by such Unit Agreement; that such Unit Agreement has been duly authorized, executed and delivered
by such party and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with
its terms; that such party is in compliance, generally and with respect to acting as a party with respect to its obligations under such
Unit Agreement, with all applicable laws and regulations, and that such party has the requisite organizational and legal power and authority
to perform its obligations under such Unit Agreement;
K. any Units offered under
the Registration Statement and the related purchase or similar agreement, as applicable, will be executed in the forms filed as exhibits
to the Registration Statement or incorporated by reference therein;
L. any Rights will be issued
pursuant to rights agreements (each such rights agreement, a “Rights Agreement”) to be entered into by the Company
and a rights agent (each, a “Rights Agent”) and the execution, delivery and performance of the applicable Rights
Agreement will be duly authorized by Corporate Action, and will not conflict with or constitute a breach of the terms of any agreement
or instrument to which the Company is subject;
M. to the extent that the obligations of the Company
under any Rights Agreement may depend upon such matters, each of the parties thereto other than the Company, will be duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization and will be duly qualified to engage in the activities
contemplated by such Rights Agreement; that such Rights Agreement has been duly authorized, executed and delivered by such party and constitutes
the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; that such party is
in compliance, generally and with respect to acting as a party with respect to its obligations under such Rights Agreement, with all applicable
laws and regulations, and that such party has the requisite organizational and legal power and authority to perform its obligations under
such Rights Agreement;
N. any Rights offered under
the Registration Statement and the related Rights Agreement, as applicable, will be executed in the forms filed as exhibits to the Registration
Statement or incorporated by reference therein;
O. the Registration Statement
and any amendments thereto (including post-effective amendments) will have become effective and such effectiveness shall not have been
terminated or rescinded and will comply with all applicable federal and state laws at the time the Securities are offered and issued as
contemplated by the Registration Statement;
P. a Prospectus Supplement
will have been prepared, delivered (including through compliance with Rule 172 of the General Rules and Regulations promulgated under
the Securities Act) and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws at
the time the Securities are offered and issued as contemplated by the Registration Statement;
Q. all Securities will be
issued and sold in compliance with applicable federal and state securities laws; and
R. a definitive purchase,
underwriting or similar agreement (each, a “Definitive Agreement”) with respect to any Securities offered or
issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto.
Subject to the foregoing and
the other matters set forth herein, it is our opinion that, as of the date hereof:
1. Upon due authorization
by Corporate Action of the issuance and sale of shares of Common Stock and upon issuance and delivery of such shares of Common Stock against
payment for such shares (in an amount at least equal to the aggregate par value of such shares of Common Stock) in accordance with the
terms and provisions of the applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration
Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise of any other Securities
in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration Statement and the
applicable Prospectus Supplement (which shall, in each case, provide for payment of consideration that shall be at least equal to the
aggregate par value of such shares of Common Stock), such shares of Common Stock will be validly issued, fully paid and nonassessable.
2. Upon due authorization
by Corporate Action of the issuance and sale of shares of a series of Preferred Stock and upon issuance and delivery of such shares of
Preferred Stock against payment for such shares (in an amount at least equal to the aggregate par value of such shares of Preferred Stock)
in accordance with the terms and provisions of applicable Definitive Agreements, the terms of the Corporate Action and as contemplated
by the Registration Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise
of any other Securities in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration
Statement and the applicable Prospectus Supplement (which shall, in either case, provide for payment of consideration at least equal to
the aggregate par value of such shares of Preferred Stock), such shares of such series of Preferred Stock will be validly issued, fully
paid and nonassessable.
3. When the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended, the particular series of Debt Securities has been duly established in
accordance with the terms of the applicable Indenture, the specific terms of a particular issuance of Debt Securities have been duly authorized
by Corporate Action and are in accordance with the terms of the Indenture, the Indenture is duly executed and delivered by the Company,
and such Debt Securities have been duly executed, authenticated, completed, issued and delivered, against payment for such Debt Securities,
in accordance with the terms and provisions of the applicable Definitive Agreements, the terms of the Corporate Action and as contemplated
by the Registration Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise
of any other Securities in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration
Statement and the applicable Prospectus Supplement, such Debt Securities will be validly issued and will constitute valid and binding
obligations of the Company, and the Indenture will constitute a valid and binding obligation of the Company, except, with respect to each
of the Debt Securities and the Indenture, as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability
of equitable relief, including specific performance.
4. When a Warrant Agreement
providing for the specific terms of a particular issuance of Warrants has been duly authorized by Corporate Action and has been duly executed
and delivered by the Company and the Warrant Agent named in such Warrant Agreement and such Warrants, conforming to the requirements of
such Warrant Agreement, have been duly countersigned or authenticated, as required, by such Warrant Agent and duly executed and delivered
by the Company against payment for such Warrants in accordance with the terms and provisions of such Warrant Agreement and applicable
Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus
Supplement, such Warrants will be valid and binding obligations of the Company, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity
principles and to limitations on availability of equitable relief, including specific performance.
5. When a Unit Agreement providing
for the specific terms of a particular issuance of Unit has been duly authorized by Corporate Action and has been duly executed and delivered
by the Company and the other parties named in such Unit Agreement and such Units, conforming to the requirements of such Unit Agreement,
have been duly executed and delivered by the Company against payment for such Units in accordance with the terms and provisions of such
Unit Agreement and applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement
and the applicable Prospectus Supplement, such Units will be valid and binding obligations of the Company, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’
rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
6. When a Rights Agreement
providing for the specific terms of a particular issuance of Rights has been duly authorized by Corporate Action and has been duly executed
and delivered by the Company and the Rights Agent named in such Rights Agreement and such Rights, conforming to the requirements of such
Rights Agreement, have been duly countersigned or authenticated, as required, by such Rights Agent and duly executed and delivered by
the Company against payment for such Rights in accordance with the terms and provisions of such Rights Agreement and applicable Definitive
Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement,
such Rights will be valid and binding obligations of the Company, except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles
and to limitations on availability of equitable relief, including specific performance.
The foregoing opinions are limited to the General
Corporation Law of the State of Delaware and, with respect to our opinion in paragraph 3 above, the State of New York, and we express
no opinion with respect to the laws of any other state or jurisdiction. Although the Securities may be issued from time to time on a delayed
or continuous basis, the opinions expressed herein are limited to the laws, including rules and regulations, as in effect on the date
hereof.
The opinion letter is limited to the matters stated herein and no opinions
may be implied or inferred beyond that matters expressly stated herein. The opinions expressed herein are as of the date hereof and we
assume no obligation to update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our attention
or any changes in the law that may hereafter occur.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Prospectus. In giving
such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules or regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ DLA Piper LLP (US)
DLA Piper LLP (US)
Exhibit 5.2
January 26, 2024
Aprea Therapeutics, Inc.
3805 Old Easton Road
Doylestown, PA 18902
RE: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Aprea
Therapeutics, Inc, a Delaware corporation (the “Company”), in connection with the issuance and sale by the
Company from time to time of shares of the Company’s common stock, par value $0.001 per share, having an aggregate offering
price of up to $1.0 million (the “Placement Shares”), pursuant to the Registration Statement on Form S-3 filed
with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the
“Securities Act”), on January 26, 2024, (the “Registration Statement”), the related base
prospectus (the “Base Prospectus”), and the accompanying prospectus supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”), filed with the SEC pursuant to
Rule 424(b) under the Securities Act, and the At The Market Offering Agreement dated January 26, 2024, by and between the Company
and H.C. Wainwright & Co., LLC (the “Sales Agreement”).
In connection with this opinion letter, we have
examined the Registration Statement, the Prospectus, the Sales Agreement, and originals, or copies certified or otherwise identified to
our satisfaction, of the Amended and Restated Certificate of Incorporation, as amended and the Amended and Restated Bylaws
of the Company, and such other documents, records and other instruments as we have deemed appropriate for purposes of the opinion set
forth herein.
We have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals
of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents
submitted to us as copies.
Based upon the foregoing, we are of the opinion
that the Placement Shares have been duly authorized by the Company and, when issued and sold by the Company and delivered by the Company
against receipt of the purchase price therefor, in the manner contemplated by the Sales Agreement, will be validly issued, fully paid
and non-assessable.
The opinions expressed herein are limited to the
Delaware General Corporation Law. It is further understood that this opinion is to be used only in connection with the offer and sale
of Placement Shares while the Registration Statement is effective under the Securities Act.
We hereby consent to the use of this opinion as
Exhibit 5.2 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus Supplement.
In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section
7 of the Securities Act or the rules or regulations of the SEC thereunder.s
Very truly yours,
/s/ DLA Piper LLP (US)
DLA Piper LLP (US)
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under the caption "Experts"
in this Registration Statement (Form S-3) and related Prospectus of Aprea Therapeutics, Inc. for the registration of common stock, preferred
stock, debt securities, warrants, rights to purchase common stock, preferred stock, debt securities or units, as well as units that include
any of these securities and to the incorporation by reference therein of our report dated March 30, 2023, with respect to the consolidated
financial statements of Aprea 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
Iselin, New Jersey
January 24, 2024
Exhibit 107
Calculation of Filing
Fee Table
Form S-3
(Form Type)
Aprea Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
Securities
| |
Security Type |
Security Class
Title |
Fee
Calculation or
Carry Forward
Rule |
Amount
to
be
registered |
Proposed
maximum offering
price per unit |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
registration
fee |
| Fees to Be Paid |
Equity |
Common Stock, par value $0.00033 per share |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Equity |
Preferred Stock, par value $0.00033 per share |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Debt |
Debt Securities |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Other |
Warrants |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Other |
Rights to purchase common stock, preferred stock, debt securities or units |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Other |
Units |
457(o) |
(1) |
(2) |
(3) |
$0.00014760 |
|
| Unallocated (Universal) Shelf |
|
457(o) |
(1) |
(2) |
$150,000,000 |
$0.00014760 |
$22,140(4) |
| |
|
|
|
Total Offering Amounts |
|
$150,000,000 |
$0.00014760 |
$22,140(4) |
| |
|
|
|
Total Fees Previously Paid |
|
|
|
|
| |
|
|
|
Total Fee Offsets |
|
|
|
|
| |
|
|
|
Net Fee Due |
|
|
|
$22,140(4) |
| (1) |
The amount to be registered consists of up to $150,000,000 of an indeterminate amount of common stock, preferred stock, debt securities, warrants, units, and/or rights to purchase common stock, preferred stock, debt securities, or units. There is also being registered hereunder such currently indeterminate number of (i) shares of common stock or other securities of the registrant as may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) shares of preferred stock, common stock, debt securities or units as may be issued upon exercise of warrants registered hereby, as the case may be. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder. |
| (2) |
The proposed maximum aggregate offering price per unit will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder. |
| (3) |
Estimated solely for purposes of computing the registration fee. No separate consideration will be received for (i) common stock or other securities of the registrant that may be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered hereby, or (ii) preferred stock, common stock, debt securities or units that may be issued upon exercise of warrants registered hereby, as the case may be. |
| (4) |
The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act. |
Aprea Therapeutics (NASDAQ:APRE)
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Aprea Therapeutics (NASDAQ:APRE)
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From Apr 2023 to Apr 2024
