TABLE OF CONTENTS
As filed with the U.S. Securities and Exchange Commission on January 10, 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
Ocuphire Pharma, Inc.
(Exact name of registrant as specified in its charter)
Delaware | | | 11-3516358 |
(State or other jurisdiction of
incorporation or organization) | | | (I.R.S. Employer
Identification Number) |
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Dr. George Magrath
Chief Executive Officer
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Phillip D. Torrence, Esq.
Emily J. Johns, Esq.
Honigman LLP
650 Trade Center Way, Suite 200
Kalamazoo, Michigan 49002-0402
(269) 337-7700
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective 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.
Large accelerated filer | | | ☐ | | | | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | | | | Smaller reporting company | | | ☒ |
| | | | | | | | | Emerging growth company | | | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
TABLE OF CONTENTS
EXPLANATORY NOTE
We are filing this registration statement with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process to replace our prior registration statement (File No. 333-252715) that will expire on February 12, 2024, in accordance with applicable SEC regulations. Under this shelf registration statement, we may, from time to time, sell any combination of the securities described herein, in one or more offerings, up to a maximum aggregate offering price of $175,000,000.
This Registration Statement on Form S-3 of Ocuphire Pharma, Inc., or the Registrant, contains three prospectuses:
• | a base prospectus, which covers the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of $175,000,000 of its common stock, preferred stock, debt securities and/or warrants to purchase any of such securities from time to time in one or more offerings; |
• | a sales agreement prospectus covering the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of $40,000,000 (which amount is included in the $175,000,000 aggregate offering price set forth in the base prospectus) of its common stock that may be issued and sold under Capital on DemandTM Sales Agreement dated March 11, 2021, by and among the Registrant, JonesTrading Institutional Services LLC, or JonesTrading, or the Sales Agreement; and |
• | a purchase agreement prospectus covering the offering, issuance and sale by the Registrant of up to a maximum aggregate offering price of $50,000,000 of its common stock that may be issued and sold under a Purchase Agreement dated August 10, 2023, by and between the Registrant and Lincoln Park Capital Fund, LLC, or the Purchase Agreement, and 246,792 shares of common stock issued to Lincoln Park as consideration for its commitment to purchase shares of the Registrant's common stock under the Purchase Agreement (which amounts are included in the $175,000,000 aggregate offering price set forth in the base prospectus). |
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 one or more prospectus supplements to the base prospectus. The prospectus related to the offering of shares of our common stock under the Sales Agreement immediately follows the base prospectus. In the event of the termination of the Sales Agreement, any portion of the $40,000,000 included in the sales agreement prospectus contained in this registration statement that is not sold pursuant to the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the Sales Agreement, the full $40,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement. The purchase agreement prospectus immediately follows the sales agreement prospectus. Upon termination of the Purchase Agreement, any portion of the $50,000,000 included in the purchase agreement prospectus that is not sold pursuant to the Purchase Agreement will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the Purchase Agreement, the full $50,000,000 of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
TABLE OF CONTENTS
The information contained in this preliminary 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 preliminary prospectus is not an offer to sell these securities and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 10, 2024
PROSPECTUS
$175,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
We may, from time to time, offer and sell up to $175,000,000 of any combination of the securities described in this prospectus, either individually or in combination, at prices and on terms described in one or more supplements to this prospectus. We may also offer common stock or preferred stock upon conversion of debt securities, or common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon exercise of warrants.
This prospectus describes some of the general terms that may apply to an offering of our securities. We will provide the specific terms of these offerings and securities in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference, before buying any of the securities being offered.
This prospectus may not be used to consummate a sale of securities unless accompanied by a prospectus supplement.
We will sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus on page
27 and in the applicable prospectus supplement. If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters and any applicable discounts or commissions and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is listed on the Nasdaq Capital Market under the symbol “OCUP.” On January 9, 2024, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.25 per share. The applicable prospectus supplement will contain information, where applicable, as to other listings, if any, on the Nasdaq Capital Market or other securities exchange of the securities covered by the prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus on page
7, in our most recent Annual Report on Form 10-K and Quarterly Report on Form 10-Q incorporated by reference into this prospectus, in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
TABLE OF CONTENTS
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
You should rely only on the information contained in, or incorporated by reference into, this prospectus and the applicable prospectus supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering. We have not authorized anyone to provide you with different information. We are not making an offer to sell or seeking an offer to buy securities under this prospectus or the applicable prospectus supplement and any related free writing prospectus in any jurisdiction where the offer or sale is not permitted. The information contained in this prospectus, the applicable prospectus supplement or any related free writing prospectus, and the documents incorporated by reference herein and therein, are accurate only as of their respective dates, regardless of the time of delivery of this prospectus, the applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
TABLE OF CONTENTS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration statement, we may sell from time to time in one or more offerings up to a total dollar amount of $175,000,000 of common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in combination with other securities as described in this prospectus. This prospectus provides you with a general description of the securities we may offer.
Each time we sell any type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. We may also add, update or change in a prospectus supplement or free writing prospectus any of the information contained in this prospectus or in the documents we have incorporated by reference into this prospectus. This prospectus, together with the applicable prospectus supplement, any related free writing prospectus and the documents incorporated by reference into this prospectus and the applicable prospectus supplement, will include all material information relating to the applicable offering. You should carefully read both this prospectus and the applicable prospectus supplement and any related free writing prospectus, together with the additional information described under “Where You Can Find More Information,” before buying any of the securities being offered.
This prospectus may not be used to consummate a sale of securities unless accompanied by a prospectus supplement.
Neither we, nor any agent, underwriter or dealer has authorized anyone to provide you with any information other than contained in, or incorporated by reference into, this prospectus and the applicable prospectus supplement, along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should not assume that the information contained in or incorporated by reference in this prospectus or any prospectus supplement or in any such free writing prospectus is accurate as of any date other than their respective dates. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe that these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those 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. Accordingly, investors should not place undue reliance on this information.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”
Except as otherwise indicated herein or as the context otherwise requires, references in this prospectus to “Ocuphire,” “the company,” “we,” “us,” “our” and similar references refer to Ocuphire Pharma, Inc., a corporation under the laws of the State of Delaware.
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 into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
TABLE OF CONTENTS
This summary highlights selected information contained elsewhere in this prospectus or incorporated by reference herein 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 this prospectus, 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 related notes, and the exhibits to the registration statement of which this prospectus is a part, before making your investment decision.
Ocuphire Pharma, Inc.
Overview
We are a clinical-stage ophthalmic biopharmaceutical company focused on developing novel therapies for the treatment of unmet needs of patients with retinal and refractive eye disorders.
APX3330
Our lead retinal product candidate, APX3330, is a first-in-class small-molecule inhibitor of Ref-1 (reduction oxidation effector factor-1 protein). Ref-1 is a regulator of transcription factors such as HIF-1α and NF-kB. Inhibiting REF-1 reduces levels of vascular endothelial growth factor (“VEGF”) and inflammatory cytokines which are known to play key roles in ocular angiogenesis and inflammation. Through inhibition of Ref-1, APX3330 normalizes the levels of VEGF to physiologic levels, unlike biologics that deplete VEGF below the levels required for normal function. APX3330 is an oral tablet administered twice per day for the treatment of diabetic retinopathy (“DR”).
DR affects approximately 10 million people with diabetes and is projected to impact over 14 million Americans by 2050. DR is classified as Non-Proliferative Diabetic Retinopathy (“NPDR”), the early stage of the disease in which symptoms may be mild or nonexistent or Proliferative Diabetic Retinopathy (“PDR”) which is the more advanced stage of diabetic eye disease that can be highly symptomatic with loss of vision. Approximately 80% of the DR patients have NPDR that will progress to PDR if left untreated. Despite the risk for visual loss associated with this disease, over 90% of NPDR patients currently receive no course of treatment apart from observation by their eye care specialist until they develop sight-threatening complications. This is due to the treatment burden of the frequent eye injections required with currently approved therapies for this disease. APX3330 as an oral tablet has the potential to be an early, non-invasive treatment for the 8 million NPDR patients in the US.
In January 2023, we reported top-line efficacy and safety results from the ZETA-1 Phase 2 trial conducted in 103 subjects (51 treated with 600 mg daily dose of APX3330) in DR, including moderately severe and severe NPDR and mild PDR, as well as patients with diabetic macular edema without loss of central vision. Although administration of APX3330 daily did not meet the study’s primary endpoint of percentage of patients with a ≥ 2-step improvement in Early Treatment of Diabetic Retinopathy Study (“ETDRS”) diabetic retinopathy severity scale (“DRSS”) in the study eye at week 24 compared to placebo, efficacy was seen on the FDA agreed upon registration endpoint of ≥3-step worsening on a binocular DRSS Person Scale. Prevention or slowing of progression of DR to vision-threatening complication such as PDR is a clinically meaningful endpoint. APX3330 also demonstrated favorable safety and tolerability in diabetic patients. A successful End-of-Phase 2 (“EOP2”) meeting with the U.S. Food and Drug Administration (the “FDA”) was held in October 2023 at which we obtained agreement on the Phase 3 registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a Special Protocol Assessment (“SPA”) to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials.
Prior to Ocuphire in-licensing the APX3330 product candidate, it had been studied by other sponsors in a total of 11 clinical trials (6 Phase 1 and 5 Phase 2) in a total of over 420 healthy volunteers or patients (with over 340 APX3330-treated) for inflammatory (hepatic) and oncology indications, and had demonstrated evidence of target engagement, consistent pharmacokinetics, durability, and favorable safety and tolerability. Treatment-related
TABLE OF CONTENTS
adverse events were uncommon, and most were mild in severity. No clinically significant changes were observed in liver, kidney, or heart function. There were no treatment-related effects on hematologic or blood chemistry evaluations. APX3330 demonstrated favorable safety and tolerability in the ZETA-1 trial, consistent with the safety data from the prior 11 clinical trials.
We also in-licensed APX2009 and APX2014, which are second-generation analogs of APX3330. The unique mechanism of action of these Ref-1 inhibitors of reducing angiogenesis and inflammation could potentially be beneficial in treating other retinal diseases such as age-related macular degeneration (“AMD”), and geographic atrophy (“GA”).
We are currently evaluating local delivery routes of APX3330 and its second-generation analogs in addition to the systemic (oral) route as part of its pipeline expansion in retinal therapies.
Phentolamine Ophthalmic Solution 0.75% (POS)
In November 2022, we entered into a license and collaboration agreement (the “Nyxol License Agreement”) with FamyGen_Life Sciences, Inc. (acquired by Viatris, Inc. (“Viatris”) in January 2023) pursuant to which we granted Viatris an exclusive license to develop, manufacture, import, export and commercialize our refractive product candidate Phentolamine Ophthalmic Solution 0.75%, formerly known as Nyxol (“POS”) for treating (a) reversal of pharmacologically-induced mydriasis, (b) night vision disturbances or dim light vision (“DLD”), and (c) presbyopia, and (ii) POS and low dose pilocarpine for treating presbyopia (together, the “Nyxol Products”) worldwide except for certain countries and jurisdictions in Asia (the “Viatris Territory”).
Under the terms of the Nyxol License Agreement, Ocuphire in partnership with Viatris, will develop the Nyxol Products in the United States. Viatris agreed to reimburse us for budgeted costs related to the development of the Nyxol Products through each applicable FDA approval. Viatris is responsible for developing the Nyxol Products in countries and jurisdictions in the Viatris Territory outside of the United States.
POS is a once-daily eye drop formulation of phentolamine mesylate designed to reduce pupil diameter and improve visual acuity. POS can potentially be used across multiple indications such as treatment of pharmacologically-induced mydriasis (“RM”) (dilation of the pupil), presbyopia (age-related blurry near vision) and DLD (halos, glares and starbursts). Our management believes these multiple indications potentially represent a significant market opportunity. POS has been studied in a total of 12 clinical trials (3 Phase 1, 5 Phase 2 and 4 Phase 3) in a total of over 1100 patients (with over 650 POS-treated) and has demonstrated promising clinical data across the three targeted refractive indications.
We submitted a new drug application (“NDA”) to the U.S. Food and Drug Administration (“FDA”) in November 2022 under the 505(b)(2) pathway for POS for RM; the FDA approved the NDA in September 2023 under the brand name RYZUMVI™, which triggered a $10 million milestone payment under the Nyxol License Agreement.
We reported positive top-line data from multiple late-stage clinical trials for POS in RM, presbyopia and DLD. We reported positive top-line data from Phase 3 trials in RM: MIRA-2 in March 2021, MIRA-3 in March 2022 and MIRA-4 in April 2022. We also reported positive top-line data from a Phase 2 trial of POS for treatment of presbyopia, both as monotherapy and with low-dose pilocarpine (pilocarpine hydrochloride ophthalmic solution 0.4%, “LDP”) as adjunctive therapy (VEGA-1). We reported top-line data from a Phase 3 trial in DLD in May 2022 (LYNX-1). The VEGA-2 Phase 3 study in presbyopia achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024. For DLD, a SPA has been submitted and Viatris is also expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
Recent Developments
Clinical Milestones
APX3330
In January 2023, we announced top-line efficacy and safety results from ZETA-1, a Phase 2b trial of APX3330 in diabetic retinopathy patients. In ZETA-1, APX3330 demonstrated favorable safety and tolerability and exhibited efficacy in slowing or prevention of DR worsening on a binocular DRSS Person Scale. The FDA agreed this was an approvable registration endpoint at our EOP2 meeting.
TABLE OF CONTENTS
Phentolamine Ophthalmic Solution 0.75% (POS)
In January 2023, we announced the initiation of the VEGA-2 Phase 3 pivotal trial, the first of two Phase 3 registration trials intended to support a presbyopia indication for POS alone and POS with LDP. The VEGA-2 Phase 3 study achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024.
Regulatory Update
In September 2023, we announced FDA approval of POS under the brand name RYZUMVI™ for the treatment of RM; for this approval we received a $10 million milestone payment under the Nyxol License Agreement.
In October 2023, a SPA was submitted to the FDA for DLD and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
In November 2023, we announced the successful outcome of the EOP2 meeting with the FDA, at which we obtained agreement on the registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a SPA to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials and will share specifics on the study design parameters and anticipated timing once agreed with the FDA.
Management Transitions
On November 1, 2023, the Company announced the appointment of George Magrath, M.D., M.B.A., M.S., as Chief Executive Officer and member of the Board of Directors. As a result of such appointment, Richard Rodgers, who was serving as Interim President and Chief Executive Officer, resigned from such position and remains on the Board.
On November 27, 2023, the Company announced the appointment of Joseph K. Schachle, as Chief Operating Officer.
Purchase Agreement with Lincoln Park Capital Fund, LLC (“Lincoln Park”)
On August 10, 2023, we entered into a common stock purchase agreement (the “Purchase Agreement”) with Lincoln Park, which provides that, upon the terms and subject to the conditions and limitations set forth therein, Ocuphire has the sole right, but not the obligation, to direct Lincoln Park to purchase up to $50 million of shares of our common stock, par value $0.0001 (the “Common Stock”), from time to time over the 30-month term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, Ocuphire also entered into a registration rights agreement with Lincoln Park (the “Registration Rights Agreement”), pursuant to which we agreed to register the resale of the shares of our Common Stock that have been and may be issued to Lincoln Park under the Purchase Agreement pursuant to a registration statement. Upon the execution of the Purchase Agreement, we issued 246,792 shares of Common Stock to Lincoln Park as consideration for its commitment to purchase shares of our Common Stock under the Purchase Agreement. Lincoln Park has agreed not to cause or engage in any manner whatsoever in any direct or indirect short selling or hedging of our Common Stock.
Global Economic Conditions
Generally, worldwide economic conditions remain uncertain, particularly due to the effects of the conflict between Russia and Ukraine and potentially between Israel and Hamas, disruptions in the banking system and financial markets, lingering COVID-19 pandemic, increased inflation and increased interest rates. The general economic and capital market conditions, both in the U.S. and worldwide, have been volatile in the past and at times have adversely affected our access to capital and increased the cost of capital. The capital and credit markets may not be available to support future capital raising activity on favorable terms. If economic conditions decline, our future cost of equity or debt capital and access to the capital markets could be adversely affected.
Additionally, our operating results could be materially impacted by changes in the overall macroeconomic environment and other economic factors. Changes in economic conditions, supply chain constraints, logistics challenges, labor shortages, the conflicts in Ukraine and the Middle East, disruptions in the banking system and financial markets, and steps taken by governments and central banks, particularly in response to the COVID-19 pandemic as well as other stimulus and spending programs, have led to higher inflation, which has led to an increase in costs and has caused changes in fiscal and monetary policy, including increased interest rates.
TABLE OF CONTENTS
Risks Associated with our Business
Our business is subject to numerous risks, as described under the heading “Risk Factors” contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by reference into this prospectus.
Description of Securities We May Offer
We may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or in combination, with a total dollar amount up to $175,000,000 from time to time under this prospectus, together with the applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined at the time of any offering. We may also offer common stock, preferred stock and/or debt securities upon the exercise of warrants. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
• | designation or classification; |
• | aggregate principal amount or aggregate offering price; |
• | original issue discount; |
• | rates and times of payment of interest or dividends; |
• | redemption, conversion, exercise, exchange or sinking fund terms; |
• | conversion or exchange prices or rates and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; and |
• | a discussion of material United States federal income tax considerations, if any. |
The applicable prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly to investors or to or through agents, underwriters or dealers. We, and our or their agents, underwriters or dealers reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents, underwriters or dealers, we will include in the applicable prospectus supplement:
• | the names of those agents, underwriters or dealers; |
• | applicable fees, discounts and commissions to be paid to them; |
• | details regarding over-allotment options, if any; and |
• | the net proceeds to us, if any. |
TABLE OF CONTENTS
Common Stock
We may issue shares of our common stock from time to time. Each holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. Under our amended and restated certificate of incorporation, as amended, or certificate of incorporation, and second amended and restated bylaws, or bylaws, our stockholders do not have cumulative voting rights. Because of this, the holders of a majority of the shares of common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they should so choose. Subject to preferences that may be applicable to any then-outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of common stock are entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted to the holders of any then-outstanding shares of preferred stock. Holders of common stock have no preemptive, conversion or subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate in the future. In this prospectus, we have summarized certain general features of the common stock under “Description of Capital Stock—Common Stock.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to any common stock being offered.
Preferred Stock
We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors will determine the designations, voting powers, preferences and rights of the preferred stock, as well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series, or the designation of such series, any or all of which may be greater than the rights of our common stock. Convertible preferred stock will be convertible into our common stock or exchangeable for other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights of such series of preferred stock, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock that we are offering before the issuance of the related series of preferred stock. In this prospectus, we have summarized certain general features of the preferred stock under “Description of Capital Stock—Preferred Stock.” We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities
We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible or exchangeable debt securities will be convertible into or exchangeable for our common stock or our other securities. Conversion or exchange may be mandatory or optional (at our option or the holders’ option) and would be at prescribed conversion or exchange rates.
Any debt securities issued under this prospectus will be issued under one or more documents called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities under “Description of Debt Securities.” We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as
TABLE OF CONTENTS
well as the complete indenture and any supplemental indentures that contain the terms of the debt securities. A form of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or in combination with common stock, preferred stock and/or debt securities offered by any prospectus supplement. In this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to read the applicable prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as any warrant agreements and warrant certificates, as applicable, that contain the terms of the warrants. We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants.
Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Use of Proceeds
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from this offering for working capital and general corporate purposes, which may include, among other things, funding research and development programs, vendor payables, hiring additional personnel, and capital expenditures.
Company Information
Our principal executive offices are located at 37000 Grand River Avenue, Suite 120, Farmington Hills, MI 48335. Our telephone number is (248) 957-9024. Our website address is www.ocuphire.com. The information contained in, or accessible through, our website does not constitute part of this prospectus, should not be relied on in determining whether to make an investment decision, and the inclusion of our website address in this prospectus is an inactive textual reference only.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” under federal securities laws. For as long as we continue to be a smaller reporting company, we may take advantage of exemptions from various reporting requirements that are applicable to other public companies, including, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements. We may continue to be a smaller reporting company if either (i) the market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our stock held by non-affiliates is less than $700 million. As long as we remain a smaller reporting company and non-accelerated filer, we are exempt from the attestation requirement in the assessment of our internal control over financial reporting by our independent auditors pursuant to section 404(b) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) but are required to make our own internal assessment of the effectiveness of our internal controls over financial reporting.
TABLE OF CONTENTS
Investing in our securities involves a high degree of risk. Before deciding whether to invest in our securities, 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, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future.
The risks described in these documents are not the only ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section below entitled “Forward-Looking Statements.”
TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future results of operations and financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, forward-looking statements may be identified by words such as “anticipate,” “believe,” “continue,” “could,” “design,” “estimate,” “expect,” “intend,” “may,” “plan,” “potentially,” “predict,” “project,” “should,” “will” or the negative of these terms or other similar expressions.
We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. You should refer to the “Risk Factors” section 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, for a discussion of important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking statements. Given these risks, uncertainties and other factors, many of which are beyond our control, we cannot assure you that the forward-looking statements in this prospectus will prove to be accurate, and you should not place undue reliance on these forward-looking statements. These risks include, among other things, that:
• | we currently depend entirely on the success of Phentolamine Ophthalmic Solution 0.75% (POS) and APX3330, our only product candidates, and we may never complete clinical development of, receive marketing approval for, or successfully commercialize, POS alone or as adjunctive therapy with low dose pilocarpine (LDP), APX3330, or other product candidates we may pursue in the future for any indication; |
• | Viatris has exclusive rights to commercialize our POS products in key global markets and Viatris’ failure to timely develop or commercialize these products would have a material adverse effect on our business and operating results; |
• | the results of previous clinical trials may not be predictive of future results, and the results of our current and planned clinical trials may not satisfy the requirements of the FDA or non-U.S. regulatory authorities; |
• | changes in regulatory requirements or FDA guidance, or unanticipated events during our clinical trials, may result in changes to clinical trial protocols or additional clinical trial requirements, which could result in increased costs to us or delays in our development timelines; |
• | we expect to incur losses for the foreseeable future and may never achieve or maintain profitability; |
• | adverse global economic conditions could have a negative effect on our business results of operations and financial condition and liquidity; |
• | adverse developments affecting the financial services industry could negatively affect our current and projected business operations, financial condition and results of operations; |
• | raising additional capital may cause dilution to our stockholders, restrict our operations, or require us to relinquish rights to our technologies or product candidates; |
• | even if we receive marketing approval for our product candidates in the United States, we may never receive regulatory approval to market such product candidates outside of the United States; |
• | our employees or our representatives may engage in misconduct or other improper activities, including violating applicable regulatory standards and requirements or engaging in insider trading, which could significantly harm our business; |
TABLE OF CONTENTS
• | we face substantial competition, which may result in others discovering, developing, or commercializing products before or more successfully than we do; |
• | we lack experience in commercializing products, which may have an adverse effect on our business; |
• | if we are unable to establish sales and marketing capabilities or enter into agreements with third parties to sell, market, and distribute APX3330, if approved, we may not be successful in commercializing APX3330 if and when it is approved; |
• | product liability lawsuits against us, or our suppliers and manufacturers, could cause us to incur substantial liabilities and could limit commercialization of any product candidate that we may develop; |
• | we are unable to control all aspects of our clinical trials due to our reliance on clinical research organizations, contract development and manufacturing organizations and other third parties that assist us in conducting clinical trials; |
• | we are unable to control the supply, manufacture and testing of bulk drug substances and the formulation, testing and packaging of preclinical and clinical drug supplies of our product candidates, and will be unable to control these elements at the commercial stage, due to our reliance on third-party manufacturers and analytical facilities; |
• | if we are not able to establish new collaborations for APX3330 on commercially reasonable terms, we may have to alter our development, manufacturing, and commercialization plans; |
• | if we are unable to obtain and maintain sufficient patent protection for our product candidates, our competitors could develop and commercialize products or technology similar or identical to ours, which would adversely affect our ability to successfully commercialize any product candidates we may develop, our business, results of operations, financial condition and prospects; |
• | if we do not obtain protection under the Hatch-Waxman Act and similar foreign legislation by extending the patent terms and obtaining data exclusivity for our product candidate, our business may be materially harmed; |
• | we may not be able to protect or practice our intellectual property rights throughout the world; |
• | obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment, and other requirements imposed by governmental agencies, and our patent protection could be reduced or eliminated for noncompliance with these requirements; |
• | we depend on intellectual property sublicensed from Apexian Pharmaceuticals, Inc. (“Apexian”) for our APX3330 product candidate under development and our additional pipeline candidates, and the termination of, or reduction or loss of rights under, this sublicense would harm our business; |
• | we are dependent on our key personnel, and if we are not successful in attracting and retaining highly qualified personnel, we may not be able to successfully implement our business strategy; |
• | we will need to develop and expand our company and may encounter difficulties in managing this development and expansion, which could disrupt our operations; |
• | our insurance policies are expensive and protect only from some business risk, which leaves us exposed to significant uninsured liabilities; |
• | environmental, social, and governance matters and any related reporting obligations may impact our business; |
• | if we fail to comply with the continued listing standards of the Nasdaq Capital Market, our common stock could be delisted. If it is delisted, our common stock price and the liquidity of our common stock would be impacted; |
• | the market price of our common stock may fluctuate significantly; |
• | we may be subject to securities litigation, which is expensive and could divert management attention; and |
• | there is uncertainty regarding the use of proceeds, if any, from this offering. |
TABLE OF CONTENTS
These risks are not exhaustive. Other sections of this prospectus may include additional factors that could harm our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment.
New risks and uncertainties emerge from time to time, and it is not possible for our management to predict all risks and uncertainties nor can we assess the impact of all such factors on our business or the extent to which any such factor, or combination of such factors, may cause actual results to differ from those contained in, or implied by, any forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Except as required by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus or to conform these statements to actual results or to changes in our expectations.
In addition, “we believe” and “we expect” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and achievements may be different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
TABLE OF CONTENTS
Except as described in any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a specific offering, we currently intend to use the net proceeds from this offering for working capital and general corporate purposes, which may include, among other things, funding research and development programs, vendor payables, hiring additional personnel, and capital expenditures.
TABLE OF CONTENTS
DESCRIPTION OF CAPITAL STOCK
General
As of the date of this prospectus, our certificate of incorporation authorizes us to issue up to 85,000,000 shares of capital stock, all with a par value of $0.0001 per share, of which: 75,000,000 shares are designated as common stock and 10,000,000 shares are designated as preferred stock.
The following summary describes the material terms of our capital stock. The description of capital stock is qualified by reference to our certificate of incorporation and our bylaws.
Common Stock
As of September 30, 2023, 22,610,131 shares of common stock were outstanding. All outstanding shares of common stock are duly authorized, validly issued, fully paid, and nonassessable. All authorized but unissued shares of our common stock are available for issuance by our board of directors without any further stockholder action, except as required by the listing standards of Nasdaq.
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, including the election of directors, and do not have cumulative voting rights. Accordingly, the holders of a majority of the outstanding shares of common stock entitled to vote in any election of directors can elect all of the directors standing for election, if they so choose, other than any directors that holders of any preferred stock we may issue may be entitled to elect.
Dividend Rights
Subject to preferences that may be applicable to any then-outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends, if any, as may be declared by the board of directors out of legally available funds.
Liquidation
In the event of our liquidation, dissolution, or winding up, the holders of common stock will be entitled to share ratably in the assets legally available for distribution to stockholders after the payment of or provision for all of our debts and other liabilities, subject to the prior rights of any preferred stock then-outstanding.
Rights and Preferences
Holders of common stock have no preemptive or conversion rights or other subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. 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
As of September 30, 2023, no shares of preferred stock were outstanding. Our board of directors may, without further action by our stockholders, fix the rights, preferences, privileges and restrictions of up to an aggregate of 10,000,000 shares of preferred stock in one or more series and authorize their issuance. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, any or all of which may be greater than the rights of our common stock. The issuance of our preferred stock could adversely affect the voting power of holders of our common stock and the likelihood that such holders will receive dividend payments and payments upon liquidation. In addition, the issuance of preferred stock could have the effect of decreasing the market price of our common stock and could also have the effect of delaying, deferring or preventing a change of control or other corporate action.
We will fix the designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the registration statement of which this prospectus
TABLE OF CONTENTS
is a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering. We will describe in the applicable prospectus supplement the terms of the series of preferred stock being offered, including, to the extent applicable:
• | the title and stated value; |
• | the number of shares we are offering; |
• | the liquidation preference per share; |
• | the dividend rate, period and payment date and method of calculation for dividends; |
• | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
• | the procedures for any auction and remarketing; |
• | the provisions for a sinking fund; |
• | the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; |
• | any listing of the preferred stock on any securities exchange or market; |
• | whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period; |
• | whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period; |
• | voting rights of the preferred stock; |
• | restrictions on transfer, sale or other assignment; |
• | whether interests in the preferred stock will be represented by depositary shares; |
• | a discussion of material United States federal income tax considerations applicable to the preferred stock; |
• | the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
• | any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
• | any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
If we issue shares of preferred stock under this prospectus, the shares will be fully paid and non-assessable.
Options and Restricted Stock
As of September 30, 2023, (i) 1,016,033 shares of common stock remain available for issuance under our 2020 Plan and 2021 Inducement Plan, stock options to purchase an aggregate of 2,249,950 shares of common stock were outstanding under our 2020 Equity Incentive Plan, or 2020 Plan, stock options to purchase an aggregate of 133,000 shares of common stock were outstanding under our 2021 Inducement Plan, and stock options to purchase an aggregate of 1,086,439 shares of common stock were outstanding under our 2018 Equity Incentive Plan, or 2018 Plan, and (ii) 282,008 unvested shares of restricted stock were outstanding.
Warrants
As of September 30, 2023, 7,262,896 warrants to purchase shares of our capital stock were outstanding, with a weighted average exercise price of $5.09 (subject to adjustment).
TABLE OF CONTENTS
Anti-Takeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation and second amended and restated bylaws contain provisions that could make it more difficult to complete an acquisition of us by means of a tender offer, a proxy contest or otherwise or the removal and replacement of our incumbent officers and directors.
Removal of Directors; Board Vacancies; Board Size. Our amended and restated certificate of incorporation provides for the removal of any of our directors only for cause and requires a stockholder vote of at least a majority of the voting power of the then outstanding voting stock. In addition, our amended and restated certificate of incorporation provides that any vacancy occurring on our board of directors may be filled by a majority of directors then in office, even if less than a quorum, unless the board of directors determines that such vacancy shall be filled by the stockholders. Finally, the authorized number of directors may be changed only by a resolution of the board of directors. This system of removing directors, filling vacancies and fixing the size of the board makes it more difficult for stockholders to replace a majority of the directors.
Special Stockholder Meetings. Our amended and restated certificate of incorporation and our second amended and restated bylaws provide that a special meeting of stockholders may be called only by a resolution adopted by a majority of our board of directors or by the chairman of the board.
Stockholder Advance Notice Procedure. Our second amended and restated bylaws establish an advance notice procedure for stockholders to make nominations of candidates for election as directors or to bring other business before an annual meeting of our stockholders. The second amended and restated bylaws provide that any stockholder wishing to nominate persons for election as directors at, or bring other business before, an annual meeting must deliver to our secretary a written notice of the stockholder’s intention to do so. To be timely, the stockholder’s notice must be delivered to or mailed and received by us not more than 120 days, and not less than 90 days before the anniversary date of the preceding annual meeting, except that if the annual meeting is set for a date that is not within 30 days before or 60 days after such anniversary date, we must receive the notice not earlier than the close of business on the 120th day prior to the annual meeting and not later than the close of business on the later of (i) the 90th day prior to the annual meeting or (ii) the tenth day following the day on which we first made public announcement of the date of meeting. The notice must include the following information:
• | as to director nominations, all information relating to each director nominee that is required by the rules of the Securities and Exchange Commission to be disclosed in solicitations of proxies, or is otherwise required by Regulation 14A of the Exchange Act; |
• | as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business to be proposed, the reasons for conducting such business at the meeting and, if any, the stockholder’s material interest in the proposed business; and |
• | the name and address of the stockholder who intends to make the nomination and the class and number of our shares beneficially owned of record; |
Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could have the effect of delaying, deferring, preventing or otherwise impeding any attempt to change control of us.
Delaware Anti-Takeover Statute. We are subject to Section 203 of the Delaware General Corporation Law, which prohibits persons deemed “interested stockholders” from engaging in a “business combination” with a publicly traded Delaware corporation for three years following the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder” is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, such as discouraging takeover attempts that might result in a premium over the market price of our common stock.
Business Combinations with Interested Stockholders. Our amended and restated certificate of incorporation provides that certain “business combinations” with “interested stockholders” require approval by the holders of
TABLE OF CONTENTS
at least a majority of the voting power of our then outstanding shares of voting stock not beneficially owned by any interested stockholder or an affiliate or associate thereof. The foregoing restriction does not apply, however, if the transaction is either approved by a majority of our “continuing directors” or certain minimum price and procedural and other requirements are met. Generally, a “business combination” includes a merger, consolidation, liquidation, recapitalization or other similar transaction or a sale, lease, transfer or other disposition of assets or securities having an aggregate fair market value of $15 million or more. An “interested stockholder” generally means a beneficial owner of 20% or more of our voting stock, certain assignees of such beneficial owners and certain of our affiliates that within the preceding two years were the beneficial owner of 20% or more of our voting stock. A “continuing director” is defined as any member of our board who is not an affiliate or associate or representative of the interested stockholder and was a member of the board prior to the time the interested stockholder became such, and any successor of a continuing director who is unaffiliated with the interested stockholder and is recommended or elected by at least two-thirds of the continuing directors then on the board.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Equiniti Trust Company.
Listing on the Nasdaq Capital Market
Our common stock is listed on the Nasdaq Capital Market under the symbol “OCUP.”
TABLE OF CONTENTS
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
• | the title of the series of debt securities; |
• | any limit upon the aggregate principal amount that may be issued; |
• | the maturity date or dates; |
• | the form of the debt securities of the series; |
• | the applicability of any guarantees; |
• | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
• | whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination; |
• | if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined; |
TABLE OF CONTENTS
• | the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
• | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
• | if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
• | the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
• | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
• | any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
• | whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities; |
• | if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
• | if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
• | additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant; |
• | additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
• | additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
• | additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
• | additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; |
• | the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
• | whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made; |
• | the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
• | any restrictions on transfer, sale or assignment of the debt securities of the series; and |
• | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
TABLE OF CONTENTS
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities that we may issue:
• | if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
• | if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
• | if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
• | if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
TABLE OF CONTENTS
Subject to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
• | the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
• | subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
• | the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
• | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
• | such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and |
• | the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without the consent of any holders with respect to specific matters:
• | to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
• | to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
• | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
• | to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture; |
• | to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
• | to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
• | to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
TABLE OF CONTENTS
• | to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
• | to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
• | extending the fixed maturity of any debt securities of any series; |
• | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or |
• | reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
• | register the transfer or exchange of debt securities of the series; |
• | replace stolen, lost or mutilated debt securities of the series; |
• | pay principal of and premium and interest on any debt securities of the series; |
• | maintain paying agencies; |
• | hold monies for payment in trust; |
• | recover excess money held by the trustee; |
• | compensate and indemnify the trustee; and |
• | appoint any successor trustee. |
In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required
TABLE OF CONTENTS
by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
• | issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
• | register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is applicable.
TABLE OF CONTENTS
The following description, together with the additional information we may include in any applicable prospectus supplement and free writing prospectus, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently or in combination with common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectus, and the complete form of warrant and/or the warrant agreement and warrant certificate, as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
• | the offering price and aggregate number of warrants offered; |
• | the currency for which the warrants may be purchased; |
• | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
• | in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
• | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
• | the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
• | the terms of any rights to redeem or call the warrants; |
• | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
• | the dates on which the right to exercise the warrants will commence and expire; |
• | the manner in which the warrant agreements and warrants may be modified; |
• | a discussion of any material or special U.S. federal income tax considerations of holding or exercising the warrants; |
• | the terms of the securities issuable upon exercise of the warrants; and |
• | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
TABLE OF CONTENTS
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
• | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
• | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
Upon receipt of payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we otherwise specify in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
TABLE OF CONTENTS
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any applicable trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the legal holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
TABLE OF CONTENTS
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out:
• | how it handles securities payments and notices; |
• | whether it imposes fees or charges; |
• | how it would handle a request for the holders’ consent, if ever required; |
• | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; |
• | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
• | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
• | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; |
• | an investor will be an indirect holder and must look to his or her own bank, broker or other financial institution for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above; |
• | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; |
TABLE OF CONTENTS
• | an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
• | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security; |
• | we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way; |
• | the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your bank, broker or other financial institution may require you to do so as well; and |
• | financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations when a Global Security will be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks, brokers or other financial institutions to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
• | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; |
• | if we notify any applicable trustee that we wish to terminate that global security; or |
• | if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
TABLE OF CONTENTS
We may sell our securities covered by this prospectus in any of three ways (or in any combination):
• | to or through underwriters or dealers; |
• | directly to one or more purchasers; or |
We may distribute the securities:
• | from time to time in one or more transactions at a fixed price or prices, which may be changed from time to time; |
• | at market prices prevailing at the time of sale; |
• | at prices related to the prevailing market prices; or |
Each time we offer and sell securities covered by this prospectus, we will provide a prospectus supplement or supplements, if necessary, that will describe the method of distribution and set forth the terms of the offering, including:
• | the name or names of any underwriters, dealers or agents; |
• | the amounts of securities underwritten or purchased by each of them; |
• | the purchase price of securities and the proceeds, if any, we will receive from the sale; |
• | any over-allotment options under which underwriters may purchase additional securities from us; |
• | any underwriting discounts or commissions or agency fees and other items constituting underwriters’ or agents’ compensation; |
• | the public offering price of the securities; |
• | any discounts, commissions or concessions allowed or reallowed or paid to dealers; and |
• | any securities exchange or market on which the securities may be listed. |
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. We may determine the price or other terms of the securities offered under this prospectus by use of an electronic auction. We will describe how any auction will determine the price or any other terms, how potential investors may participate in the auction and the nature of the obligations of the underwriter, dealer or agent in the applicable prospectus supplement.
Underwriters or dealers may offer and sell the offered securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. If underwriters or dealers are used in the sale of any securities, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions described above. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters or dealers. Generally, the underwriters’ or dealers’ obligations to purchase the securities will be subject to certain conditions precedent. The underwriters or dealers will be obligated to purchase all of the securities if they purchase any of the securities, unless otherwise specified in the prospectus supplement. We may use underwriters with whom we have a material relationship. We will describe the nature of any such relationship in the prospectus supplement, naming the underwriter.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment. We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
TABLE OF CONTENTS
Agents, dealers and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
All securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act of 1934, as amended. Overallotment involves sales in excess of the offering size, which create a short position. This short sales position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount not greater than the underwriters’ over-allotment option to purchase additional securities in this offering described above. The underwriters may close out any covered short position either by exercising their over-allotment option or by purchasing securities in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of securities available for purchase in the open market, as compared to the price at which they may purchase securities through the over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the securities that could adversely affect investors who purchase securities in this offering. Stabilizing transactions permit bids to purchase the underlying security for the purpose of fixing the price of the security so long as the stabilizing bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions.
Any underwriters who are qualified market makers on the Nasdaq Capital Market may engage in passive market making transactions in our common stock, preferred stock, warrants and debt securities, as applicable, on the Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
Similar to other purchase transactions, an underwriter’s purchase to cover the syndicate short sales or to stabilize the market price of our securities may have the effect of raising or maintaining the market price of our securities
TABLE OF CONTENTS
or preventing or mitigating a decline in the market price of our securities. As a result, the price of our securities may be higher than the price that might otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of the securities if it discourages resales of the securities.
Neither we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the price of the securities. If such transactions are commenced, they may be discontinued without notice at any time.
We will pay all expenses of the registration of the shares of common stock pursuant to the waiver agreements, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
TABLE OF CONTENTS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus, and any supplement thereto, will be passed upon for us by Honigman LLP.
The consolidated financial statements of Ocuphire Pharma, Inc. appearing in Ocuphire Pharma, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such consolidated financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon such report of Ernst & Young LLP pertaining to such financial statements (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including Ocuphire. The address of the SEC website is www.sec.gov.
We maintain a website at www.ocuphire.com. Information contained in or accessible through our website does not constitute a part of this prospectus.
TABLE OF CONTENTS
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings (including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the termination of the offering of the shares covered by this prospectus (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K):
• | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, and the information specifically incorporated by reference into our Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 1, 2023; |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023 filed with the SEC on May 15, 2023, August 11, 2023, and November 13, 2023 respectively; |
• | our Current Reports on Form 8-K filed with the SEC on January 25, 2023, April 21, 2023, June 2, 2023, June 9, 2023, June 14, 2023, August 11, 2023; September 27, 2023; November 1, 2023; November 2, 2023; November 27, 2023; and December 6, 2023; and |
• | the description of common stock set forth in the Registration Statement on Form 8-A, filed with the SEC on June 7, 2019, including any amendments thereto or reports filed for the purposes of updating this description, as updated by Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, including any amendments or reports filed for the purposes of updating this description. |
We will furnish without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents. You may request a copy of these documents by writing or telephoning us at the following address:
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
Attn: Dr. George Magrath, Chief Executive Officer
TABLE OF CONTENTS
$175,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
PROSPECTUS
, 2024
TABLE OF CONTENTS
The information contained in this preliminary 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 preliminary prospectus is not an offer to sell these securities and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 10, 2024
PROSPECTUS
Up to $40,000,000
Common Stock
This sales agreement prospectus relates to the issuance and sale of shares of our common stock having an aggregate offering price of up to $40,000,000 from time to time pursuant to a Capital on DemandTM Sales Agreement dated March 11, 2021, or Sales Agreement, with JonesTrading Institutional Services LLC, or JonesTrading, relating to the shares of our common stock offered by this prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell through or to JonesTrading, as sales agent or principal, shares of our common stock from time to time having aggregate sales proceeds of up to $40,000,000. Prior to January 8, 2024, we have offered and sold shares of our common stock having an aggregate gross sales price of approximately $22.7 million pursuant to the Sales Agreement. As a result of such prior sales, as of January 8, 2024, shares of our common stock having an aggregate gross sales price of up to $17.3 million remain available for offer and sale from time to time through JonesTrading pursuant to the Sales Agreement and this prospectus.
Our common stock is traded on the Nasdaq Capital Market under the symbol “OCUP.” On January 9, 2024, the last reported sales price of our common stock on the Nasdaq Capital Market was $3.25 per share.
Sales of our common stock, if any, under this prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. JonesTrading will act as sales agent using commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between JonesTrading and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to JonesTrading for sales of common stock sold pursuant to the Sales Agreement will be an amount equal to up to 3.0% of the gross proceeds of any shares of common stock sold under the Sales Agreement. In connection with the sale of the common stock on our behalf, JonesTrading will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of JonesTrading will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to JonesTrading with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “
Risk Factors” contained in this prospectus on page S-
6, on page
7 of the base prospectus, in our most recent
Annual Report on Form 10-K incorporated by reference into this prospectus, and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
TABLE OF CONTENTS
Prospectus
TABLE OF CONTENTS
This prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process under the Securities Act of 1933, as amended, or the Securities Act.
We have not, and JonesTrading has not, authorized anyone to provide you with information different than or inconsistent with the information contained in or incorporated by reference in this prospectus and in any free writing prospectus that we have authorized for use in connection with this offering. We and JonesTrading take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not, and JonesTrading is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, the documents incorporated by reference in this prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective documents, regardless of the time of delivery 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 have authorized for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of our 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 our 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.
Unless the context indicates otherwise, as used in this prospectus, the terms “Ocuphire,” “the Company,” “we,” “us” and “our” refer to Ocuphire Pharma, Inc., a Delaware corporation, and its wholly-owned subsidiary on a consolidated basis. This prospectus and the information incorporated by reference herein and therein contain references to our trademarks and to trademarks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus and the information incorporated by reference herein and therein, including logos, artwork and other visual displays, may appear without the ® or TM symbols, but such references are not intended to indicate, in any way, that their respective owners will not assert, to the fullest extent permitted under applicable law, their rights thereto. We do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
TABLE OF CONTENTS
This summary highlights selected information contained elsewhere in this prospectus or incorporated by reference herein 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 this prospectus, 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 related notes, and the exhibits to the registration statement of which this prospectus is a part, before making your investment decision.
Ocuphire Pharma, Inc.
Overview
We are a clinical-stage ophthalmic biopharmaceutical company focused on developing novel therapies for the treatment of unmet needs of patients with retinal and refractive eye disorders.
APX3330
Our lead retinal product candidate, APX3330, is a first-in-class small-molecule inhibitor of Ref-1 (reduction oxidation effector factor-1 protein). Ref-1 is a regulator of transcription factors such as HIF-1α and NF-kB. Inhibiting REF-1 reduces levels of vascular endothelial growth factor (“VEGF”) and inflammatory cytokines which are known to play key roles in ocular angiogenesis and inflammation. Through inhibition of Ref-1, APX3330 normalizes the levels of VEGF to physiologic levels, unlike biologics that deplete VEGF below the levels required for normal function. APX3330 is an oral tablet administered twice per day for the treatment of diabetic retinopathy (“DR”).
DR affects approximately 10 million people with diabetes and is projected to impact over 14 million Americans by 2050. DR is classified as Non-Proliferative Diabetic Retinopathy (“NPDR”), the early stage of the disease in which symptoms may be mild or nonexistent or Proliferative Diabetic Retinopathy (“PDR”) which is the more advanced stage of diabetic eye disease that can be highly symptomatic with loss of vision. Approximately 80% of the DR patients have NPDR that will progress to PDR if left untreated. Despite the risk for visual loss associated with this disease, over 90% of NPDR patients currently receive no course of treatment apart from observation by their eye care specialist until they develop sight-threatening complications. This is due to the treatment burden of the frequent eye injections required with currently approved therapies for this disease. APX3330 as an oral tablet has the potential to be an early, non-invasive treatment for the 8 million NPDR patients in the US.
In January 2023, we reported top-line efficacy and safety results from the ZETA-1 Phase 2 trial conducted in 103 subjects (51 treated with 600 mg daily dose of APX3330) in DR, including moderately severe and severe NPDR and mild PDR, as well as patients with diabetic macular edema without loss of central vision. Although administration of APX3330 daily did not meet the study’s primary endpoint of percentage of patients with a ≥ 2-step improvement in Early Treatment of Diabetic Retinopathy Study (“ETDRS”) diabetic retinopathy severity scale (“DRSS”) in the study eye at week 24 compared to placebo, efficacy was seen on the FDA agreed upon registration endpoint of ≥3-step worsening on a binocular DRSS Person Scale. Prevention or slowing of progression of DR to vision-threatening complication such as PDR is a clinically meaningful endpoint. APX3330 also demonstrated favorable safety and tolerability in diabetic patients. A successful End-of-Phase 2 (“EOP2”) meeting with the U.S. Food and Drug Administration (the “FDA”) was held in October 2023 at which we obtained agreement on the Phase 3 registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a Special Protocol Assessment (“SPA”) to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials.
Prior to Ocuphire in-licensing the APX3330 product candidate, it had been studied by other sponsors in a total of 11 clinical trials (6 Phase 1 and 5 Phase 2) in a total of over 420 healthy volunteers or patients (with over 340 APX3330-treated) for inflammatory (hepatic) and oncology indications, and had demonstrated evidence of target engagement, consistent pharmacokinetics, durability, and favorable safety and tolerability. Treatment-related
TABLE OF CONTENTS
adverse events were uncommon, and most were mild in severity. No clinically significant changes were observed in liver, kidney, or heart function. There were no treatment-related effects on hematologic or blood chemistry evaluations. APX3330 demonstrated favorable safety and tolerability in the ZETA-1 trial, consistent with the safety data from the prior 11 clinical trials.
We also in-licensed APX2009 and APX2014, which are second-generation analogs of APX3330. The unique mechanism of action of these Ref-1 inhibitors of reducing angiogenesis and inflammation could potentially be beneficial in treating other retinal diseases such as age-related macular degeneration (“AMD”), and geographic atrophy (“GA”).
We are currently evaluating local delivery routes of APX3330 and its second-generation analogs in addition to the systemic (oral) route as part of its pipeline expansion in retinal therapies.
Phentolamine Ophthalmic Solution 0.75% (POS)
In November 2022, we entered into a license and collaboration agreement (the “Nyxol License Agreement”) with FamyGen Life Sciences, Inc. (acquired by Viatris, Inc. (“Viatris”) in January 2023) pursuant to which we granted Viatris an exclusive license to develop, manufacture, import, export and commercialize our refractive product candidate Phentolamine Ophthalmic Solution 0.75%, formerly known as Nyxol (“POS”) for treating (a) reversal of pharmacologically-induced mydriasis, (b) night vision disturbances or dim light vision (“DLD”), and (c) presbyopia, and (ii) POS and low dose pilocarpine for treating presbyopia (together, the “Nyxol Products”) worldwide except for certain countries and jurisdictions in Asia (the “Viatris Territory”).
Under the terms of the Nyxol License Agreement, Ocuphire in partnership with Viatris, will develop the Nyxol Products in the United States. Viatris agreed to reimburse us for budgeted costs related to the development of the Nyxol Products through each applicable FDA approval. Viatris is responsible for developing the Nyxol Products in countries and jurisdictions in the Viatris Territory outside of the United States.
POS is a once-daily eye drop formulation of phentolamine mesylate designed to reduce pupil diameter and improve visual acuity. POS can potentially be used across multiple indications such as treatment of pharmacologically-induced mydriasis (“RM”) (dilation of the pupil), presbyopia (age-related blurry near vision) and DLD (halos, glares and starbursts). Our management believes these multiple indications potentially represent a significant market opportunity. POS has been studied in a total of 12 clinical trials (3 Phase 1, 5 Phase 2 and 4 Phase 3) in a total of over 1100 patients (with over 650 POS-treated) and has demonstrated promising clinical data across the three targeted refractive indications.
We submitted a new drug application (“NDA”) to the U.S. Food and Drug Administration (“FDA”) in November 2022 under the 505(b)(2) pathway for POS for RM; the FDA approved the NDA in September 2023 under the brand name RYZUMVI™, which triggered a $10 million milestone payment under the Nyxol License Agreement.
We reported positive top-line data from multiple late-stage clinical trials for POS in RM, presbyopia and DLD. We reported positive top-line data from Phase 3 trials in RM: MIRA-2 in March 2021, MIRA-3 in March 2022 and MIRA-4 in April 2022. We also reported positive top-line data from a Phase 2 trial of POS for treatment of presbyopia, both as monotherapy and with low-dose pilocarpine (pilocarpine hydrochloride ophthalmic solution 0.4%, “LDP”) as adjunctive therapy (VEGA-1). We reported top-line data from a Phase 3 trial in DLD in May 2022 (LYNX-1). The VEGA-2 Phase 3 study in presbyopia achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024. For DLD, a SPA has been submitted and Viatris is also expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
Recent Developments
Clinical Milestones
APX3330
In January 2023, we announced top-line efficacy and safety results from ZETA-1, a Phase 2b trial of APX3330 in diabetic retinopathy patients. In ZETA-1, APX3330 demonstrated favorable safety and tolerability and exhibited efficacy in slowing or prevention of DR worsening on a binocular DRSS Person Scale. The FDA agreed this was an approvable registration endpoint at our EOP2 meeting.
TABLE OF CONTENTS
Phentolamine Ophthalmic Solution 0.75% (POS)
In January 2023, we announced the initiation of the VEGA-2 Phase 3 pivotal trial, the first of two Phase 3 registration trials intended to support a presbyopia indication for POS alone and POS with LDP. The VEGA-2 Phase 3 study achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024.
Regulatory Update
In September 2023, we announced FDA approval of POS under the brand name RYZUMVI™ for the treatment of RM; for this approval we received a $10 million milestone payment under the Nyxol License Agreement.
In October 2023, a SPA was submitted to the FDA for DLD and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
In November 2023, we announced the successful outcome of the EOP2 meeting with the FDA, at which we obtained agreement on the registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a SPA to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials and will share specifics on the study design parameters and anticipated timing once agreed with the FDA.
Management Transitions
On November 1, 2023, the Company announced the appointment of George Magrath, M.D., M.B.A., M.S., as Chief Executive Officer and member of the Board of Directors. As a result of such appointment, Richard Rodgers, who was serving as Interim President and Chief Executive Officer, resigned from such position and remains on the Board.
On November 27, 2023, the Company announced the appointment of Joseph K. Schachle, as Chief Operating Officer.
Purchase Agreement with Lincoln Park Capital Fund, LLC (“Lincoln Park”)
On August 10, 2023, we entered into a common stock purchase agreement (the “Purchase Agreement”) with Lincoln Park, which provides that, upon the terms and subject to the conditions and limitations set forth therein, Ocuphire has the sole right, but not the obligation, to direct Lincoln Park to purchase up to $50 million of shares of our common stock, par value $0.0001 (the “Common Stock”), from time to time over the 30-month term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, Ocuphire also entered into a registration rights agreement with Lincoln Park (the “Registration Rights Agreement”), pursuant to which we agreed to register the resale of the shares of our Common Stock that have been and may be issued to Lincoln Park under the Purchase Agreement pursuant to a registration statement. Upon the execution of the Purchase Agreement, we issued 246,792 shares of Common Stock to Lincoln Park as consideration for its commitment to purchase shares of our Common Stock under the Purchase Agreement. Lincoln Park has agreed not to cause or engage in any manner whatsoever in any direct or indirect short selling or hedging of our Common Stock.
Global Economic Conditions
Generally, worldwide economic conditions remain uncertain, particularly due to the effects of the conflict between Russia and Ukraine and between Israel and Hamas, disruptions in the banking system and financial markets, lingering COVID-19 pandemic, increased inflation and increased interest rates. The general economic and capital market conditions, both in the U.S. and worldwide, have been volatile in the past and at times have adversely affected our access to capital and increased the cost of capital. The capital and credit markets may not be available to support future capital raising activity on favorable terms. If economic conditions decline, our future cost of equity or debt capital and access to the capital markets could be adversely affected.
Additionally, our operating results could be materially impacted by changes in the overall macroeconomic environment and other economic factors. Changes in economic conditions, supply chain constraints, logistics challenges, labor shortages, the conflicts in Ukraine and the Middle East, disruptions in the banking system and financial markets, and steps taken by governments and central banks, particularly in response to the COVID-19 pandemic as well as other stimulus and spending programs, have led to higher inflation, which has led to an increase in costs and has caused changes in fiscal and monetary policy, including increased interest rates.
TABLE OF CONTENTS
Risks Associated with our Business
Our business is subject to numerous risks, as described under the heading “Risk Factors” contained in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by reference into this prospectus.
Company Information
Our principal executive offices are located at 37000 Grand River Avenue, Suite 120, Farmington Hills, MI 48335. Our telephone number is (248) 957-9024. Our website address is www.ocuphire.com. The information contained in, or accessible through, our website does not constitute part of this prospectus, should not be relied on in determining whether to make an investment decision, and the inclusion of our website address in this prospectus is an inactive textual reference only.
TABLE OF CONTENTS
The Offering
Common stock offered by us pursuant to this prospectus
Shares of common stock having an aggregate offering price of up to $40,000,000.
Manner of offering
“At the market offering” that may be made from time to time through or to JonesTrading, as sales agent or principal. See “Plan of Distribution.”
Use of Proceeds
We intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes. See “Use of Proceeds”.
Nasdaq Capital Market listing
OCUP
Risk factors
Investing in our common stock involves a high degree of risk. Please read the information contained in and incorporated by reference under the heading “Risk Factors” and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus, together with the other information included in or incorporated by reference into this prospectus, before deciding whether to invest in our common stock.
TABLE OF CONTENTS
Investing in our common stock involves a high degree of risk. You should carefully consider the risks described below, and those discussed under the section entitled “Risk Factors” contained in our 2022 Annual Report on Form 10-K and our 2023 Quarterly Reports on Form 10-Q, which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future that are incorporated by reference in this prospectus, together with other information in this prospectus, the information and documents incorporated by reference herein, and in any free writing prospectus that we have authorized for use in connection with this offering. The occurrence of any of the events or developments described below could materially and adversely affect our business, financial condition, results of operations and prospects. In such an event, the market price of our common stock could decline and you may lose all or part of your investment.
Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds from this offering, and may not use the proceeds effectively.
Because we have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have broad discretion as to the application of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
It is not possible to predict the actual number of shares we will sell under the Sales Agreement, or the aggregate 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 instructions to JonesTrading to sell shares of our common stock at any time throughout the term of the Sales Agreement. The number of shares, if any, that are sold through JonesTrading after our instruction will fluctuate based on a number of factors, including the market price of our common stock during the sales period, the limits we set with JonesTrading in any instruction to sell shares, and the demand for our common stock during the sales period. Because the price per share of each share sold, if any, will fluctuate during this offering, 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 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, subject to the final determination by our board of directors, 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.
We do not intend to pay dividends in the foreseeable future.
We have never paid cash dividends on our common stock and currently do not plan to pay any cash dividends in the foreseeable future.
TABLE OF CONTENTS
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future results of operations and financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, forward-looking statements may be identified by words such as “anticipate,” “believe,” “continue,” “could,” “design,” “estimate,” “expect,” “intend,” “may,” “plan,” “potentially,” “predict,” “project,” “should,” “will” or the negative of these terms or other similar expressions.
We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. These forward-looking statements are subject to a number of known and unknown risks, uncertainties and assumptions, including risks described in the section titled “Risk Factors” and elsewhere in this prospectus and in our most recent Annual Report on Form 10-K and filed 2023 Quarterly Reports, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with a specific offering. These risks include, among other things, that:
• | we currently depend entirely on the success of Phentolamine Ophthalmic Solution 0.75% (POS) and APX3330, our only product candidates, and we may never complete clinical development of, receive marketing approval for, or successfully commercialize, POS alone or as adjunctive therapy with low dose pilocarpine (LDP), APX3330, or other product candidates we may pursue in the future for any indication; |
• | Viatris has exclusive rights to commercialize our POS products in key global markets and Viatris’ failure to timely develop or commercialize these products would have a material adverse effect on our business and operating results; |
• | the results of previous clinical trials may not be predictive of future results, and the results of our current and planned clinical trials may not satisfy the requirements of the FDA or non-U.S. regulatory authorities; |
• | changes in regulatory requirements or FDA guidance, or unanticipated events during our clinical trials, may result in changes to clinical trial protocols or additional clinical trial requirements, which could result in increased costs to us or delays in our development timelines; |
• | we expect to incur losses for the foreseeable future and may never achieve or maintain profitability; |
• | adverse global economic conditions could have a negative effect on our business results of operations and financial condition and liquidity; |
• | adverse developments affecting the financial services industry could negatively affect our current and projected business operations, financial condition and results of operations; |
• | raising additional capital may cause dilution to our stockholders, restrict our operations, or require us to relinquish rights to our technologies or product candidates; |
• | even if we receive marketing approval for our product candidates in the United States, we may never receive regulatory approval to market such product candidates outside of the United States; |
• | our employees or our representatives may engage in misconduct or other improper activities, including violating applicable regulatory standards and requirements or engaging in insider trading, which could significantly harm our business; |
TABLE OF CONTENTS
• | we face substantial competition, which may result in others discovering, developing, or commercializing products before or more successfully than we do; |
• | we lack experience in commercializing products, which may have an adverse effect on our business; |
• | if we are unable to establish sales and marketing capabilities or enter into agreements with third parties to sell, market, and distribute APX3330, if approved, we may not be successful in commercializing APX3330 if and when it is approved; |
• | product liability lawsuits against us, or our suppliers and manufacturers, could cause us to incur substantial liabilities and could limit commercialization of any product candidate that we may develop; |
• | we are unable to control all aspects of our clinical trials due to our reliance on clinical research organizations, contract development and manufacturing organizations and other third parties that assist us in conducting clinical trials; |
• | we are unable to control the supply, manufacture and testing of bulk drug substances and the formulation, testing and packaging of preclinical and clinical drug supplies of our product candidates, and will be unable to control these elements at the commercial stage, due to our reliance on third-party manufacturers and analytical facilities; |
• | if we are not able to establish new collaborations for APX3330 on commercially reasonable terms, we may have to alter our development, manufacturing, and commercialization plans; |
• | if we are unable to obtain and maintain sufficient patent protection for our product candidates, our competitors could develop and commercialize products or technology similar or identical to ours, which would adversely affect our ability to successfully commercialize any product candidates we may develop, our business, results of operations, financial condition and prospects; |
• | if we do not obtain protection under the Hatch-Waxman Act and similar foreign legislation by extending the patent terms and obtaining data exclusivity for our product candidate, our business may be materially harmed; |
• | we may not be able to protect or practice our intellectual property rights throughout the world; |
• | obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment, and other requirements imposed by governmental agencies, and our patent protection could be reduced or eliminated for noncompliance with these requirements; |
• | we depend on intellectual property sublicensed from Apexian Pharmaceuticals, Inc. (“Apexian”) for our APX3330 product candidate under development and our additional pipeline candidates, and the termination of, or reduction or loss of rights under, this sublicense would harm our business; |
• | we are dependent on our key personnel, and if we are not successful in attracting and retaining highly qualified personnel, we may not be able to successfully implement our business strategy; |
• | we will need to develop and expand our company and may encounter difficulties in managing this development and expansion, which could disrupt our operations; |
• | our insurance policies are expensive and protect only from some business risk, which leaves us exposed to significant uninsured liabilities; |
• | environmental, social, and governance matters and any related reporting obligations may impact our business; |
• | if we fail to comply with the continued listing standards of the Nasdaq Capital Market, our common stock could be delisted. If it is delisted, our common stock price and the liquidity of our common stock would be impacted; |
• | the market price of our common stock may fluctuate significantly; |
• | we may be subject to securities litigation, which is expensive and could divert management attention.; and |
• | there is uncertainty regarding the use of proceeds, if any, from this offering. |
TABLE OF CONTENTS
These risks are not exhaustive. Other sections of this prospectus may include additional factors that could harm our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment.
New risks and uncertainties emerge from time to time, and it is not possible for our management to predict all risks and uncertainties nor can we assess the impact of all such factors on our business or the extent to which any such factor, or combination of such factors, may cause actual results to differ from those contained in, or implied by, any forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Except as required by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus or to conform these statements to actual results or to changes in our expectations.
In addition, “we believe” and “we expect” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and achievements may be different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
TABLE OF CONTENTS
Except as described in any free writing prospectus that we have authorized for use in connection with this offering, we currently intend to use the net proceeds from this offering, if any, for working capital and general corporate purposes, including research and development expenses, manufacturing and regulatory expenses, and general and administrative expenses.
The amounts and timing of our use of the net proceeds from this offering will depend on a number of factors, such as the timing and progress of our clinical trials and research and development efforts, the timing and progress of any partnering efforts, any strategic transactions in which we may engage, and the competitive environment for our product candidates. As of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. Accordingly, our management will have broad discretion in the timing and application of these proceeds.
TABLE OF CONTENTS
To date, we have paid no cash dividends to our stockholders, and we do not intend to pay cash dividends in the foreseeable future.
TABLE OF CONTENTS
We have previously entered into a Capital on Demand™ Sales Agreement, or sales agreement, with JonesTrading, under which we may issue and sell shares of our common stock having an aggregate gross sales price of up to $40 million from time to time through or to JonesTrading acting as agent or principal. Sales of our common stock, if any, under this prospectus and the accompanying prospectus may be made in sales deemed to be “at the market offerings” as defined in Rule 415(a)(4) promulgated under the Securities Act. Prior to January 8, 2024, we have offered and sold shares of our common stock having an aggregate gross sales price of $22.7 million pursuant to the Sales Agreement. As a result of such prior sales, as of January 8, 2024, shares of our common stock having an aggregate gross sales price of up to $17.3 million remain available for offer and sale from time to time through JonesTrading pursuant to the Sales Agreement and this prospectus.
Each time we wish to issue and sell common stock, we will notify JonesTrading of the number of shares to be issued, the dates on which such sales are anticipated to be made, any minimum price below which sales may not be made and other sales parameters as we deem appropriate. Once we have so instructed JonesTrading, unless JonesTrading declines to accept the terms of the notice, JonesTrading has agreed, subject to the terms and conditions of the sales agreement, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. We may instruct JonesTrading not to sell shares of common stock if the sales cannot be effected at or above the price designated by us in any such instruction. We or JonesTrading may suspend the offering of shares of common stock being made through JonesTrading under the sales agreement upon proper notice to the other party.
We will pay JonesTrading commissions for its services in acting as agent in the sale of our common stock. JonesTrading will be entitled to compensation at a commission rate equal to up to 3.0% of the aggregate gross sales price of the shares sold. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. We have also agreed to reimburse JonesTrading for certain specified expenses, including the fees and disbursements of its legal counsel in an amount not to exceed $35,000, as provided in the sales agreement. Additionally, pursuant to the terms of the sales agreement, we agreed to reimburse JonesTrading for the documented fees and costs of its legal counsel reasonably incurred in connection with JonesTrading’s ongoing diligence arising from the transactions contemplated by the sales agreement in an amount not to exceed $10,000 in the aggregate per calendar year. We estimate that the total expenses for the offering, excluding compensation and reimbursements payable to JonesTrading under the terms of the sales agreement, will be approximately $65,000.
Settlement for sales of common stock will occur on the second business day following the date on which any sales are made, or on some other date that is agreed upon by us and JonesTrading 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 and the accompanying prospectus will be settled through the facilities of our transfer agent, Equiniti Trust Company or by such other means as we and JonesTrading may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
In connection with the sale of the common stock on our behalf, JonesTrading will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of JonesTrading will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to JonesTrading against certain civil liabilities, including liabilities under the Securities Act.
The offering of our common stock pursuant to the sales agreement will terminate upon the termination of such sales agreement as permitted therein.
JonesTrading and its affiliates may in the future provide various investment banking and other financial services for us and our affiliates for which services they may in the future receive customary fees.
This summary of the material provisions of the sales agreement does not purport to be a complete statement of its terms and conditions. We filed a copy of the sales agreement as an exhibit to the registration statement of which this prospectus and accompanying prospectus form a part.
TABLE OF CONTENTS
The validity of the securities offered by this prospectus will be passed upon for us by Honigman LLP.
Duane Morris LLP, New York, New York, is counsel for JonesTrading in connection with this offering.
The consolidated financial statements of Ocuphire Pharma, Inc. appearing in Ocuphire Pharma, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3 we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including Ocuphire. The address of the SEC website is www.sec.gov.
We maintain a website at www.ocuphire.com. Information contained in or accessible through our website does not constitute a part of this prospectus.
TABLE OF CONTENTS
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings (including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the termination of the offering of the shares covered by this prospectus (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K):
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed with the SEC on March 30, 2023, and the information specifically incorporated by reference into our Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 1, 2023; |
• | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023 filed with the SEC on May 15, 2023, August 11, 2023, and November 13, 2023; |
• | our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 25, 2023, April 21, 2023, June 2, 2023, June 9, 2023, June 14, 2023, August 11, 2023, September 27, 2023. November 1, 2023, November 2, 2023, November 27, 2023, and December 6, 2023; and |
• | the description of common stock set forth in the Registration Statement on Form 8-A, filed with the SEC on June 7, 2019, including any amendments thereto or reports filed for the purposes of updating this description, as updated by Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, including any amendments or reports filed for the purposes of updating this description. |
We will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents:
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
Attn: Dr. George Magrath, Chief Executive Officer
TABLE OF CONTENTS
Up to $40,000,000
Common Stock
PROSPECTUS
, 2024
TABLE OF CONTENTS
The information contained in this preliminary 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 preliminary prospectus is not an offer to sell these securities and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 10, 2024
PROSPECTUS
Up to $50,000,000 of Shares of Common Stock
and 246,792 Shares of Common Stock
This purchase agreement prospectus relates to the issuance and sale of up to $50,000,000 of shares of our common stock (“Purchase Shares”) that we may sell to Lincoln Park Capital Fund, LLC (“Lincoln Park”), from time to time pursuant to a purchase agreement, dated August 10, 2023 (the “Purchase Agreement”), that we have entered into with Lincoln Park, and an additional 246,792 shares of our common stock (the “Commitment Shares”) issued to Lincoln Park as commitment shares under the Purchase Agreement. Under the previously filed Form S-3 shelf registration statement (File No. 333-252715) (the “Prior S-3 Shelf”) and the prior prospectus supplement, dated August 11, 2023 (the “Prior Prospectus”), the Company registered the offer and sale of up to $50,000,000 of shares of our common stock and an additional 246,792 Commitment Shares under the Purchase Agreement. Since August 11, 2023, the Company issued the 246,792 Commitment Shares and sold 1.3 million shares to Lincoln Park under the Purchase Agreement. Because the Prior S-3 Shelf expires on February 12, 2024, the Company has filed this Shelf Registration Statement on Form S-3 (the “New Form S-3 Shelf”), which includes this prospectus as a part thereof (the final form of which to be filed with the SEC under Rule 424(b), the “Prospectus”), which Prospectus supersedes and replaces the Prior Prospectus, registering the offer and sale of up to $50,000,000 shares of our common stock and the Commitment Shares under the Purchase Agreement.
This prospectus also covers the resale of these shares by Lincoln Park to the public. See “Lincoln Park Transaction” for a description of the Purchase Agreement and additional information regarding Lincoln Park. Lincoln Park is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”).
The purchase price for the Purchase Shares will be based upon formulas set forth in the Purchase Agreement depending on the type of purchase notice we submit to Lincoln Park from time to time. We will pay the expenses incurred in registering the shares of our common stock, including legal and accounting fees. See “Plan of Distribution” for more information.
Our common stock is listed on the Nasdaq Capital Market under the symbol “OCUP.” On January 9, 2024, the last reported sale price of our common stock on the Nasdaq Capital Market was $3.25 per share.
We are a “smaller reporting company” as defined under the federal securities laws and, as such, have elected to comply with certain 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 “Prospectus Summary-Implications of Being a Smaller Reporting Company.”
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus on page S-
7, on page
7 of the base prospectus, in our most recent
Annual Report on Form 10-K incorporated by reference into this prospectus, and under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
TABLE OF CONTENTS
Prospectus
This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with the information incorporated by reference as described under the headings “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference” in this prospectus. These documents contain important information that you should consider when making your investment decision.
This prospectus describes the terms of this offering of our common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the SEC before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date (for example, a document incorporated by reference into this prospectus) the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in or incorporated by reference in this prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering. We have not, and Lincoln Park has not, authorized anyone 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 Lincoln Park is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, the documents incorporated by reference in this prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference in this prospectus, and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an investment decision.
“Ocuphire Pharma, Inc.” the “Ocuphire” logo and other trademarks, trade names or service marks of Ocuphire Pharma, Inc. appearing in this prospectus are the property of Ocuphire Pharma, Inc. All other trademarks, trade names and service marks appearing in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus may be referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert their rights thereto.
TABLE OF CONTENTS
This summary highlights information contained elsewhere in this prospectus. This summary is not complete and does not contain all of the information you should consider in making your investment decision. You should carefully read the entire prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” 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 are a part. Unless the context otherwise requires, the terms “Ocuphire” “the Company,” “we,” “us,” “our” and similar references in this prospectus refer to Ocuphire Pharma, Inc.
Overview
We are a clinical-stage ophthalmic biopharmaceutical company focused on developing novel therapies for the treatment of unmet needs of patients with retinal and refractive eye disorders.
APX3330
Our lead retinal product candidate, APX3330, is a first-in-class small-molecule inhibitor of Ref-1 (reduction oxidation effector factor-1 protein). Ref-1 is a regulator of transcription factors such as HIF-1α and NF-kB. Inhibiting REF-1 reduces levels of vascular endothelial growth factor (“VEGF”) and inflammatory cytokines which are known to play key roles in ocular angiogenesis and inflammation. Through inhibition of Ref-1, APX3330 normalizes the levels of VEGF to physiologic levels, unlike biologics that deplete VEGF below the levels required for normal function. APX3330 is an oral tablet administered twice per day for the treatment of diabetic retinopathy (“DR”).
DR affects approximately 10 million people with diabetes and is projected to impact over 14 million Americans by 2050. DR is classified as Non-Proliferative Diabetic Retinopathy (“NPDR”), the early stage of the disease in which symptoms may be mild or nonexistent or Proliferative Diabetic Retinopathy (“PDR”) which is the more advanced stage of diabetic eye disease that can be highly symptomatic with loss of vision. Approximately 80% of the DR patients have NPDR that will progress to PDR if left untreated. Despite the risk for visual loss associated with this disease, over 90% of NPDR patients currently receive no course of treatment apart from observation by their eye care specialist until they develop sight-threatening complications. This is due to the treatment burden of the frequent eye injections required with currently approved therapies for this disease. APX3330 as an oral tablet has the potential to be an early, non-invasive treatment for the 8 million NPDR patients in the US.
In January 2023, we reported top-line efficacy and safety results from the ZETA-1 Phase 2 trial conducted in 103 subjects (51 treated with 600 mg daily dose of APX3330) in DR, including moderately severe and severe NPDR and mild PDR, as well as patients with diabetic macular edema without loss of central vision. Although administration of APX3330 daily did not meet the study’s primary endpoint of percentage of patients with a ≥ 2-step improvement in Early Treatment of Diabetic Retinopathy Study (“ETDRS”) diabetic retinopathy severity scale (“DRSS”) in the study eye at week 24 compared to placebo, efficacy was seen on the FDA agreed upon registration endpoint of ≥3-step worsening on a binocular DRSS Person Scale. Prevention or slowing of progression of DR to vision-threatening complication such as PDR is a clinically meaningful endpoint. APX3330 also demonstrated favorable safety and tolerability in diabetic patients. A successful End-of-Phase 2 (“EOP2”) meeting with the U.S. Food and Drug Administration (the “FDA”) was held in October 2023 at which we obtained agreement on the Phase 3 registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a Special Protocol Assessment (“SPA”) to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials.
Prior to Ocuphire in-licensing the APX3330 product candidate, it had been studied by other sponsors in a total of 11 clinical trials (6 Phase 1 and 5 Phase 2) in a total of over 420 healthy volunteers or patients (with over 340 APX3330-treated) for inflammatory (hepatic) and oncology indications, and had demonstrated evidence of target engagement, consistent pharmacokinetics, durability, and favorable safety and tolerability. Treatment-related adverse events were uncommon, and most were mild in severity. No clinically significant changes were observed in liver, kidney, or heart function. There were no treatment-related effects on hematologic or blood chemistry evaluations. APX3330 demonstrated favorable safety and tolerability in the ZETA-1 trial, consistent with the safety data from the prior 11 clinical trials.
TABLE OF CONTENTS
We also in-licensed APX2009 and APX2014, which are second-generation analogs of APX3330. The unique mechanism of action of these Ref-1 inhibitors of reducing angiogenesis and inflammation could potentially be beneficial in treating other retinal diseases such as age-related macular degeneration (“AMD”), and geographic atrophy (“GA”).
We are currently evaluating local delivery routes of APX3330 and its second-generation analogs in addition to the systemic (oral) route as part of its pipeline expansion in retinal therapies.
Phentolamine Ophthalmic Solution 0.75% (POS)
In November 2022, we entered into a license and collaboration agreement (the “Nyxol License Agreement”) with FamyGen Life Sciences, Inc. (acquired by Viatris, Inc. (“Viatris”) in January 2023) pursuant to which we granted Viatris an exclusive license to develop, manufacture, import, export and commercialize our refractive product candidate Phentolamine Ophthalmic Solution 0.75%, formerly known as Nyxol (“POS”) for treating (a) reversal of pharmacologically-induced mydriasis, (b) night vision disturbances or dim light vision (“DLD”), and (c) presbyopia, and (ii) POS and low dose pilocarpine for treating presbyopia (together, the “Nyxol Products”) worldwide except for certain countries and jurisdictions in Asia (the “Viatris Territory”).
Under the terms of the Nyxol License Agreement, Ocuphire in partnership with Viatris, will develop the Nyxol Products in the United States. Viatris agreed to reimburse us for budgeted costs related to the development of the Nyxol Products through each applicable FDA approval. Viatris is responsible for developing the Nyxol Products in countries and jurisdictions in the Viatris Territory outside of the United States.
POS is a once-daily eye drop formulation of phentolamine mesylate designed to reduce pupil diameter and improve visual acuity. POS can potentially be used across multiple indications such as treatment of pharmacologically-induced mydriasis (“RM”) (dilation of the pupil), presbyopia (age-related blurry near vision) and DLD (halos, glares and starbursts). Our management believes these multiple indications potentially represent a significant market opportunity. POS has been studied in a total of 12 clinical trials (3 Phase 1, 5 Phase 2 and 4 Phase 3) in a total of over 1100 patients (with over 650 POS-treated) and has demonstrated promising clinical data across the three targeted refractive indications.
We submitted a new drug application (“NDA”) to the U.S. Food and Drug Administration (“FDA”) in November 2022 under the 505(b)(2) pathway for POS for RM; the FDA approved the NDA in September 2023 under the brand name RYZUMVI™, which triggered a $10 million milestone payment under the Nyxol License Agreement.
We reported positive top-line data from multiple late-stage clinical trials for POS in RM, presbyopia and DLD. We reported positive top-line data from Phase 3 trials in RM: MIRA-2 in March 2021, MIRA-3 in March 2022 and MIRA-4 in April 2022. We also reported positive top-line data from a Phase 2 trial of POS for treatment of presbyopia, both as monotherapy and with low-dose pilocarpine (pilocarpine hydrochloride ophthalmic solution 0.4%, “LDP”) as adjunctive therapy (VEGA-1). We reported top-line data from a Phase 3 trial in DLD in May 2022 (LYNX-1). The VEGA-2 Phase 3 study in presbyopia achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024. For DLD, a SPA has been submitted and Viatris is also expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
Recent Developments
Clinical Milestones
APX3330
In January 2023, we announced top-line efficacy and safety results from ZETA-1, a Phase 2b trial of APX3330 in diabetic retinopathy patients. In ZETA-1, APX3330 demonstrated favorable safety and tolerability and exhibited efficacy in slowing or prevention of DR worsening on a binocular DRSS Person Scale. The FDA agreed this was an approvable registration endpoint at our EOP2 meeting.
TABLE OF CONTENTS
Phentolamine Ophthalmic Solution 0.75% (POS)
In January 2023, we announced the initiation of the VEGA-2 Phase 3 pivotal trial, the first of two Phase 3 registration trials intended to support a presbyopia indication for POS alone and POS with LDP. The VEGA-2 Phase 3 study achieved its primary endpoint and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024.
Regulatory Update
In September 2023, we announced FDA approval of POS under the brand name RYZUMVI™ for the treatment of RM; for this approval we received a $10 million milestone payment under the Nyxol License Agreement.
In October 2023, a SPA was submitted to the FDA for DLD and Viatris, our development and commercial partner, is expected to continue Phase 3 development in the first half of 2024 following FDA agreement.
In November 2023, we announced the successful outcome of the EOP2 meeting with the FDA, at which we obtained agreement on the registration endpoint supporting the advancement of APX3330 into Phase 3. Ocuphire plans to submit a SPA to agree on the clinical trial protocol and statistical analysis plan for the Phase 3 trials and will share specifics on the study design parameters and anticipated timing once agreed with the FDA.
Management Transitions
On November 1, 2023, the Company announced the appointment of George Magrath, M.D., M.B.A., M.S., as Chief Executive Officer and member of the Board of Directors. As a result of such appointment, Richard Rodgers, who was serving as Interim President and Chief Executive Officer, resigned from such position and remains on the Board.
On November 27, 2023, the Company announced the appointment of Joseph K. Schachle, as Chief Operating Officer.
Purchase Agreement with Lincoln Park Capital Fund, LLC (“Lincoln Park”)
On August 10, 2023, we entered into a common stock purchase agreement (the “Purchase Agreement”) with Lincoln Park, which provides that, upon the terms and subject to the conditions and limitations set forth therein, Ocuphire has the sole right, but not the obligation, to direct Lincoln Park to purchase up to $50 million of shares of our common stock, par value $0.0001 (the “Common Stock”), from time to time over the 30-month term of the Purchase Agreement. Concurrently with entering into the Purchase Agreement, Ocuphire also entered into a registration rights agreement with Lincoln Park (the “Registration Rights Agreement”), pursuant to which we agreed to register the resale of the shares of our Common Stock that have been and may be issued to Lincoln Park under the Purchase Agreement pursuant to a registration statement. Upon the execution of the Purchase Agreement, we issued 246,792 shares of Common Stock to Lincoln Park as consideration for its commitment to purchase shares of our Common Stock under the Purchase Agreement. Lincoln Park has agreed not to cause or engage in any manner whatsoever in any direct or indirect short selling or hedging of our Common Stock.
Global Economic Conditions
Generally, worldwide economic conditions remain uncertain, particularly due to the effects of the conflict between Russia and Ukraine and between Israel and Hamas, disruptions in the banking system and financial markets, lingering COVID-19 pandemic, increased inflation and increased interest rates. The general economic and capital market conditions, both in the U.S. and worldwide, have been volatile in the past and at times have adversely affected our access to capital and increased the cost of capital. The capital and credit markets may not be available to support future capital raising activity on favorable terms. If economic conditions decline, our future cost of equity or debt capital and access to the capital markets could be adversely affected.
Additionally, our operating results could be materially impacted by changes in the overall macroeconomic environment and other economic factors. Changes in economic conditions, supply chain constraints, logistics challenges, labor shortages, the conflicts in Ukraine and the Middle East, disruptions in the banking system and financial markets, and steps taken by governments and central banks, particularly in response to the COVID-19 pandemic as well as other stimulus and spending programs, have led to higher inflation, which has led to an increase in costs and has caused changes in fiscal and monetary policy, including increased interest rates.
TABLE OF CONTENTS
Corporate Information
Our principal executive offices are located at 37000 Grand River Avenue, Suite 120, Farmington Hills, MI 48335. Our telephone number is (248) 957-9024. Our website address is www.ocuphire.com. The information contained in, or accessible through, our website does not constitute part of this prospectus, and should not be relied on in determining whether to make an investment decision. The inclusion of our website address in this prospectus is an inactive textual reference only.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” under federal securities laws. For as long as we continue to be a smaller reporting company, we may take advantage of exemptions from various reporting requirements that are applicable to other public companies, including, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements. We may continue to be a smaller reporting company if either (i) the market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our stock held by non-affiliates is less than $700 million. As long as we remain a smaller reporting company and non-accelerated filer, we are exempt from the attestation requirement in the assessment of our internal control over financial reporting by our independent auditors pursuant to section 404(b) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) but are required to make our own internal assessment of the effectiveness of our internal controls over financial reporting.
TABLE OF CONTENTS
The Offering
Common stock offered by us pursuant to this prospectus
246,792 shares of our common stock issued to Lincoln Park as consideration for its commitment to purchase shares of our common stock under the Purchase Agreement (the “Commitment Shares”). We will not receive any cash proceeds from the issuance of these Commitment Shares.
Up to $50,000,000 of shares of our common stock we may issue and sell to Lincoln Park from time to time over 30 months, commencing on August 11, 2023, at our sole discretion, in accordance with the Purchase Agreement.
Common stock to be outstanding immediately after this offering
38,060,477 shares, based on 24,058,725 shares outstanding as of January 9, 2024, assuming sale of 14,001,752 shares at a price of $3.25 per share, which was the closing price of our common stock on The Nasdaq Capital Market on January 9, 2024. The actual number of shares issued will vary depending on the sales prices under this offering, but will not be greater than 4,195,058 shares, representing 19.99% of the shares of our common stock outstanding on the date of the Purchase Agreement (the “Exchange Cap”), unless, in accordance with the rules of The Nasdaq Stock Market LLC, unless we obtain stockholder approval of the issuance of shares of our common stock under the Purchase Agreement in excess of the Exchange Cap, or the average price of all applicable sales of our common stock to Lincoln Park under the Purchase Agreement is equal to or greater than the $4.399 (which represents the lower of (A) the official closing price of the Company’s Common Stock on Nasdaq on the date of the Purchase Agreement and (B) the average official closing price of the Company’s Common Stock on Nasdaq for the five consecutive trading days ending on the date of the Purchase Agreement, as adjusted to take into account the issuance of the Commitment Shares to Lincoln Park for non-cash consideration), such that the Exchange Cap will not apply under applicable Nasdaq listing rules to limit issuances and sales of Common Stock to Lincoln Park pursuant to the Purchase Agreement. The Purchase Agreement also provides that Lincoln Park will not purchase or acquire any shares of common stock under the Purchase Agreement which, when aggregated with all other shares of common stock beneficially owned by Lincoln Park to beneficially own more than 4.99% of our outstanding shares of common stock (the “Beneficial Ownership Cap”), which Lincoln Park may, in its sole discretion, increase to up to 9.99% of our outstanding shares of common stock by delivering written notice thereof to us, which shall not be effective until the 61st day after such written notice is delivered to us.
TABLE OF CONTENTS
Use of Proceeds
We may receive up to $50,000,000 in aggregate gross proceeds under the Purchase Agreement from any sales we make to Lincoln Park pursuant to the Purchase Agreement. We intend to use the net proceeds from this offering, if any, for clinical development of our product candidates and for working capital and general corporate purposes. We do not currently have specific plans or commitments with respect to the net proceeds from this offering and, accordingly, we are unable to quantify the allocations of such proceeds among various potential uses. See “Use of Proceeds” on page S-
13 of this prospectus.
Risk factors
You should read the section entitled “Risk Factors” beginning on page S-
7 and the documents incorporated by reference in this prospectus for a discussion of factors to consider carefully before deciding to invest in our common stock.
Nasdaq Capital Market listing
“OCUP”
The number of shares of our common stock to be outstanding after this offering is based on 22,610,131 shares of common stock outstanding as of September 30, 2023, adjusted to include the issuance of 246,792 Commitment Shares issued to Lincoln Park and excludes:
• | 3,469,389 shares of common stock issuable upon the exercise of outstanding stock options with a weighted-average exercise price of $3.01 per share; |
• | 5,665,838 shares of common stock issuable upon the exercise of outstanding warrants with an exercise price of $4.48 per share; |
• | 1,538,461 shares of common stock issuable upon the exercise of outstanding warrants with an exercise price of $6.09 per share; |
• | 58,597 shares of common stock issuable upon the exercise of outstanding warrants with an exercise price of $38.40 per share; |
• | 282,008 unvested restricted stock units; and |
• | 1,016,033 shares available for future issuance under the Ocuphire 2020 Equity Incentive Plan and the Ocuphire 2021 Inducement Plan. |
TABLE OF CONTENTS
Investing in our common stock involves a high degree of risk. You should carefully consider the risks described below, and those discussed under the section entitled “Risk Factors” contained in our 2022 Annual Report on Form 10-K and our 2023 Quarterly Reports on Form 10-Q, together with other information in this prospectus, the information and documents incorporated by reference herein, and in any free writing prospectus that we have authorized for use in connection with this offering. The occurrence of any of the events or developments described below could materially and adversely affect our business, financial condition, results of operations and prospects. In such an event, the market price of our common stock could decline and you may lose all or part of your investment.
Risks Related to this Offering
The sale or issuance of our common stock to Lincoln Park may cause dilution and the sale of the shares of common stock acquired by Lincoln Park, or the perception that such sales may occur, could cause the price of our common stock to fall.
On August 10, 2023, we entered into the Purchase Agreement with Lincoln Park, pursuant to which Lincoln Park has committed to purchase up to $50,000,000 of our common stock. Upon the execution of the Purchase Agreement, we issued 246,792 Commitment Shares to Lincoln Park, which represents the fee for its commitment to purchase shares of our common stock under the Purchase Agreement. We have also paid Lincoln Park $40,000 as full and complete reimbursement of its expenses in connection with the offering. The remaining shares of our common stock that may be issued under the Purchase Agreement may be sold by us to Lincoln Park at our discretion from time to time over a 30-month period commencing after the satisfaction of certain conditions set forth in the Purchase Agreement, including that the registration statement, of which this prospectus is effective. The purchase price for the shares that we may sell to Lincoln Park under the Purchase Agreement will fluctuate based on the price of our common stock. Depending on market liquidity at the time, sales of such shares may cause the trading price of our common stock to fall.
We generally have the right to control the timing and amount of any future sales of our shares to Lincoln Park. Additional sales of our common stock, if any, to Lincoln Park will depend upon market conditions and other factors to be determined by us. We may ultimately decide to sell to Lincoln Park all, some or none of the additional shares of our common stock that may be available for us to sell pursuant to the Purchase Agreement. If and when we do sell shares to Lincoln Park, after Lincoln Park has acquired the shares, Lincoln Park may resell all, some or none of those shares at any time or from time to time in its discretion. Therefore, sales to Lincoln Park by us could result in substantial dilution to the interests of other holders of our common stock.
Additionally, the sale of a substantial number of shares of our common stock to Lincoln Park, or the anticipation of such sales, could make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect sales.
A substantial number of shares of common stock may be sold in the market as a result of this offering, which may depress the market price for our common stock.
Sales of a substantial number of shares of our common stock in the public market as a result of this offering could cause the market price of our common stock to decline. A substantial majority of the outstanding shares of our common stock are, and the shares of common stock offered hereby are, freely tradable without restriction or further registration under the Securities Act, unless these shares are owned or purchased by “affiliates” as that term is defined in Rule 144 under the Securities Act.
We have broad discretion to determine how to use the funds raised in this offering, if any, and may use them in ways that may not enhance our operating results or the price of our common stock.
Our management will have broad discretion over the use of net proceeds from this offering, if any, and we could spend the net proceeds from this offering in ways our stockholders may not agree with or that do not yield a favorable return, if at all. We currently expect to use the net proceeds from this offering, if any, for clinical development of our product candidates and for working capital and general corporate purposes, including costs and expenses associated with being a public company. However, our use of these net proceeds may differ substantially from our current plans.
TABLE OF CONTENTS
If we do not invest or apply the net proceeds of this offering in ways that improve our operating results, we may fail to achieve expected financial results, which could cause our stock price to decline. Pending use, we may invest any net proceeds from this offering in a manner that does not produce income or loses value. See “Use of Proceeds” beginning on page S-
10 of this prospectus.
We may not be able to access sufficient funds under the Purchase Agreement when needed.
Our ability to sell shares to Lincoln Park and obtain funds under the Purchase Agreement is limited by the terms and conditions in the Purchase Agreement, including restrictions on the amounts we may sell to Lincoln Park at any one time, and a limitation on our ability to sell shares to Lincoln Park to the extent that it would cause Lincoln Park to beneficially own more than 4,195,058 shares in total under the Purchase Agreement, which is equal to 19.99% of the shares of common stock outstanding on the date of the Purchase Agreement, unless we obtain stockholder approval or the average price of such sales is equal to or greater than the minimum price of $4.399 as determined under Nasdaq rules. In addition, the Purchase Agreement also provides that Lincoln Park will not purchase or acquire any shares of common stock under the Purchase Agreement which, when aggregated with all other shares of common stock beneficially owned by Lincoln Park and its affiliates would result in the beneficial ownership of Lincoln Park and its affiliates of more than 4.99% of our outstanding shares of common stock (the “Beneficial Ownership Cap”), which Lincoln Park may, in its sole discretion, increase to up to 9.99% of our outstanding shares of common stock by delivering written notice thereof to us, which shall not be effective until the 61st day after such written notice is delivered to us. In addition, any amounts we sell under the Purchase Agreement may not satisfy all of our funding needs, even if we are able and choose to sell and issue all of our common stock currently registered.
We may require additional financing to sustain our operations, without which we may not be able to continue operations, and the terms of subsequent financings may adversely impact our stockholders.
We may direct Lincoln Park to purchase up to $50,000,000 worth of shares of our common stock under our agreement over a 30-month period, in amounts up to 50,000 to 70,000 shares of our common stock depending on market prices, subject to a maximum limit of $1,000,000 per regular purchase, on any single business day.
Our ability to sell shares to Lincoln Park and obtain funds under the Purchase Agreement is limited by the terms and conditions in the Purchase Agreement, including restrictions on the amounts we may sell to Lincoln Park at any one time, and a limitation on our ability to sell shares to Lincoln Park to the extent that it would cause Lincoln Park to beneficially own more than 4.99% of our outstanding shares of common stock (the “Beneficial Ownership Cap”), which Lincoln Park may, in its sole discretion, increase to up to 9.99% of our outstanding shares of common stock by delivering written notice thereof to us, which shall not be effective until the 61st day after such written notice is delivered to us. Additionally, we are prohibited under applicable Nasdaq listing rules from issuing to Lincoln Park more than 4,195,058 shares of common stock under the Purchase Agreement (including Purchase Shares and Commitment Shares), such maximum number of shares representing 19.99% of the outstanding shares of our common stock immediately prior to the execution of the Purchase Agreement (such maximum share issuance limitation subject to certain reductions and pro rata adjustments as set forth in the Purchase Agreement, the “Exchange Cap”), unless (i) we first obtain stockholder approval in accordance with applicable Nasdaq listing rules to issue shares in excess of the Exchange Cap to Lincoln Park under the Purchase Agreement or (ii) the average price paid by Lincoln Park for all shares of common stock issued by us under the Purchase Agreement is equal to or greater than $4.399, such that the Exchange Cap will not apply under applicable Nasdaq listing rules to limit issuances and sales of our common stock to Lincoln Park pursuant to the Purchase Agreement. Therefore, we may not in the future have access to the full amount available to us under the Purchase Agreement, depending on the price of our common stock. In addition, any amounts we sell under the Purchase Agreement may not satisfy all of our funding needs, even if we are able and choose to sell and issue all of our common stock currently registered.
The extent to which we rely on Lincoln Park as a source of funding will depend on a number of factors including the prevailing market price of our common stock and the extent to which we are able to secure working capital from other sources. If obtaining sufficient funding from Lincoln Park were to prove unavailable or prohibitively dilutive, we may need to secure another source of funding in order to satisfy our future plan and working capital needs. Even if we sell all $50,000,000 of common stock under the Purchase Agreement to Lincoln Park, we may still need additional capital to finance our future plans and working capital needs, and we may have to raise funds through the issuance of equity or debt securities. Depending on the type and the terms
TABLE OF CONTENTS
of any financing we pursue, stockholders’ rights and the value of their investment in our common stock could be reduced. A financing could involve one or more types of securities including common stock, convertible debt or warrants to acquire common stock. These securities could be issued at or below the then prevailing market price for our common stock. If the issuance of new securities results in diminished rights to holders of our common stock, the market price of our common stock could be negatively impacted. Should the financing we require to sustain our future plan and our working capital needs be unavailable or prohibitively expensive when we require it, the consequences could have a material adverse effect on our business, operating results, financial condition and prospects.
Our stock price and the trading volume of our stock may be volatile and you may not be able to resell shares of our common stock at or above the price you paid.
The trading price of our common stock could be highly volatile and could be subject to wide fluctuations in response to various factors, some of which are beyond our control. In particular, the trading prices for biopharmaceutical companies have been highly volatile as a result of supply chain disruptions and the ongoing COVID-19 pandemic. These factors include those described in this “Risk Factors” section and elsewhere in this prospectus or the documents incorporated by reference herein, others such as:
• | the announcement of new products or product enhancements by us or our competitors; |
• | changes in our relationships with our licensors, licensees, or other strategic partners; |
• | developments concerning intellectual property rights and regulatory approvals; |
• | variations in our and our competitors’ results of operations; |
• | the announcement of clinical trial results; |
• | the announcement of potentially dilutive financings; |
• | changes in earnings estimates or recommendations by securities analysts; |
• | changes in the structure of healthcare payment systems; and |
• | developments and market conditions in the pharmaceutical and biotechnology industries, including due to the COVID-19 pandemic. |
In addition, the stock markets in general, and the markets for biopharmaceutical stocks in particular, have experienced extreme volatility that may have been unrelated to the operating performance of the issuer. These broad market fluctuations may adversely affect the trading price or liquidity of our common stock.
TABLE OF CONTENTS
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future results of operations and financial condition, business strategy and plans and objectives of management for future operations, are forward-looking statements. In some cases, forward-looking statements may be identified by words such as “anticipate,” “believe,” “continue,” “could,” “design,” “estimate,” “expect,” “intend,” “may,” “plan,” “potentially,” “predict,” “project,” “should,” “will” or the negative of these terms or other similar expressions.
We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. These forward-looking statements are subject to a number of known and unknown risks, uncertainties and assumptions, including risks described in the section titled “Risk Factors” and elsewhere in this prospectus and in our most recent Annual Report on Form 10-K and filed 2023 Quarterly Reports, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus, the documents incorporated by reference and any free writing prospectus that we may authorize for use in connection with a specific offering. These risks include, among other things, that:
• | we currently depend entirely on the success of Phentolamine Ophthalmic Solution 0.75% (POS) and APX3330, our only product candidates, and we may never complete clinical development of, receive marketing approval for, or successfully commercialize, POS alone or as adjunctive therapy with low dose pilocarpine (LDP), APX3330, or other product candidates we may pursue in the future for any indication; |
• | Viatris has exclusive rights to commercialize our POS products in key global markets and Viatris’ failure to timely develop or commercialize these products would have a material adverse effect on our business and operating results; |
• | the results of previous clinical trials may not be predictive of future results, and the results of our current and planned clinical trials may not satisfy the requirements of the FDA or non-U.S. regulatory authorities; |
• | changes in regulatory requirements or FDA guidance, or unanticipated events during our clinical trials, may result in changes to clinical trial protocols or additional clinical trial requirements, which could result in increased costs to us or delays in our development timelines; |
• | we expect to incur losses for the foreseeable future and may never achieve or maintain profitability; |
• | adverse global economic conditions could have a negative effect on our business results of operations and financial condition and liquidity; |
• | adverse developments affecting the financial services industry could negatively affect our current and projected business operations, financial condition and results of operations; |
• | raising additional capital may cause dilution to our stockholders, restrict our operations, or require us to relinquish rights to our technologies or product candidates; |
• | even if we receive marketing approval for our product candidates in the United States, we may never receive regulatory approval to market such product candidates outside of the United States; |
• | our employees or our representatives may engage in misconduct or other improper activities, including violating applicable regulatory standards and requirements or engaging in insider trading, which could significantly harm our business; |
TABLE OF CONTENTS
• | we face substantial competition, which may result in others discovering, developing, or commercializing products before or more successfully than we do; |
• | we lack experience in commercializing products, which may have an adverse effect on our business; |
• | if we are unable to establish sales and marketing capabilities or enter into agreements with third parties to sell, market, and distribute APX3330, if approved, we may not be successful in commercializing APX3330 if and when it is approved; |
• | product liability lawsuits against us, or our suppliers and manufacturers, could cause us to incur substantial liabilities and could limit commercialization of any product candidate that we may develop; |
• | we are unable to control all aspects of our clinical trials due to our reliance on clinical research organizations, contract development and manufacturing organizations and other third parties that assist us in conducting clinical trials; |
• | we are unable to control the supply, manufacture and testing of bulk drug substances and the formulation, testing and packaging of preclinical and clinical drug supplies of our product candidates, and will be unable to control these elements at the commercial stage, due to our reliance on third-party manufacturers and analytical facilities; |
• | if we are not able to establish new collaborations for APX3330 on commercially reasonable terms, we may have to alter our development, manufacturing, and commercialization plans; |
• | if we are unable to obtain and maintain sufficient patent protection for our product candidates, our competitors could develop and commercialize products or technology similar or identical to ours, which would adversely affect our ability to successfully commercialize any product candidates we may develop, our business, results of operations, financial condition and prospects; |
• | if we do not obtain protection under the Hatch-Waxman Act and similar foreign legislation by extending the patent terms and obtaining data exclusivity for our product candidate, our business may be materially harmed; |
• | we may not be able to protect or practice our intellectual property rights throughout the world; |
• | obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment, and other requirements imposed by governmental agencies, and our patent protection could be reduced or eliminated for noncompliance with these requirements; |
• | we depend on intellectual property sublicensed from Apexian Pharmaceuticals, Inc. (“Apexian”) for our APX3330 product candidate under development and our additional pipeline candidates, and the termination of, or reduction or loss of rights under, this sublicense would harm our business; |
• | we are dependent on our key personnel, and if we are not successful in attracting and retaining highly qualified personnel, we may not be able to successfully implement our business strategy; |
• | we will need to develop and expand our company and may encounter difficulties in managing this development and expansion, which could disrupt our operations; |
• | our insurance policies are expensive and protect only from some business risk, which leaves us exposed to significant uninsured liabilities; |
• | environmental, social, and governance matters and any related reporting obligations may impact our business; |
• | if we fail to comply with the continued listing standards of the Nasdaq Capital Market, our common stock could be delisted. If it is delisted, our common stock price and the liquidity of our common stock would be impacted; |
• | the market price of our common stock may fluctuate significantly; |
• | we may be subject to securities litigation, which is expensive and could divert management attention; and |
• | there is uncertainty regarding the use of proceeds, if any, from this offering. |
TABLE OF CONTENTS
These risks are not exhaustive. Other sections of this prospectus may include additional factors that could harm our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment.
New risks and uncertainties emerge from time to time, and it is not possible for our management to predict all risks and uncertainties nor can we assess the impact of all such factors on our business or the extent to which any such factor, or combination of such factors, may cause actual results to differ from those contained in, or implied by, any forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Except as required by law, we undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus or to conform these statements to actual results or to changes in our expectations.
In addition, “we believe” and “we expect” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and achievements may be different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
TABLE OF CONTENTS
We will receive no proceeds from the sale of shares of common stock by Lincoln Park in this offering. We may receive up to $50,000,000 in aggregate gross proceeds under the Purchase Agreement from any sales we make to Lincoln Park pursuant to the Purchase Agreement after the date of this prospectus over a 30-month period, assuming that we sell the full amount of our common stock that we have the right, but not the obligation, to sell to Lincoln Park under the Purchase Agreement. The aggregate gross proceeds do not include offering expenses of approximately $140,000 and a cash fee of $40,000 to Lincoln Park as Lincoln Park's full and complete expense reimbursement in connection with entering into the transaction, including any legal fees. Because we are not obligated to sell any shares of our common stock under the Purchase Agreement, other than the Commitment Shares (from which we will receive no proceeds), the actual total offering amount and proceeds to us, if any, are not determinable at this time. There can be no assurance that we will receive any proceeds under or fully utilize the Purchase Agreement. See “Plan of Distribution” elsewhere in this prospectus for more information.
We intend to use the net proceeds from the sale of common stock offered by us hereunder, if any, for clinical development of our product candidates and for working capital and other general corporate purposes.
Our expected use of the net proceeds from the sale of common stock offered by us hereunder, if any, represents our intentions based upon our current plans and business conditions. As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received upon the completion of this offering or the amounts that we will actually spend on the uses set forth above. The amounts and timing of our actual expenditures and the extent of our preclinical, clinical and future development activities may vary significantly depending on numerous factors, including the progress of our development efforts, the status of and results from our ongoing and planned clinical trials, our ability to take advantage of expedited programs or to obtain regulatory approval for product candidates, the timing and costs associated with the manufacture and supply of product candidates for clinical development and any unforeseen cash needs. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering.
Pending the use of the net proceeds from the sale of common stock offered by us hereunder, if any, as described above, we intend to invest the net proceeds, if any, in a variety of capital preservation instruments, including short-term, interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed obligations of the U.S. government.
TABLE OF CONTENTS
General
On August 10, 2023, we entered into the Purchase Agreement with Lincoln Park. In connection with the Purchase Agreement, on August 10, 2023, we also entered into a registration rights agreement (the “Registration Rights Agreement”) with Lincoln Park, pursuant to which we agreed to take specified actions to maintain the registration of the shares of our common stock subject to the offering described in this prospectus. Pursuant to the terms of the Purchase Agreement, Lincoln Park has agreed to purchase from us up to $50,000,000 of our common stock (subject to certain limitations) from time to time during the 30-month term of the Purchase Agreement. Pursuant to the terms of the Purchase Agreement and Registration Rights Agreement, we have filed with the SEC this prospectus regarding the sale under the Securities Act of the shares issuable to Lincoln Park under the Purchase Agreement. Pursuant to the terms of the Purchase Agreement, on the date of this prospectus, we are issuing 246,792 Commitment Shares to Lincoln Park as consideration for its commitment to purchase shares of our common stock under the Purchase Agreement. We have also paid a cash fee of $40,000 to Lincoln Park as Lincoln Park’s full and complete expense reimbursement in connection with entering into the transaction, including any legal fees.
Under the Prior S-3 Shelf and the Prior Prospectus, the Company registered the offer and sale of up to $50,000,000 of shares of our common stock and an additional 246,792 Commitment Shares under the Purchase Agreement. Since August 11, 2023, the Company issued the 246,792 Commitment Shares and sold 1.3 million shares to Lincoln Park under the Purchase Agreement. Because the Prior S-3 Shelf expires on February 12, 2024, the Company has filed this New Form S-3 Shelf, which includes this prospectus as a part thereof, which Prospectus supersedes and replaces the Prior Prospectus, registering the offer and sale of up to $50,000,000 shares of our common stock and the Commitment Shares under the Purchase Agreement.
We may, from time to time and at our sole discretion, direct Lincoln Park to purchase shares of our common stock upon the satisfaction of certain conditions set forth in the Purchase Agreement at purchase prices per share as computed in accordance with the terms as set forth in the Purchase Agreement. We will control the timing and amount of any sales of our common stock to Lincoln Park, and Lincoln Park has no right to require us to sell any shares to it under the Purchase Agreement. Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement.
Under applicable Nasdaq listing rules, we are prohibited from issuing to Lincoln Park more than the Exchange Cap of 4,195,058 shares of common stock under the Purchase Agreement (including Purchase Shares and Commitment Shares), representing 19.99% of the outstanding shares of our common stock immediately prior to the execution of the Purchase Agreement (subject to certain reductions and pro rata adjustments as set forth in the Purchase Agreement), unless (i) we first obtain stockholder approval in accordance with applicable Nasdaq listing rules to issue shares in excess of the Exchange Cap to Lincoln Park under the Purchase Agreement or (ii) the average price paid by Lincoln Park for all shares of common stock issued by us under the Purchase Agreement is equal to or greater than $4.399 (which represents the lower of (A) the official closing price of our common stock on Nasdaq on the date of the Purchase Agreement and (B) the average official closing price of our common stock on Nasdaq for the five consecutive trading days ending on the date of the Purchase Agreement, as adjusted to take into account our issuance of the Commitment Shares to Lincoln Park for non-cash consideration), such that the Exchange Cap will not apply under applicable Nasdaq listing rules to limit issuances and sales of our common stock to Lincoln Park pursuant to the Purchase Agreement. In any event, the Purchase Agreement specifically provides that we may not issue or sell any shares of our common stock under the Purchase Agreement if such issuance or sale would breach any applicable Nasdaq listing rules.
The Purchase Agreement also prohibits us from directing Lincoln Park to purchase any shares of our common stock if those shares of our common stock, when aggregated with all other shares of our common stock then beneficially owned by Lincoln Park and its affiliates (as calculated pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, and Rule 13d-3 thereunder), would result in Lincoln Park having beneficial ownership of shares of our common stock in excess of the 4.99% Beneficial Ownership Cap, which Beneficial Ownership Cap Lincoln Park may, in its sole discretion, increase to up to 9.99% of our outstanding shares of common stock by delivering written notice thereof to us, which shall not be effective until the 61st day after such written notice is delivered to us.
TABLE OF CONTENTS
Purchase of Shares under the Purchase Agreement
Regular Purchases
Under the Purchase Agreement, after the Commencement Date (as defined below), on any business day selected by us, we may direct Lincoln Park to purchase up to 50,000 shares of our common stock on such business day (or the purchase date), which we refer to as a Regular Purchase, provided that the Closing Sale Price of our common stock on the applicable Purchase Date is not below $0.25, provided, however, that (i) a Regular Purchase may be increased to up to 60,000 shares if the closing sale price of our common stock on Nasdaq is not below $5.00 on the applicable purchase date and (ii) a Regular Purchase may be increased to up to 70,000 shares if the closing sale price of our common stock on Nasdaq is not below $7.50 on the applicable purchase date. Lincoln Park’s committed obligation under any single regular purchase, subject to certain exceptions, cannot exceed $1,000,000. We may direct Lincoln Park to purchase shares in Regular Purchases as often as every business day. The foregoing share amounts and per share prices will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring after the date of the Purchase Agreement.
The purchase price per share for each such Regular Purchase will be equal to the lesser of:
• | the lowest sale price for our common stock on Nasdaq on the purchase date of such shares; and |
• | the arithmetic average of the three (3) lowest closing sale prices for our common stock on Nasdaq during the ten (10) consecutive business days prior to the purchase date of such shares. |
Accelerated Purchases
We may also direct Lincoln Park, on any business day on which we have submitted a Regular Purchase notice for the maximum amount allowed for such Regular Purchase, to purchase an additional amount of our common stock, which we refer to as an Accelerated Purchase, of up to the lesser of:
• | three (3) times the number of shares purchased pursuant to such Regular Purchase; or |
• | 30% of the aggregate shares of our common stock traded on Nasdaq during the period on the trading day immediately following the purchase date for such Regular Purchase (the “Accelerated Purchase Date”), beginning at the commencement of regular trading on Nasdaq (or such later time on such Accelerated Purchase Date as mutually agreed by us and Lincoln Park specified in the Accelerated Purchase notice for such Accelerated Purchase), and ending at the close of regular trading on Nasdaq on such Accelerated Purchase Date, or, if certain trading volume or market price thresholds specified in the Purchase Agreement are crossed prior to the close of regular trading on Nasdaq on the applicable Accelerated Purchase Date, ending at such earlier time that any one of such thresholds is crossed, which period of time on the applicable Accelerated Purchase Date (the “Accelerated Purchase Measurement Period”). |
The purchase price per share for each such Accelerated Purchase will be equal to 96.5% of the lower of:
• | the closing sale price of our common stock on Nasdaq on the applicable Accelerated Purchase date; and |
• | the volume-weighted average price of our common stock on Nasdaq during the applicable Accelerated Purchase Measurement Period on the applicable Accelerated Purchase date. |
Additional Accelerated Purchases
We may also direct Lincoln Park on any business day on which an Accelerated Purchase has been completed and all of the shares to be purchased thereunder have been delivered to Lincoln Park in accordance with the Purchase Agreement, to purchase an additional amount of our common stock, which we refer to as an Additional Accelerated Purchase, of up to the lesser of:
• | three (3) times the number of shares purchased pursuant to the applicable corresponding Regular Purchase; and |
• | 30% of the aggregate shares of our common stock traded on Nasdaq during the period on the applicable Additional Accelerated Purchase Date beginning at the time mutually agreed by us and |
TABLE OF CONTENTS
Lincoln Park and specified in the Additional Accelerated Purchase notice for such Additional Accelerated Purchase, and ending at the close of regular trading on Nasdaq on such Additional Accelerated Purchase Date, or, if certain trading volume or market price thresholds specified in the Purchase Agreement are crossed prior to the close of regular trading on Nasdaq on such date, ending at such earlier time that any one of such thresholds is crossed, which period of time on the applicable Additional Accelerated Purchase Date (the “Additional Accelerated Purchase Measurement Period”).
We may, in our sole discretion, submit multiple Additional Accelerated Purchase notices to Lincoln Park on a single Accelerated Purchase date, provided that all prior Accelerated Purchases and Additional Accelerated Purchases (including those that have occurred earlier on the same day) have been completed and all of the shares to be purchased thereunder have been properly delivered to Lincoln Park in accordance with the Purchase Agreement.
The purchase price per share for each such Additional Accelerated Purchase will be equal to 96.5% of the lower of:
• | the closing sale price of our common stock on Nasdaq on the applicable Additional Accelerated Purchase date; and |
• | the volume-weighted average price of our common stock on Nasdaq during the applicable Additional Accelerated Purchase Measurement Period on the applicable Additional Accelerated Purchase Date. |
In the case of Regular Purchases, Accelerated Purchases, and Additional Purchases, the purchase price per share will be equitably adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring between the business days used to compute the purchase price. Other than as set forth above, there are no trading volume requirements or restrictions under the Purchase Agreement, and we will control the timing and amount of any sales of our common stock to Lincoln Park.
Suspension Events
Suspension events under the Purchase Agreement include the following:
• | the effectiveness of the registration statement of which this prospectus lapses for any reason (including, without limitation, the issuance of a stop order or similar order by the SEC), or such registration statement (or the prospectus forming a part thereof) is unavailable for the sale by us or the resale by Lincoln Park of our common stock under the Purchase Agreement, and such lapse or unavailability continues for a period of 10 consecutive business days or for more than an aggregate of 30 business days in any 365-day period, but excluding a lapse or unavailability where (i) we terminate the registration statement after Lincoln Park has confirmed in writing that all of the shares of our common stock covered thereby have been resold or (ii) we supersede the registration statement with a new registration statement, including, without limitation, when the prior registration statement is effectively replaced with a new registration statement covering the shares of our common stock covered by the Purchase Agreement (provided in the case of this clause (ii) that all of the shares of our common stock covered by the superseded or terminated registration statement that have not theretofore been sold to Lincoln Park are included in the superseding or new registration statement); |
• | suspension by Nasdaq of our common stock from trading or the failure of the common stock to be listed on Nasdaq for a period of one business day; |
• | the delisting of our common stock from Nasdaq Capital Market, provided, however, that the common stock is not immediately thereafter trading on the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized successors thereto); |
• | the failure for any reason by our transfer agent to issue (i) the Commitment Shares to Lincoln Park within two business days after the commencement date of the Purchase Agreement, or (ii) Purchase Shares to Lincoln Park within two business days after any Regular Purchase date, Accelerated Purchase Date or Additional Accelerated Purchase Date, as applicable, on which Lincoln Park is entitled to receive such shares; |
TABLE OF CONTENTS
• | if we breach any representation, warranty, covenant, or other term or condition contained in the Purchase Agreement or Registration Rights Agreement if such breach would reasonably be expected to have a Material Adverse Effect (as defined in the Purchase Agreement) and, except, in the case of a breach of a covenant that is reasonably curable, only if such breach continues for a period of at least five business days; |
• | if any person commences a proceeding against the us pursuant to or within the meaning of any bankruptcy law; |
• | if we, pursuant to or within the meaning of any bankruptcy law, (i) commence a voluntary case, (ii) consent to the entry of an order for relief against us in an involuntary case, (iii) consent to the appointment of a custodian of the Company or for all or substantially all of our property, or (iv) makes a general assignment for the benefit of our creditors or are generally unable to pay our debts as the same become due; |
• | a court of competent jurisdiction enters an order or decree under any bankruptcy law that (i) is for relief against us in an involuntary case, (ii) appoints a custodian of the Company or for all or substantially all of our property, or (iii) orders the liquidation of us or any of our subsidiaries; |
• | if, at any time, we are not eligible to transfer our common stock electronically as DWAC shares; or |
• | if, at any time after the commencement date of the Purchase Agreement, the Exchange Cap is reached (to the extent such Exchange Cap is applicable) and the stockholder approval to issue in excess of such amount has not been obtained in accordance with the applicable rules of Nasdaq. |
In addition to any other rights and remedies under applicable law and the Purchase Agreement, so long as a suspension event has occurred and is continuing, or if any event which, after notice and/or lapse of time, would become a suspension event has occurred and is continuing, we shall not deliver to Lincoln Park any Regular Purchase notice, Accelerated Purchase notice or Additional Accelerated Purchase notice. Lincoln Park does not have the right to terminate the Purchase Agreement upon any of the suspension events set forth above, however, the Purchase Agreement will automatically terminate (i) if, pursuant to or within the meaning of any bankruptcy law, we commence a voluntary case or if any person commences a proceeding against us which is not discharged within 90 days, or a custodian is appointed for the Company or for substantially of all of our property, or we make a general assignment for the benefit of our creditors; (ii) we sell and Lincoln Park purchases the full amount of shares available under the Purchase Agreement; or (iii) the full amount of shares available under the Purchase Agreement has not been purchased by the end of the 30-month period commencing after the satisfaction of certain conditions set forth in the Purchase Agreement.
Our Termination Rights
We have the unconditional right, at any time, for any reason and without any payment or liability to us, to give one (1) business day notice to Lincoln Park to terminate the Purchase Agreement.
No Short-Selling or Hedging by Lincoln Park
Lincoln Park has represented and warranted that neither it nor any of its agents, representatives or affiliates has engaged in any direct or indirect short-selling or hedging of our common stock, and has agreed that neither it nor any of its agents, representatives or affiliates will engage in any direct or indirect short-selling or hedging of our common stock during any time prior to the termination of the Purchase Agreement.
Prohibitions on Variable Rate Transactions
Subject to specified exceptions included in the Purchase Agreement, we are limited in our ability to enter into specified variable rate transactions until the 30-month anniversary of the date of the Purchase Agreement, irrespective of any earlier termination of the Purchase Agreement. Such transactions include an equity line of credit, at-the-market offering, or other similar continuous offering in which we may offer or issue or sell our common stock or other securities that entitle the holder thereof to acquire shares of our common stock at a future determined price. However, we are permitted to enter into certain at-the-market offerings exclusively through a registered broker-dealer acting as agent of the Company pursuant to a written agreement between the Company and such registered broker-dealer, including our existing at-the-market offering.
TABLE OF CONTENTS
Effect of Performance of the Purchase Agreement on our Stockholders
All shares registered in this offering that have been or may be issued or sold by us to Lincoln Park under the Purchase Agreement are expected to be freely tradable. Shares registered in this offering may be sold over a period of up to 30 months commencing on the date of this prospectus. The sale by Lincoln Park of a significant amount of shares registered in this offering at any given time could cause the market price of our common stock to decline and to be highly volatile. Sales of our common stock to Lincoln Park, if any, will depend upon market conditions and other factors to be determined by us. We may ultimately decide to sell to Lincoln Park all, some or none of the additional shares of our common stock that may be available for us to sell pursuant to the Purchase Agreement. If and when we do sell shares to Lincoln Park, after Lincoln Park, has acquired the shares, Lincoln Park may resell all, some or none of those shares at any time or from time to time in its discretion. Therefore, sales to Lincoln Park by us under the Purchase Agreement may result in substantial dilution to the interests of other holders of our common stock. In addition, if we sell a substantial number of shares to Lincoln Park under the Purchase Agreement, or if investors expect that we will do so, the actual sales of shares or the mere existence of our arrangement with Lincoln Park may make it more difficult for us to sell equity or equity-related securities in the future at a time and at a price that we might otherwise wish to effect such sales. However, we have the right to control the timing and amount of any additional sales of our shares to Lincoln Park and the Purchase Agreement may be terminated by us at any time at our discretion without any cost to us.
Pursuant to the terms of the Purchase Agreement, we have the right, but not the obligation, to direct Lincoln Park to purchase up to $50,000,000 of our common stock, exclusive of the Initial Commitment Shares being issued to Lincoln Park as consideration for its commitment to purchase shares of our common stock under the Purchase Agreement and the Additional Commitment Shares that may be issued to Lincoln Park in connection with each purchase under the Purchase Agreement. The Purchase Agreement generally prohibits us from issuing or selling to Lincoln Park under the Purchase Agreement (i) shares of our common stock in excess of the Exchange Cap, unless we obtain stockholder approval to issue shares in excess of the Exchange Cap or the shares we desire to sell in excess of the Exchange Cap must be sold for an average price that equals or exceeds $4.399 per share (subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or after the date of the Purchase Agreement), such that the transactions contemplated by the Purchase Agreement are exempt from the Exchange Cap limitation under applicable Nasdaq rules and (ii) any shares of our common stock if those shares, when aggregated with all other shares of our common stock then beneficially owned by Lincoln Park and its affiliates, would exceed the Beneficial Ownership Limitation of our then issued and outstanding shares of common stock.
The following table sets forth the amount of gross proceeds we would receive from Lincoln Park from our sale of shares to Lincoln Park under the Purchase Agreement at varying purchase prices:
$2.00 | | | 4,195,058(3) | | | 16.50% | | | $8,390,116 |
$3.00 | | | 4,195,058(3) | | | 16.50% | | | $12,585,174 |
$3.25(4) | | | 4,195,058(3) | | | 16.50% | | | $13,633,939 |
$4.00 | | | 10,000,000 | | | 32.02% | | | $50,000,000 |
$5.00 | | | 8,333,333 | | | 28.19% | | | $50,000,000 |
$6.00 | | | 7,142,857 | | | 25.17% | | | $50,000,000 |
(1)
| Includes the total number of Purchase Shares which we would have sold under the Purchase Agreement at the corresponding assumed average purchase price set forth in the first column, up to the aggregate purchase price of $50,000,000, if available, while giving effect to the Exchange Cap and without regard for the limitation of 9.99% of our outstanding shares of common stock that Lincoln Park may beneficially own under the Purchase Agreement, and excludes the Commitment Shares. |
(2)
| The denominator is based on 20,985,784 shares outstanding as of June 30, 2023. The numerator is based on the number of shares issuable under the Purchase Agreement (that are the subject of this offering) at the corresponding assumed average purchase price set forth in the first column, which excludes the issuance of the Commitment Shares. |
(3)
| This number of shares reflects the Exchange Cap. We may only issue shares of our common stock in excess of the Exchange Cap if we obtain stockholder approval to do so, or if the average price of all shares of common stock issued to Lincoln Park under the Purchase Agreement equals or exceeds $4.399 per share. |
(4)
| The closing sale price of our common stock on The Nasdaq Capital Market on January 9, 2024. |
TABLE OF CONTENTS
Pursuant to this prospectus, we are offering up to $50,000,000 in shares of our common stock and 246,792 shares of our common stock are being issued to Lincoln Park as Commitment Shares pursuant to the Purchase Agreement. This prospectus also cover the resale of these shares by Lincoln Park to the public. Under the Prior S-3 Shelf and the Prior Prospectus, the Company registered the offer and sale of up to $50,000,000 of shares of our common stock and an additional 246,792 Commitment Shares under the Purchase Agreement. Since August 11, 2023, the Company issued the 246,792 Commitment Shares and sold 1.3 million shares to Lincoln Park under the Purchase Agreement. Because the Prior S-3 Shelf expires on February 12, 2024, the Company has filed this New Form S-3 Shelf, which includes this prospectus as a part thereof, which Prospectus supersedes and replaces the Prior Prospectus, registering the offer and sale of up to $50,000,000 shares of our common stock and the Commitment Shares under the Purchase Agreement.
We may, from time to time, and at our sole discretion, direct Lincoln Park to purchase shares of our common stock in a Regular Purchase in amounts up to the greater of 50,000 shares on any single business day from and after the Commencement provided that the closing sale price of our common stock is not below $0.25, which amounts may be increased to up to 60,000 shares or 70,000 shares of our common stock depending on the market price of our common stock at the time of sale, subject to, upon the parties mutual agreement, which share amounts and related market prices will be adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction occurring after the date of the Purchase Agreement. In addition, upon notice to Lincoln Park, we may, from time to time and at our sole discretion, direct Lincoln Park to purchase additional shares of our common stock in “accelerated purchases,” and/or “additional accelerated purchases” as set forth in the Purchase Agreement. The purchase price per share is computed in accordance with the terms as set forth in the Purchase Agreement. Lincoln Park may not assign or transfer its rights and obligations under the Purchase Agreement. See “Lincoln Park Transaction - Purchases of Shares under the Purchase Agreement.”
Lincoln Park is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has informed us that it will use an unaffiliated broker-dealer to effectuate all sales, if any, of the common stock that it may purchase from us pursuant to the Purchase Agreement. Such sales will be made on Nasdaq at prices and at terms then prevailing or at prices related to the then current market price. Each such unaffiliated broker-dealer will be an underwriter within the meaning of Section 2(a)(11) of the Securities Act. Lincoln Park has informed us that each such broker-dealer will receive commissions from Lincoln Park that will not exceed customary brokerage commissions.
We know of no existing arrangements between Lincoln Park and any other stockholder, broker, dealer, underwriter, or agent relating to the sale or distribution of the shares offered by this prospectus.
We have paid $40,000 to Lincoln Park as Lincoln Park’s full and complete expense reimbursement in connection with entering into the transaction, including any legal fees.
We have agreed to indemnify Lincoln Park and certain other persons against certain liabilities in connection with the offering of shares of common stock offered hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities.
Lincoln Park represented to us that at no time prior to the date of the Purchase Agreement has Lincoln Park or its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any short sale (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of our common stock or any hedging transaction, which establishes a net short position with respect to the common stock. Lincoln Park agreed that during the term of the Purchase Agreement, it, its agents, representatives or affiliates will not enter into or effect, directly or indirectly, any of the foregoing transactions.
We have advised Lincoln Park that it is required to comply with Regulation M promulgated under the Exchange Act. With certain exceptions, Regulation M precludes Lincoln Park, any affiliated purchasers, and any broker-dealer or other person who participates in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. All of the foregoing may affect the marketability of the shares offered by this prospectus.
This offering will terminate on the date that all shares offered by this prospectus have been sold to Lincoln Park.
Our common stock is listed on The Nasdaq Capital Market and trades under the symbol “OCUP.” The transfer agent of our common stock is Equiniti Trust Company.
TABLE OF CONTENTS
The validity of the issuance of our common stock offered in this prospectus will be passed upon for us by Honigman LLP, Kalamazoo, Michigan. Reed Smith LLP, New York, New York, is counsel for Lincoln Park in connection with this offering.
The consolidated financial statements of Ocuphire Pharma, Inc. appearing in Ocuphire Pharma, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus forms a part of a registration statement on Form S-3 that we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. You should rely only on the information contained in this prospectus or incorporated by reference. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We are currently subject to the reporting requirements of the Exchange Act, and in accordance therewith, file periodic reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC, including Ocuphire. The address of the SEC website is www.sec.gov. Our SEC filings are available to you on the SEC’s website at https://www.sec.gov and in the “Investor Relations” section of our website at https://ocuphire.com. Our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus.
TABLE OF CONTENTS
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings (including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the termination of the offering of the shares covered by this prospectus (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K):
• | our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, and the information specifically incorporated by reference into our Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 1, 2023; |
• | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023 filed with the SEC on May 15, 2023, August 11, 2023, and November 13, 2023; |
• | our Current Reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on January 25, 2023, April 21, 2023, June 2, 2023, June 9, 2023, June 14, 2023, August 11, 2023; September 27, 2023; November 1, 2023, November 2, 2023, November 27, 2023, and December 6, 2023; and |
• | the description of common stock set forth in the Registration Statement on Form 8-A, filed with the SEC on June 7, 2019, including any amendments thereto or reports filed for the purposes of updating this description, as updated by Exhibit 4.6 to our Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, including any amendments or reports filed for the purposes of updating this description. |
We will furnish without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents. You may request a copy of these documents by writing or telephoning us at the following address:
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
Attn: Dr. George Magrath, Chief Executive Officer
TABLE OF CONTENTS
$50,000,000 and
246,792 Shares of Common Stock
PROSPECTUS
, 2024
TABLE OF CONTENTS
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.
| Other Expenses of Issuance and Distribution. |
The following table sets forth the estimated costs and expenses, other than the underwriting discounts and commissions, payable by us, in connection with the offering of the securities pursuant to this Registration Statement:
SEC Registration Fee | | | $25,830 |
FINRA Filing Fee | | | $26,750 |
Legal Fees and Expenses | | | (1) |
Accounting Fees | | | (1) |
Miscellaneous Fees | | | (1) |
Total | | | (1) |
(1)
| The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement. |
Item 15.
| Indemnification of Directors and Officers. |
Delaware General Corporation Law
Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Section 145(b) of the DGCL states that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which the person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
TABLE OF CONTENTS
Section 145(d) of the DGCL states that any indemnification under subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145. Such determination shall be made with respect to a person who is a director or officer at the time of such determination (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders.
Section 145(f) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Certificate of Incorporation and Bylaws
We have adopted provisions in our Second Amended and Restated Bylaws that provide for indemnification of our officers and directors to the maximum extent permitted under the DGCL. As authorized by the DGCL, our Certificate of Incorporation, as amended, limits the liability of our directors for monetary damages. The effect of this provision is to eliminate our rights and that of our stockholders to recover monetary damages against a director for breach of the fiduciary duty of care as a director except in certain limited situations. This provision does not limit or eliminate our rights or that of any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. These provisions will not alter the liability of directors under federal securities laws.
Indemnification Agreements
We have entered into indemnification agreements with each of our current directors and officers. These agreements will require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
Insurance Policy
We have purchased an insurance policy that purports to insure our officers and directors against certain liabilities incurred by them in the discharge of their functions as such officers and directors.
The foregoing summaries are not intended to be exhaustive and are qualified in their entirety by reference to the complete text of the statute, the Company’s restated certificate of incorporation, as amended and the agreements referred to above and are qualified in their entirety by reference thereto.
TABLE OF CONTENTS
1.1* | | | Form of Underwriting Agreement. |
| | | |
| | | Capital on Demand™ Sales Agreement, dated March 11, 2021 between Ocuphire Pharma, Inc. and JonesTrading Institutional Services LLC (incorporated by reference to Exhibit 1.1 to the Registrant’s Current Report on Form 8-K, filed on March 11, 2021). |
| | | |
| | | Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Appendix G to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on April 29, 2005). |
| | | |
| | | Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on May 5, 2017). |
| | | |
| | | Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on August 30, 2018). |
| | | |
| | | Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on April 12, 2019). |
| | | |
| | | Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on November 6, 2020). |
| | | |
| | | Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed on November 6, 2020). |
| | | |
| | | Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to the Registrant’s Current Report on Form 8-K, filed on November 6, 2020). |
| | | |
| | | First Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 10, 2022). |
| | | |
| | | Second Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 17, 2022). |
| | | |
| | | Third Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 2, 2023). |
| | | |
| | | Specimen Certificate for the Registrant’s Common Stock, par value $.0001 per share (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-8 (File No. 333-129294), filed on October 28, 2005). |
| | | |
4.12* | | | Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. |
| | | |
| | | Form of Indenture. |
| | | |
4.14* | | | Form of Debt Securities. |
| | | |
TABLE OF CONTENTS
| | | Form of Common Stock Warrant Agreement and Warrant Certificate. |
| | | |
| | | Form of Preferred Stock Warrant Agreement and Warrant Certificate. |
| | | |
| | | Form of Debt Securities Warrant Agreement and Warrant Certificate. |
| | | |
| | | Opinion of Honigman LLP. |
| | | |
| | | Purchase Agreement, dated as of August 10, 2023, by and between Ocuphire Pharma, Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on August 11, 2023). |
| | | |
| | | Registration Rights Agreement, dated as of August 10, 2023, by and between Ocuphire Pharma, Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, filed on August 11, 2023). |
| | | |
| | | Consent of Independent Registered Public Accounting Firm. |
| | | |
| | | Consent of Honigman LLP (reference is made to Exhibit 5.1). |
| | | |
| | | Power of Attorney (included on signature page). |
| | | |
25.1*+ | | | Statement of Eligibility of Trustee under the Indenture. |
| | | |
| | | Filing Fee Table. |
*
| To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable. |
+
| To be filed separately under electronic form type 305B2, if applicable. |
The undersigned registrants hereby undertakes:
(a)
| To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i)
| to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii)
| to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” in the effective registration statement; and |
(iii)
| to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
|
provided, however, that the undertakings set forth in paragraphs (i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports
TABLE OF CONTENTS
filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(b)
| That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c)
| 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. |
(d)
| That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i)
| Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii)
| Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time |
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(e)
| That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i)
| Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii)
| Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii)
| The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv)
| Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(f)
| That for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to |
TABLE OF CONTENTS
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(g)
| 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 Trust Indenture Act. |
(h)
| Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
TABLE OF CONTENTS
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 Farmington Hills, state of Michigan, on January 10, 2024.
| | | OCUPHIRE PHARMA, INC. |
| | | | | | |
| | | By: | | | /s/ Dr. George Magrath |
| | | | | | Dr. George Magrath |
| | | | | | Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dr. George Magrath, Amy Rabourn and Bernhard Hoffmann, and each of them, as his or her true and lawful agent, proxy and attorney-in-fact, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign, and file with the SEC any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act, and (iv) take any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
| | | | | | |
/s/ Dr. George Magrath | | | President, Chief Executive Officer, and Director
(Principal Executive Officer) | | | January 10, 2024 |
Dr. George Magrath | |
| | | | | | |
/s/ Amy Rabourn | | | Senior Vice President of Finance
(Principal Financial and Accounting Officer) | | | January 10, 2024 |
Amy Rabourn | |
| | | | | | |
/s/ Sean Ainsworth | | | Director | | | January 10, 2024 |
Sean Ainsworth | |
| | | | | | |
/s/ James S. Manuso | | | Director | | | January 10, 2024 |
James S. Manuso | |
| | | | | | |
/s/ Cam Gallagher | | | Director | | | January 10, 2024 |
Cam Gallagher | |
| | | | | | |
/s/ Jay Pepose | | | Director | | | January 10, 2024 |
Jay Pepose | |
| | | | | | |
/s/ Richard J. Rodgers | | | Director | | | January 10, 2024 |
Richard J. Rodgers | |
| | | | | | |
/s/ Susan K. Benton | | | Director | | | January 10, 2024 |
Susan K. Benton | |
Exhibit
4.13
OCUPHIRE
PHARMA, INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of [●], 20_____
Debt Securities
TABLE
OF CONTENTS
| ARTICLE
1 DEFINITIONS |
1 |
| |
|
| Section 1.01 |
Definitions of Terms |
1 |
| |
|
| ARTICLE 2 ISSUE, DESCRIPTION, TERMS,
EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
|
| Section 2.01 |
Designation and Terms of Securities |
4 |
| Section 2.02 |
Form of Securities and Trustee’s Certificate |
6 |
| Section 2.03 |
Denominations: Provisions for Payment |
6 |
| Section 2.04 |
Execution and Authentications |
8 |
| Section 2.05 |
Registration of Transfer and Exchange |
8 |
| Section 2.06 |
Temporary Securities |
9 |
| Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
9 |
| Section 2.08 |
Cancellation |
10 |
| Section 2.09 |
Benefits of Indenture |
10 |
| Section 2.10 |
Authenticating Agent |
10 |
| Section 2.11 |
Global Securities |
11 |
| Section 2.12 |
CUSIP Numbers |
11 |
| |
|
| ARTICLE 3 REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS |
12 |
| |
|
| Section 3.01 |
Redemption |
12 |
| Section 3.02 |
Notice of Redemption |
12 |
| Section 3.03 |
Payment Upon Redemption |
13 |
| Section 3.04 |
Sinking Fund |
13 |
| Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
13 |
| Section 3.06 |
Redemption of Securities for Sinking Fund |
13 |
| |
|
| ARTICLE 4 COVENANTS |
14 |
| |
|
| Section 4.01 |
Payment of Principal, Premium and Interest |
14 |
| Section 4.02 |
Maintenance of Office or Agency |
14 |
| Section 4.03 |
Paying Agents |
14 |
| Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
15 |
| |
|
| ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE |
15 |
| |
|
| Section 5.01 |
Company to Furnish Trustee Names and Addresses of Securityholders |
15 |
| Section 5.02 |
Preservation of Information; Communications with Securityholders |
15 |
| Section 5.03 |
Reports by the Company |
15 |
| Section 5.04 |
Reports by the Trustee |
16 |
| |
|
| ARTICLE 6 REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| |
|
| Section 6.01 |
Events of Default |
16 |
| Section 6.02 |
Collection of Indebtedness and Suits for Enforcement
by Trustee |
18 |
| Section 6.03 |
Application of Moneys Collected |
19 |
| Section 6.04 |
Limitation on Suits |
19 |
| Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission Not
Waiver |
19 |
| Section 6.06 |
Control by Securityholders |
20 |
| Section 6.07 |
Undertaking to Pay Costs |
20 |
| ARTICLE 7 CONCERNING THE TRUSTEE |
20 |
| |
|
| Section 7.01 |
Certain Duties and Responsibilities of Trustee |
20 |
| Section 7.02 |
Certain Rights of Trustee |
21 |
| Section 7.03 |
Trustee Not Responsible for Recitals or Issuance or
Securities |
23 |
| Section 7.04 |
May Hold Securities |
23 |
| Section 7.05 |
Moneys Held in Trust |
23 |
| Section 7.06 |
Compensation and Reimbursement |
23 |
| Section 7.07 |
Reliance on Officer’s Certificate |
24 |
| Section 7.08 |
Disqualification; Conflicting Interests |
24 |
| Section 7.09 |
Corporate Trustee Required; Eligibility |
24 |
| Section 7.10 |
Resignation and Removal; Appointment of Successor |
25 |
| Section 7.11 |
Acceptance of Appointment by Successor |
25 |
| Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
26 |
| Section 7.13 |
Preferential Collection of Claims Against the Company |
27 |
| Section 7.14 |
Notice of Default |
27 |
| |
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
27 |
| |
|
| Section 8.01 |
Evidence of Action by Securityholders |
27 |
| Section 8.02 |
Proof of Execution by Securityholders |
27 |
| Section 8.03 |
Who May be Deemed Owners |
28 |
| Section 8.04 |
Certain Securities Owned by Company Disregarded |
28 |
| Section 8.05 |
Actions Binding on Future Securityholders |
28 |
| |
|
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
28 |
| |
|
| Section 9.01 |
Supplemental Indentures without the Consent of Securityholders |
28 |
| Section 9.02 |
Supplemental Indentures with Consent of Securityholders |
29 |
| Section 9.03 |
Effect of Supplemental Indentures |
30 |
| Section 9.04 |
Securities Affected by Supplemental Indentures |
30 |
| Section 9.05 |
Execution of Supplemental Indentures |
30 |
| |
|
| ARTICLE 10 SUCCESSOR ENTITY |
30 |
| |
|
| Section 10.01 |
Company May Consolidate, Etc. |
30 |
| Section 10.02 |
Successor Entity Substituted |
31 |
| |
|
| ARTICLE 11 SATISFACTION AND DISCHARGE |
31 |
| |
|
| Section 11.01 |
Satisfaction and Discharge of Indenture |
31 |
| Section 11.02 |
Discharge of Obligations |
32 |
| Section 11.03 |
Deposited Moneys to be Held in Trust |
32 |
| Section 11.04 |
Payment of Moneys Held by Paying Agents |
32 |
| Section 11.05 |
Repayment to Company |
32 |
| |
|
| ARTICLE 12 IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
|
| Section 12.01 |
No Recourse |
32 |
| |
|
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
33 |
| |
|
| Section 13.01 |
Effect on Successors and Assigns |
33 |
| Section 13.02 |
Actions by Successor |
33 |
| Section 13.03 |
Surrender of Company Powers |
33 |
| Section 13.04 |
Notices |
33 |
| Section 13.05 |
Governing Law; Jury Trial Waiver |
33 |
| Section 13.06 |
Treatment of Securities as Debt |
34 |
| Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
34 |
| Section 13.08 |
Payments on Business Days |
34 |
| Section 13.09 |
Conflict with Trust Indenture Act |
34 |
| Section 13.10 |
Counterparts |
34 |
| Section 13.11 |
Severability |
34 |
| Section 13.12 |
Compliance Certificates |
35 |
| Section 13.13 |
U.S.A. Patriot Act |
35 |
| Section 13.14 |
Force Majeure |
35 |
| Section 13.15 |
Table of Contents; Headings |
35 |
INDENTURE
THIS
INDENTURE, dated as of [●], 20___, between Ocuphire Pharma, Inc.,
a Delaware corporation (the “Company”), and [TRUSTEE], as trustee (the “Trustee”):
Recitals
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Agreement
Now,
Therefore, in consideration of the premises
and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural as well as the singular. All other terms used in
this Indenture that are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in
the Securities Act of 1933, as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed
by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on
the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking
institutions in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are
authorized or obligated by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if
at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such time.
“Company”
means Ocuphire Pharma, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article Ten, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is located at .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued
as a Global Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant
to either Section 2.01 or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
The
term “given”, “mailed”, “notify” or “sent”
with respect to any notice to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to
the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Security) or (y) mailed to
such Holder by first class mail, postage prepaid, at its address as it appears on the Security Register (in the case of a definitive
Security). Notice so “given” shall be deemed to include any notice to be “mailed” or “delivered,”
as applicable, under this Indenture.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the
Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all
in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer thereof
at any time prior to the stated maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided, however,
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the terms hereof and shall include the terms of particular series
of Securities established as contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means
the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a
chief financial officer, a chief operating officer, any executive vice president, any senior vice president, any vice president,
the treasurer or any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee
of or counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association,
trust, unincorporated organization, any other entity or organization, including a government or political subdivision or an agency
or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and in
each case who shall have direct responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means
the Person or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose
in accordance with the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than
50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries
of such Person; or (iii) one or more Subsidiaries of such Person.
“Trustee”
means ________, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if
at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person.
The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect
to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
ARTICLE
2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance
of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any
subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another
security or the method by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
(12) the
date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking
fund or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of
Securities and the currency or currency unit in which the Securities are payable;
(13) the
denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14) any
and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15) whether
the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16) if
applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion
or exchange, which may, without limitation, include the payment of cash as well as the delivery of securities;
(17) if
other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions
to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19) additions
to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders
to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions
to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions
to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23) the
currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether
interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the
terms and conditions upon which the election may be made;
(25) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any
other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All
Securities of any one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board
Resolution or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and
set forth in an Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any securities exchange on which Securities of that series may be listed,
or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates
and at the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the
Securities of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any
cash amount due upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America
that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose.
Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day
year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities)
is registered at the close of business on the regular record date for such interest installment. In the event that any Security
of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder
on the relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company,
at its election, as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered in the Security Register at the close of business on a special record date for the payment
of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be sent, to each Securityholder not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
in the Security Register on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to
a series of Securities and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately
preceding the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur,
if such Interest Payment Date is the first day of a month, or the first day of the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether
or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that
were carried by such other Security.
Section
2.04 Execution and Authentications.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile
signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding
the fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to
be such an officer of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication,
together with a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and
the Trustee in accordance with such written order shall authenticate and deliver such Securities.
Upon
the Company’s delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities
under this Indenture, the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate
stating that all conditions precedent to the execution, authentication and delivery of such Securities are in conformity with
the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for
other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a like aggregate principal amount.
The
Company initially appoints the Trustee as initial Security Registrar for each series of Securities.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory
to the Company or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney
in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange
of less than the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The
Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the sending of a notice of redemption of less than all
the Outstanding Securities of the same series and ending at the close of business on the day of such sending, nor (ii) to register
the transfer of or exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase,
but not validly withdrawn, other than the unredeemed portion of any such Securities being redeemed in part or not surrendered
for repurchase, as the case may be. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section
2.11 hereof.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers
between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of
any series shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will
execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of such series may
be surrendered in exchange therefor (without charge to the Securityholders), at the office or agency of the Company designated
for the purpose, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate
and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity as may be required
by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and
of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request
or authorization of any officer of the Company. Upon the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity
as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their
surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall,
if surrendered to the Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a certificate of disposition to the Company. If
the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture,
or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Securities.
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series
of Securities which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion
thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business
to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision
or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance
with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties
of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its
custodian, retained by the Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the
Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time determine that the Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate
evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.
Section
2.12 CUSIP Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the “CUSIP” numbers.
ARTICLE
3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing,
first class postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with
the applicable procedures of the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before
the date fixed for redemption of that series to such Securityholders, unless a shorter period is specified in the Securities to
be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether
or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed
for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by
lot, on a pro rata basis, or in such other manner as the Company shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may,
if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption
in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or such paying
agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may
be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest
on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion thereof.
On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest
accrued thereon to, but excluding, the date fixed for redemption (but if the date fixed for redemption is an Interest Payment
Date, the interest installment payable on such date shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense
of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series
is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied
by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together
with such Officer’s Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Securities to be redeemed upon such sinking fund payment date shall be selected in the
manner specified in Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided herein and established with respect to such Securities. Payments
of principal on the Securities may be made at the time provided herein and established with respect to such Securities by U.S.
dollar check drawn on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions
to the Trustee no later than 15 days prior to the relevant payment date. Payments of interest on the Securities may be made at
the time provided herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
if such Securityholder shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than
15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each
such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities
of that series may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration
of transfer and exchange and (iii) notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be given or served, such designation to continue with respect to such office or agency until the Company shall,
by written notice signed by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee as its paying
agent with respect to the Securities.
Section
4.03 Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee,
the Company or such paying agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
ARTICLE
5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series
of Securities as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the
Company and (b) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall be the Security
Registrar.
Section
5.02 Preservation of Information; Communications with Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section
5.03 Reports by the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide (which
delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to
the Trustee any correspondence filed with the Commission or any materials for which the Company has sought and received confidential
treatment by the Commission; and provided further, that so long as such filings by the Company are available on the Commission’s
Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have
been filed with the Trustee for purposes hereof without any further action required by the Company. For the avoidance of doubt,
a failure by the Company to file annual reports, information and other reports with the Commission within the time period prescribed
thereof by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine
any such reports, information or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance
with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained
therein. The Trustee shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings
with the Commission on EDGAR (or any successor system) has occurred.
Section
5.04 Reports by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall send to the
Securityholders a brief report dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee,
by registered or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities
of that series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and
unpaid interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs,
the principal of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and
payable without any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall
have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and
(ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal on
(and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings,
the Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of
a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the
same shall have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall
default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have
become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities
of that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and
to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at
any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of
any amounts due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any
Securityholder thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal
(or premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if
only partially paid, and upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively;
and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder; (iii) such Securityholder or Securityholders shall have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee
for 90 days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action,
suit or proceeding and (v) during such 90 day period, the holders of a majority in principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the
respective due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for
the enforcement of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Security of such series with every other such taker and holder and the Trustee, that no one or more holders
of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the
Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that
such direction shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion
to personal liability. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding
so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability
or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may
on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a default in
the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance
with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent
thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate
principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective
due dates expressed in such Security or established pursuant to this Indenture.
ARTICLE
7
CONCERNING THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture;
(ii) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series
of Securities hereunder.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to a series of the Securities (that has not been cured or waived), to exercise
with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and to use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her
own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire
as to the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security
or indemnity reasonably acceptable to the Trustee against such costs, expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances;
(i) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed
by an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee
e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to
act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall
not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The
party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions,
and the risk or interception and misuse by third parties. The Trustee may request that the Company deliver an Officer’s
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with
Officer’s Certificates, Company Orders and any other matters or directions pursuant to this Indenture.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities,
and each agent, custodian or other person employed to act under this Indenture.
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting
the failure to pay the interest on, or the principal of, the Securities if the Trustee also serves as the paying agent for such
Securities) until the Trustee shall have received written notification in the manner set forth in this Indenture or a Responsible
Officer of the Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus,
or any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities
or any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the
Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree
with the Company to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a) The
Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the Company
and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and
counsel.
(b) The
Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel)
incurred by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5),
the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith
are to constitute expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem
it reasonably necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate delivered to the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture
Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia,
or a corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such
corporation or other Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. The Company may not, nor may any Person directly or indirectly controlling, controlled by or under common control
with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the
sending of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may, on behalf of that holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided
in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment by Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to
the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money
held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring
Trustee shall with respect to the Securities of that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession
of such trustee hereunder to the Securityholders. If the Company fails to transmit such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the
Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be
the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent included therein.
Section
7.14 Notice of Default.
If
any Event of Default occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the
Trustee shall send to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act
notice of the Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer
of the Trustee or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or
specified percentage of that series have joined therein may be evidenced by any instrument or any number of instruments of similar
tenor executed by such holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record
date for such series for the determination of Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that series have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the
following manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Security shall be registered upon the books of the Security Registrar
as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred
in any direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other
obligor on the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes
of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this
Indenture in connection with such action, any holder of a Security of that series that is shown by the evidence to be included
in the Securities the holders of which have consented to such action may, by filing written notice with the Trustee, and upon
proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such
action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective
of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section
9.01 Supplemental Indentures without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than
all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely
for the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series
of Securities, or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the
consent of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures with Consent of Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of
the Securities of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner not covered by Section 9.01 the rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without the consent of the holders of each Security then
Outstanding and affected thereby, (a) extend the fixed maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption
thereof or (b) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental
indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance
thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of
the series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided
such form meets the requirements of any securities exchange upon which such series may be listed, as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in
the opinion of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion
but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01,
shall receive an Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution
of the supplemental indenture have been complied with; provided, however, that such Officer’s Certificate or Opinion of
Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series
of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the
Company shall (or shall direct the Trustee to) send a notice, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby .as their names and addresses appear upon the Security Register.
Any failure of the Company to send, or cause the sending of, such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE
10
SUCCESSOR ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or
not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with
the Company or its successor or successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation
or merger (in each case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other
disposition (other than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual
payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms
of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired
such property.
Section
10.02 Successor Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into
the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE
11
SATISFACTION AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and
that shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations
have theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or
discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one
year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys
or Governmental Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption
all Securities of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture
shall thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07,
4.01, 4.02, 4.03, 7.10, 11.05 and 13.04, that shall survive until the date of maturity or redemption date, as the case may be,
and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not
become due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee
as trust funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities
of that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest
due or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with respect to such series, then after the date such
moneys or Governmental Obligations, as the case may be, are deposited with the Trustee the obligations of the Company under this
Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07,
4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof that shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall
be available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent),
to the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations
have been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed
by the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest
on such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat
or abandoned or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request
or (if then held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities
entitled to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future
as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor
or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance
of such Securities.
ARTICLE
13
MISCELLANEOUS PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any
of the powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to
any successor corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited
in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as
follows: . Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this
Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law; Jury Trial Waiver.
This
Indenture and each Security shall be governed by, and construed in accordance with, the internal laws of the State of New York,
except to the extent that the Trust Indenture Act is applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions
of this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this
Indenture (other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied
with and, if requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section
314(a)(1) of the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read
such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person,
he has made such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any
Security or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium,
if any) may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity
or redemption, and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c)
of the Trust Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to
be their original signatures for all purposes.
Section
13.11 Severability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section
13.12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series
were outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred
during such fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial
officer or principal accounting officer of the Company that a review has been conducted of the activities of the Company and the
Company’s performance under this Indenture and that the Company has complied with all conditions and covenants under this
Indenture. For purposes of this Section 13.12, such compliance shall be determined without regard to any period of grace or requirement
of notice provided under this Indenture. If the officer of the Company signing such certificate has knowledge of such an Event
of Default, the certificate shall describe any such Event of Default and its status.
Section
13.13 U.S.A. Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to
satisfy the requirements of the U.S.A. Patriot Act.
Section
13.14 Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications
or computer (software and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or
any other agent under this Indenture shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section
13.15 Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference
only, are not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
In
Witness Whereof, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first above written.
|
Ocuphire
Pharma, Inc., as the Company |
CROSS-REFERENCE
TABLE (1)
| Section of Trust Indenture Act of 1939, as Amended |
|
Section of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
(1)
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any
of its terms or provisions.
Exhibit
4.15
OCUPHIRE
PHARMA, INC.
AND
__________, AS WARRANT AGENT
FORM OF COMMON STOCK
WARRANT AGREEMENT
DATED AS OF _____________
OCUPHIRE
PHARMA, INC. FORM OF COMMON STOCK WARRANT AGREEMENT
THIS
COMMON STOCK WARRANT AGREEMENT (this “Agreement”), dated as of [●], between Ocuphire
Pharma, Inc., a Delaware corporation (the “Company”), and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Recitals
Whereas,
the Company proposes to sell [If Warrants are sold with
other securities - [title of such other securities being offered] (the “Other Securities”) with]
warrant certificates evidencing one or more warrants (the “Warrants” or, individually, a “Warrant”)
representing the right to purchase Common Stock of the Company, par value $0.0001 per share (the “Warrant Securities”),
such warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant
Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the issuance, registration, transfer, exchange, exercise
and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be issued, registered, transferred, exchanged, exercised
and replaced.
Agreement
Now,
Therefore,
in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE
1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone - Upon issuance, each Warrant Certificate shall evidence one or
more Warrants.] [If Other Securities and Warrants - Warrant Certificates will be issued in connection with the
issuance of the Other Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein,
to purchase one Warrant Security. [If Other Securities and Warrants - Warrant Certificates will be issued with
the Other Securities and each Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount]
[[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed
on behalf of the Company by any of its present or future chief executive officers, presidents, senior vice presidents, vice presidents,
chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries
or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been
duly issued hereunder.
In
case any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature
shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant
Agent, such Warrant Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates
ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the
date of the execution of this Agreement any such person was not such officer.
The
term “holder” or “holder of a Warrant Certificate” as used herein shall mean
any person in whose name at the time any Warrant Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose.
1.3 Issuance of Warrant
Certificates. Warrant Certificates evidencing the right
to purchase Warrant Securities may be executed by the Company and delivered to the Warrant Agent upon the execution of this Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign such Warrant Certificates and shall deliver such Warrant Certificates to or upon the order of the Company.
ARTICLE
2
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable
Warrant Certificate at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain
events, as hereinafter provided. Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant
Price.”
2.2 Duration of Warrants.
Each Warrant may be exercised in whole or in part at any
time, as specified herein, on or after [the date thereof] [●] and at or before [●] p.m., [City] time, on [●]
or such later date as the Company may designate by notice to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant Agent (the “Expiration Date”). Each
Warrant not exercised at or before [●] p.m., [City] time, on the Expiration Date shall become void, and all rights of the
holder of the Warrant Certificate evidencing such Warrant under this Agreement shall cease.
2.3 Exercise of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant
is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within
five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant
Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment
in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid,
be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant
Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise
of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall
be effective to constitute the person so designated to be named as the holder of record of such Warrant Securities on such date,
but shall be effective to constitute such person as the holder of record of such Warrant Securities for all purposes at the opening
of business on the next succeeding day on which the transfer books for the Warrant Securities purchasable upon the exercise of
such Warrants shall be opened, and the certificates for the Warrant Securities in respect of which such Warrants are then exercised
shall be issuable as of the date on such next succeeding day on which the transfer books shall next be opened, and until such
date the Company shall be under no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in an account of the Company maintained with it and shall advise the
Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited
to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrant Securities
with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery
of Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the
Warrant Certificate evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant
Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign
and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been
established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times through the Expiration
Date keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise
of the Warrants.
ARTICLE
3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No Rights as Warrant
Securityholder Conferred by Warrants or Warrant Certificates.
No Warrant Certificate or Warrant evidenced thereby shall entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights, except to the extent expressly set forth in this Agreement or the applicable Warrant
Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance
of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section
3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled
to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other
Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s
right to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s
Warrant Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares, the
Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and the number of Warrant
Securities purchasable under the Warrants shall be proportionately increased. Conversely, in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall be proportionately increased and the number of Warrant Securities purchasable under the Warrants
shall be proportionately decreased.
(b) If at any time or from time to time the holders of Common Stock
(or any shares of stock or other securities at the time receivable
upon the exercise of the Warrants) shall have received or become entitled to receive, without payment therefor,
(i) Common
Stock or any shares of stock or other securities which are at any time directly or indirectly convertible into or
exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing
by way of dividend or other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or payable out of the Company’s current or retained earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe for or purchase the Company’s indebtedness;
or
(iv) Common
Stock or additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination
of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments in respect
of which shall be covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall,
upon the exercise of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon,
and without payment of any additional consideration therefore, the amount of stock and other securities and property (including
cash and indebtedness or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise
had such holder been the holder of record of such Warrant Securities as of the date on which holders of Common Stock received
or became entitled to receive such shares or all other additional stock and other securities and property.
(c) In case of (i) any reclassification, capital reorganization, or
change in the Common Stock of the Company (other than as a
result of a subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section 3.4(b) above), (ii) share exchange,
merger or similar transaction of the Company with or into another person or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving corporation and which does not result in any change in the Common
Stock other than the issuance of additional shares of Common Stock) or (iii) the sale, exchange, lease, transfer or other disposition
of all or substantially all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the expiration of the Warrants to purchase, at a total price equal to that
payable upon the exercise of the Warrants, the kind and amount of shares of stock and other securities and property receivable
in connection with such Reorganization Event by a holder of the same number of Warrant Securities as were purchasable by the holders
of the Warrants immediately prior to such Reorganization Event. In any such case appropriate provisions shall be made with respect
to the rights and interests of the holders of the Warrants so that the provisions hereof shall thereafter be applicable with respect
to any shares of stock or other securities and property deliverable upon exercise the Warrants, and appropriate adjustments shall
be made to the Warrant Price payable hereunder provided the aggregate purchase price shall remain the same. In the case of any
transaction described in clauses (ii) and (iii) above, the Company shall thereupon be relieved of any further obligation hereunder
or under the Warrants, and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound
up or liquidated. Such successor or assuming entity thereupon may cause to be signed, and may issue either in its own name or
in the name of the Company, any or all of the Warrants issuable hereunder which heretofore shall not have been signed by the Company,
and may execute and deliver securities in its own name, in fulfillment of its obligations to deliver Warrant Securities upon exercise
of the Warrants. All the Warrants so issued shall in all respects have the same legal rank and benefit under this Agreement as
the Warrants theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such Reorganization Event, such changes in phraseology and
form (but not in substance) may be made in the Warrants thereafter to be issued as may be appropriate. The Warrant Agent may receive
a written opinion of legal counsel as conclusive evidence that any such Reorganization Event complies with the provisions of this
Section 3.4.
(d) The
Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution
adopted by such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking
such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of shares of
Common Stock, or securities convertible into or exchangeable for shares of Common Stock, or securities carrying the right to purchase
any of the foregoing or for any other reason whatsoever.
(f) No fractional Warrant Securities shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised
at one time by the same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed
on the basis of the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional
Warrant Security which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales)
per Warrant Security, in either case as reported on the principal registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day that next precedes the day of exercise or, if the Warrant Securities
are not then listed or admitted to trading on any registered national securities exchange, the average of the closing high bid
and low asked prices as reported on the OTC Bulletin Board Service (the “OTC Bulletin Board”) operated
by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or, if not available on the OTC Bulletin
Board, then the average of the closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer
quotation system on such date, or if on any such date the Warrant Securities are not listed or admitted to trading on a registered
national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium
or inter-dealer quotation system, an amount equal to the same fraction of the average of the closing bid and asked prices as furnished
by any FINRA member firm selected from time to time by the Company for that purpose at the close of business on the business day
that next precedes the day of exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at
such holder’s address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant
Price then and thereafter effective under the provisions hereof, together with the facts, in reasonable detail, upon which
such adjustment is based.
(h) Notwithstanding anything to the contrary herein, in no event
shall the Warrant Price, as adjusted in accordance with the terms
hereof, be less than the par value per share of Common Stock.
3.5 Notice to Warrant Holders.
In case the Company shall (a) effect any dividend
or distribution described in Section 3.4(b), (b) effect any Reorganization Event, (c) make any distribution on or in respect of
the Common Stock in connection with the dissolution, liquidation or winding up of the Company or (d) reduce the then current Warrant
Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address as it
shall appear on the books of the Warrant Agent, at least ten days prior to the applicable date hereinafter specified, a notice
stating (x) the record date for such dividend or distribution, or, if a record is not to be taken, the date as of which the holders
of record of Common Stock that will be entitled to such dividend or distribution are to be determined, (y) the date on which such
Reorganization Event, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property
deliverable upon such Reorganization Event, dissolution, liquidation or winding up or (z) the first date on which the then current
Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any defect therein or in the mailing
thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section 3.4.
3.6 [If the Warrants are subject to acceleration by the Company -
Acceleration of Warrants by the Company.
(a) At any time on or after [●], the Company shall have the right
to accelerate any or all Warrants at any time by causing
them to expire at the close of business on the day next preceding a specified date (the “Acceleration Date”),
if the Market Price (as hereinafter defined) of the Common Stock equals or exceeds [●] percent ([●]%) of the then
effective Warrant Price on any twenty Trading Days (as hereinafter defined) within a period of thirty consecutive Trading Days
ending no more than five Trading Days prior to the date on which the Company gives notice to the Warrant Agent of its election
to accelerate the Warrants.
(b)“Market Price” for each Trading Day shall be, if the
Common Stock is listed or admitted to trading on any
registered national securities exchange, the last reported sale price, regular way (or, if no such price is reported, the average
of the reported closing bid and asked prices, regular way) of Common Stock, in either case as reported on the principal registered
national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading
on any registered national securities exchange, the average of the closing high bid and low asked prices as reported on the OTC
Bulletin Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average of the closing high bid and
low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system, or if on any such date the shares
of Common Stock are not listed or admitted to trading on a registered national securities exchange, are not included in the OTC
Bulletin Board, and are not quoted on any other U.S. quotation medium or inter-dealer quotation system, the average of the closing
bid and asked prices as furnished by any FINRA member firm selected from time to time by the Company for that purpose. “Trading
Day” shall be each Monday through Friday, other than any day on which securities are not traded in the system or on the
exchange that is the principal market for the Common Stock, as determined by the Board of Directors of the Company. In the event
of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot, pro
rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each
registered holder of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the
books of the Warrant Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than twenty days, and no less than ten days, prior to the mailing of notice to
registered holders of Warrants pursuant to this Section 3.6, by publication at least once in a newspaper of general
circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date.
The Warrant Price shall be payable as provided in Section 2.]
ARTICLE
4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange and Transfer of
Warrant Certificates. Upon surrender at the corporate
trust office of the Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged for Warrant Certificates in other
denominations evidencing such Warrants or the transfer thereof may be registered in whole or in part; provided that such other
Warrant Certificates evidence Warrants for the same aggregate number of Warrant Securities as the Warrant Certificates so surrendered.
The Warrant Agent shall keep, at its corporate trust office, books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers of outstanding Warrant Certificates, upon surrender
of the Warrant Certificates to the Warrant Agent at its corporate trust office for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or other governmental
charge that may be imposed in connection with any such exchange or registration of transfer. Whenever any Warrant Certificates
are so surrendered for exchange or registration of transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates duly authorized and executed
by the Company, as so requested. The Warrant Agent shall not be required to effect any exchange or registration of transfer which
will result in the issuance of a Warrant Certificate evidencing a Warrant for a fraction of a Warrant Security or a number of
Warrants for a whole number of Warrant Securities and a fraction of a Warrant Security. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid obligations of the Company, evidencing the same
obligations and entitled to the same benefits under this Agreement as the Warrant Certificate surrendered for such exchange or
registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation of Warrant
Certificates. Any Warrant Certificate surrendered for
exchange, registration of transfer or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered
to the Warrant Agent and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly canceled
by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall
be issued hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall deliver to the Company from time to time
or otherwise dispose of canceled Warrant Certificates in a manner satisfactory to the Company.
ARTICLE
5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and
such further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All
of the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and
governed by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the
holders from time to time of the Warrant Certificates shall be subject:
(a)
Compensation and Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent
in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct
on the part of the Warrant Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Agreement and in
connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of
the holders of Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, which may include counsel for the Company, and the
written advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice of such counsel.
(d)
Documents. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or
omitted by it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper
parties.
(e)
Certain Transactions. The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire
any interest in, Warrants, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and,
to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with
the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Securities or
other obligations of the Company as freely as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be
deemed to prevent the Warrant Agent from acting as trustee under any indenture to which the Company is a party.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest
on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or
any of the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made
solely by the Company.
(i)
No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are herein and in the
Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the
use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates. The Warrant
Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section
6.2 hereof, to make any demand upon the Company.
5.3 Resignation, Removal and Appointment of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times
be a Warrant Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that such date shall not be less than three months
after the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at
any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and
the intended date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company,
as hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding
the resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted,
or under any other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant
Agent or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered
for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property
or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment
as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor
Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall
be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets
and business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE
6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or
making any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent
may deem necessary or desirable; provided that such action shall not materially adversely affect the interests of the holders
of the Warrant Certificates.
6.2 Notices and Demands to the
Company and Warrant Agent. If the Warrant Agent shall
receive any notice or demand addressed to the Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Ocuphire
Pharma, Inc., 37000 Grand River Avenue, Suite 120, Farmington Hills, Michigan 48335, Attention: [●] (or such other address
as shall be specified in writing by the Warrant Agent or by the Company).
6.4 Governing Law. This
Agreement and each Warrant Certificate issued hereunder
shall be governed by and construed in accordance with the laws of the State of New York.
6.5 Delivery of Prospectus.
The Company shall furnish to the Warrant Agent sufficient
copies of a prospectus meeting the requirements of the Securities Act of 1933, as amended, relating to the Warrant Securities
deliverable upon exercise of the Warrants (the “Prospectus”), and the Warrant Agent agrees that upon
the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant Agent
shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities act
filings under United States Federal and state laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933, as amended), which may be or become requisite in connection
with the issuance, sale, transfer, and delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance,
sale, transfer and delivery of the Warrants or upon the expiration of the period during which the Warrants are
exercisable.
6.7 Persons
Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this
Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such
holder to submit such holder’s Warrant Certificate for inspection by it.
In
Witness Whereof,
the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
|
Ocuphire Pharma, Inc.,
as the Company |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
ATTEST: |
|
| |
|
|
| |
COUNTERSIGNED |
|
[●], as the Warrant Agent |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
ATTEST: |
|
| |
|
|
[SIGNATURE
PAGE TO OCUPHIRE PHARMA, INC. DEBT SECURITIES WARRANT AGREEMENT]
EXHIBIT
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
|
[Form of Legend if Warrants are not
immediately exercisable.]
|
[Prior to [●], Warrants evidenced by this
Warrant Certificate cannot be exercised.]
|
EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS
PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time, ON [●].
OCUPHIRE PHARMA, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
This
certifies that [●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m.,
[City] time, on [●], [●] shares of Common Stock, par value $0.0001 per share (the “Warrant Securities”),
of Ocuphire Pharma, Inc. (the “Company”) on the following basis: during the period from [●], through
and including [●], the exercise price per Warrant Security will be $[●], subject to adjustment as provided in the
Warrant Agreement (as hereinafter defined) (the “Warrant Price”). The Holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof and by paying in full, in lawful money of the United
States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer
in immediately available funds], the Warrant Price for each Warrant Security with respect to which this Warrant is exercised to
the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse hereof, and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
The
term “Holder” as used herein shall mean the person in whose name at the time this Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant
Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the
Holder hereof a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant
Agreement”), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent.
Transfer
of this Warrant Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in
the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate
number of Warrant Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to
the extent set forth in the Warrant Agreement) or to exercise any voting rights.
Reference
is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this
Warrant to be executed in its name and on its behalf by the facsimile signatures of its duly authorized officers.
Ocuphire
Pharma, Inc., as the Company
COUNTERSIGNED
[●],
as Warrant Agent
[REVERSE
OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of
the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant
Agent], Attention: [●], which payment must specify the name of the Holder and the number of Warrants exercised by such Holder.
In addition, the Holder must complete the information required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five business days of the payment.
(To
be executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise _________ Warrants, evidenced by this Warrant Certificate, to purchase _________
shares of the Common Stock, par value $0.0001 per share (the “Warrant Securities”), of Ocuphire Pharma,
Inc. and represents that the undersigned has tendered payment for such Warrant Securities, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], to the order of Ocuphire Pharma, Inc., c/o [insert name and address of Warrant Agent], in the amount
of $_________ in accordance with the terms hereof. The undersigned requests that said Warrant Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all as specified in accordance with the instructions
set forth below.
If
the number of Warrants exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the
undersigned unless otherwise specified in the instructions below.
| Dated: |
|
|
Name: |
|
| |
|
|
|
Please Print |
| Address: |
|
| (Insert Social Security or Other Identifying |
|
| Number of Holder) |
|
| Signature Guaranteed: |
|
|
| |
Signature |
|
(Signature
must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses: By hand at:
[●]
By
mail at:
[Instructions
as to form and delivery of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised - complete as appropriate.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer Warrant]
FOR
VALUE RECEIVED, _________________ hereby sells, assigns and transfers unto:
| |
|
|
| (Please print name and address including zip code) |
|
Please print Social Security or other
identifying number
|
the
right represented by the within Warrant to purchase _____________ shares of [Title of Warrant Securities] of Ocuphire Pharma,
Inc. to which the within Warrant relates and appoints ___________ attorney to transfer such right on the books of the Warrant
Agent with full power of substitution in the premises.
(Signature
must conform in all respects to name of holder as specified on the face of the Warrant)
Exhibit 4.16
OCUPHIRE PHARMA, INC.
AND
_____________, AS WARRANT AGENT
FORM OF PREFERRED STOCK
WARRANT AGREEMENT
DATED AS OF ______________
OCUPHIRE PHARMA, INC. FORM OF PREFERRED
STOCK WARRANT
AGREEMENT
THIS PREFERRED STOCK
WARRANT AGREEMENT (this “Agreement”), dated as of [●], between Ocuphire
Pharma, Inc., a Delaware corporation (the “Company”), and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Recitals
Whereas,
the Company proposes to sell [If Warrants are sold with other securities - [title of such other securities being
offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of Preferred Stock purchasable
through exercise of Warrants] of the Company, par value $0.0001 per share (the “Warrant Securities”),
such warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant
Certificates”; and
Whereas,
The Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, registered, transferred, exchanged, exercised and replaced.
Recitals
Now,
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto
agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone - Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants - Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Security.
[If Other Securities and Warrants - Warrant Certificates will be issued with the Other Securities and each Warrant
Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed
on behalf of the Company by any of its present or future chief executive officers, presidents, senior vice presidents, vice presidents,
chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries
or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate
shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer
of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time
any Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Securities may be executed by
the Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates
and shall deliver such Warrant Certificates to or upon the order of the Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE
OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to purchase the number of Warrant Securities specified in the applicable
Warrant Certificate at an exercise price of $[●] per Warrant Security, subject to adjustment upon the occurrence of certain
events, as hereinafter provided. Such purchase price per Warrant Security is referred to in this Agreement as the “Warrant
Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date
thereof] [●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by
notice to the Warrant Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books
of the Warrant Agent (the “Expiration Date”). Each Warrant not exercised at or before [●] p.m.,
[City] time, on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
2.3
Exercise of Warrants.
(a) During the
period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered form
by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank
wire transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being
exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business
days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of
the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed
to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates
and payment in full of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants
shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute
the person so designated to be named as the holder of record of such Warrant Securities on such date, but shall be effective to
constitute such person as the holder of record of such Warrant Securities for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be opened,
and the certificates for the Warrant Securities in respect of which such Warrants are then exercised shall be issuable as of the
date on such next succeeding day on which the transfer books shall next be opened, and until such date the Company shall be under
no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall advise the Company by telephone at the end of each
day on which a payment for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant
Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities with respect
to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants with
respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information
as the Company shall reasonably require.
(c) As soon as
practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered in such name
or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The Company
shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be
required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior to the
issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Warrant Securityholder Conferred by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Securities, including, without limitation,
the right to receive the payment of dividends or distributions, if any, on the Warrant Securities or to exercise any voting rights,
except to the extent expressly set forth in this Agreement or the applicable Warrant Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like number of Warrant Securities. Upon the issuance
of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to this Section
3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation of the Company,
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled
to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the holder of any Warrant Securities or the holder of any other
Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such holder’s
right to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided in such holder’s
Warrant Certificate and in this Agreement.
3.4
Adjustments.
(a) In case the
Company shall at any time subdivide its outstanding shares of [title of Preferred Stock purchasable through exercise of Warrants]
into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced
and the number of Warrant Securities purchasable under the Warrants shall be proportionately increased. Conversely, in case the
outstanding shares of [title of Preferred Stock purchasable through exercise of Warrants] shall be combined into a smaller number
of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased and the number
of Warrant Securities purchasable under the Warrants shall be proportionately decreased.
(b) If at any
time or from time to time the holders of [title of Preferred Stock purchasable through exercise of Warrants] (or any shares of
stock or other securities at the time receivable upon the exercise of the Warrants) shall have received or become entitled to receive,
without payment therefore,
(i) [title of Preferred Stock purchasable
through exercise of Warrants] or any shares of stock or other securities which are at any time directly or indirectly convertible
into or exchangeable for [title of Preferred Stock purchasable through exercise of Warrants], or any rights or options to subscribe
for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution;
(ii) any cash paid or payable otherwise
than in accordance with the terms of [title of Preferred Stock purchasable through exercise of Warrants] or as a cash dividend
paid or payable out of the Company’s current or retained earnings;
(iii) any evidence of the Company’s
indebtedness or rights to subscribe for or purchase the Company’s indebtedness; or
(iv) [title
of Preferred Stock purchasable through exercise of Warrants] or additional stock or other securities or property (including cash)
by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of [title
of Preferred Stock purchasable through exercise of Warrants] issued as a stock split or adjustments in respect of which shall be
covered by the terms of Section 3.4(a) above), then and in each such case, the holder of each Warrant shall, upon the exercise
of the Warrant, be entitled to receive, in addition to the number of Warrant Securities receivable thereupon, and without payment
of any additional consideration therefore, the amount of stock and other securities and property (including cash and indebtedness
or rights to subscribe for or purchase indebtedness) which such holder would hold on the date of such exercise had such holder
been the holder of record of such Warrant Securities as of the date on which holders of [title of Preferred Stock purchasable through
exercise of Warrants] received or became entitled to receive such shares or all other additional stock and other securities and
property.
(c) In case of
(i) any reclassification, capital reorganization, or change in the [title of Preferred Stock purchasable through exercise of Warrants]
of the Company (other than as a result of a subdivision, combination, or stock dividend provided for in Section 3.4(a) or Section
3.4(b) above), (ii) share exchange, merger or similar transaction of the Company with or into another person or entity (other than
a share exchange, merger or similar transaction in which the Company is the acquiring or surviving corporation and which does not
result in any change in the [title of Preferred Stock purchasable through exercise of Warrants] other than the issuance of additional
shares of [title of Preferred Stock purchasable through exercise of Warrants]) or (iii) the sale, exchange, lease, transfer or
other disposition of all or substantially all of the properties and assets of the Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the expiration of the Warrants to purchase, at a total price equal to that
payable upon the exercise of the Warrants, the kind and amount of shares of stock and other securities and property receivable
in connection with such Reorganization Event by a holder of the same number of shares of [title of Preferred Stock purchasable
through exercise of Warrants] as were purchasable by the holders of the Warrants immediately prior to such Reorganization Event.
In any such case appropriate provisions shall be made with respect to the rights and interests of the holders of the Warrants so
that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities and property
deliverable upon exercise the Warrants, and appropriate adjustments shall be made to the Warrant Price payable hereunder provided
the aggregate purchase price shall remain the same. In the case of any transaction described in clauses (ii) and (iii) above, the
Company shall thereupon be relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon
may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may execute and deliver securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of the Warrants. All the Warrants so issued shall in
all respects have the same legal rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in accordance
with the terms of this Agreement as though all of such Warrants had been issued at the date of the execution hereof. In any case
of any such Reorganization Event, such changes in phraseology and form (but not in substance) may be made in the Warrants thereafter
to be issued as may be appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that
any such Reorganization Event complies with the provisions of this Section 3.4.
(d) The Company
may, at its option, at any time until the Expiration Date, reduce the then current Warrant Price to any amount deemed appropriate
by the Board of Directors of the Company for any period not exceeding twenty consecutive days (as evidenced in a resolution adopted
by such Board of Directors), but only upon giving the notices required by Section 3.5 at least ten days prior to taking such action.
(e) Except as
herein otherwise expressly provided, no adjustment in the Warrant Price shall be made by reason of the issuance of any securities
of the Company or for any other reason whatsoever.
(f) No fractional
Warrant Securities shall be issued upon the exercise of Warrants. If more than one Warrant shall be exercised at one time by the
same holder, the number of full Warrant Securities which shall be issuable upon such exercise shall be computed on the basis of
the aggregate number of Warrant Securities purchased pursuant to the Warrants so exercised. Instead of any fractional Warrant Security
which would otherwise be issuable upon exercise of any Warrant, the Company shall pay a cash adjustment in respect of such fraction
in an amount equal to the same fraction of the last reported sale price (or bid price if there were no sales) per Warrant Security,
in either case as reported on the principal registered national securities exchange on which the Warrant Securities are listed
or admitted to trading on the business day that next precedes the day of exercise or, if the Warrant Securities are not then listed
or admitted to trading on any registered national securities exchange, the average of the closing high bid and low asked prices
as reported on the OTC Bulletin Board Service (the “OTC Bulletin Board”) operated by the Financial Industry
Regulatory Authority, Inc. (“FINRA”) or, if not available on the OTC Bulletin Board, then the average
of the closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system on
such date, or if on any such date the Warrant Securities are not listed or admitted to trading on a registered national securities
exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S. quotation medium or inter-dealer quotation
system, an amount equal to the same fraction of the average of the closing bid and asked prices as furnished by any FINRA member
firm selected from time to time by the Company for that purpose at the close of business on the business day that next precedes
the day of exercise.
(g) Whenever the
Warrant Price then in effect is adjusted as herein provided, the Company shall mail to each holder of the Warrants at such holder’s
address as it shall appear on the books of the Company a statement setting forth the adjusted Warrant Price then and thereafter
effective under the provisions hereof, together with the facts, in reasonable detail, upon which such adjustment is based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant Price, as adjusted in accordance with the terms hereof, be less
than the par value per share of [title of Preferred Stock purchasable through exercise of Warrants].
3.5 Notice
to Warrant Holders. In case the Company shall (a) effect any dividend or distribution described in Section 3.4(b), (b)
effect any Reorganization Event, (c) make any distribution on or in respect of the [title of Preferred Stock purchasable through
exercise of Warrants] in connection with the dissolution, liquidation or winding up of the Company, or (d) reduce the then current
Warrant Price pursuant to Section 3.4(d), then the Company shall mail to each holder of Warrants at such holder’s address
as it shall appear on the books of the Warrant Agent, at least ten days prior to the applicable date hereinafter specified, a notice
stating (x) the record date for such dividend or distribution, or, if a record is not to be taken, the date as of which the holders
of record of [title of Preferred Stock purchasable through exercise of Warrants] that will be entitled to such dividend or distribution
are to be determined, (y) the date on which such Reorganization Event, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of [title of Preferred Stock purchasable through exercise of Warrants]
of record shall be entitled to exchange their shares of [title of Preferred Stock purchasable through exercise of Warrants] for
securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up, or (z) the first
date on which the then current Warrant Price shall be reduced pursuant to Section 3.4(d). No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such transaction or any adjustment in the Warrant Price required by Section
3.4.
3.6 [If
the Warrants are subject to acceleration by the Company - Acceleration of Warrants by the Company.
(a) At any time
on or after [●], the Company shall have the right to accelerate any or all Warrants at any time by causing them to expire
at the close of business on the day next preceding a specified date (the “Acceleration Date”), if the
Market Price (as hereinafter defined) of the [title of Preferred Stock purchasable through exercise of Warrants] equals or exceeds
[●] percent ([●]%) of the then effective Warrant Price on any twenty Trading Days (as hereinafter defined) within a
period of thirty consecutive Trading Days ending no more than five Trading Days prior to the date on which the Company gives notice
to the Warrant Agent of its election to accelerate the Warrants.
(b) “Market
Price” for each Trading Day shall be, if the [title of Preferred Stock purchasable through exercise of Warrants]
is listed or admitted to trading on any registered national securities exchange, the last reported sale price, regular way (or,
if no such price is reported, the average of the reported closing bid and asked prices, regular way) of [title of Preferred Stock
purchasable through exercise of Warrants], in either case as reported on the principal registered national securities exchange
on which the [title of Preferred Stock purchasable through exercise of Warrants] is listed or admitted to trading or, if not listed
or admitted to trading on any registered national securities exchange, the average of the closing high bid and low asked prices
as reported on the OTC Bulletin Board operated by FINRA, or if not available on the OTC Bulletin Board, then the average of the
closing high bid and low asked prices as reported on any other U.S. quotation medium or inter-dealer quotation system, or if on
any such date the shares of [title of Preferred Stock purchasable through exercise of Warrants] are not listed or admitted to trading
on a registered national securities exchange, are not included in the OTC Bulletin Board, and are not quoted on any other U.S.
quotation medium or inter-dealer quotation system, the average of the closing bid and asked prices as furnished by any FINRA member
firm selected from time to time by the Company for that purpose. “Trading Day” shall be each Monday through Friday,
other than any day on which securities are not traded in the system or on the exchange that is the principal market for the [title
of Preferred Stock purchasable through exercise of Warrants], as determined by the Board of Directors of the Company. In the event
of an acceleration of less than all of the Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot, pro
rata or in such other manner as it deems, in its discretion, to be fair and appropriate.
(c) Notice of
an acceleration specifying the Acceleration Date shall be sent by mail first class, postage prepaid, to each registered holder
of a Warrant Certificate representing a Warrant accelerated at such holder’s address appearing on the books of the Warrant
Agent not more than sixty days nor less than thirty days before the Acceleration Date. Such notice of an acceleration also shall
be given no more than twenty days, and no less than ten days, prior to the mailing of notice to registered holders of Warrants
pursuant to this Section 3.6, by publication at least once in a newspaper of general circulation in the City of New York.
(d) Any Warrant
accelerated may be exercised until [●] p.m., [City] time, on the business day next preceding the Acceleration Date. The Warrant
Price shall be payable as provided in Section 2.]
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate number
of Warrant Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and exchanges
and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office for exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments of registration
of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with any such exchange
or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or registration of transfer, an
authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate evidencing
a Warrant for a fraction of a Warrant Security or a number of Warrants for a whole number of Warrant Securities and a fraction
of a Warrant Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant Certificates shall
be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under this Agreement
as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates
in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed
by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders
from time to time of the Warrant Certificates shall be subject:
(a) Compensation and
Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent for the
Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The
Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The
Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions.
The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant Securities or other obligations of the Company as freely as if
it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee under any indenture to which the Company is a party.
(f) No Liability for
Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for
Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No Responsibility
for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations.
The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated
by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt
of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The Company
agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant
Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the
date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In case at
any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any
other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession
by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or order for relief
by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any successor
Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting
such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive,
all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation
into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making
any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided that such action shall not materially adversely affect the interests of the holders of the
Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall
promptly forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Ocuphire
Pharma, Inc., 37000 Grand River Avenue, Suite 120, Farmington Hills, Michigan 48335, Attention: [●] (or such other
address as shall be specified in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with
the laws of the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements
of the Securities Act of 1933, as amended, relating to the Warrant Securities deliverable upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery of the Warrant Securities issued upon such exercise,
a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume any responsibility for the accuracy or adequacy
of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under
United States Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant
Securities under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Securities issued upon exercise of the Warrants, the issuance, sale, transfer and delivery
of the Warrants or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder
to submit such holder’s Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first
above written.
| |
Ocuphire Pharma, Inc., as the Company |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
COUNTERSIGNED |
| |
|
|
| |
[●], as the Warrant Agent |
| |
|
|
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[SIGNATURE PAGE TO OCUPHIRE PHARMA, INC.
DEBT SECURITIES WARRANT
AGREEMENT]
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
|
[Form of Legend if Warrants are not immediately
exercisable.]
|
[Prior to [●], Warrants evidenced by this
Warrant Certificate cannot be exercised.]
|
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS
PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time,
ON [●].
OCUPHIRE PHARMA, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT SECURITIES]
This certifies that
[●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time,
on [●], [●] shares of [TITLE OF WARRANT SECURITIES], par value $0.0001 per share (the “Warrant Securities”),
of Ocuphire Pharma, Inc., a Delaware corporation (the “Company”)
on the following basis: during the period from [●], through and including [●], the exercise price per Warrant Security
will be $[●], subject to adjustment as provided in the Warrant Agreement (as hereinafter defined) (the “Warrant
Price”). The Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the
back hereof and by paying in full, in lawful money of the United States of America, [in cash or by certified check or official
bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds], the Warrant Price for each
Warrant Security with respect to which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering
this Warrant Certificate, with the purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant
Agent], or its successor as warrant agent (the “Warrant Agent”), which is, on the date hereof, at the
address specified on the reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced
by this Warrant Certificate may be exercised to purchase a whole number of Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate number of Warrant
Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the Warrant Securities (except to the extent set forth
in the Warrant Agreement) or to exercise any voting rights.
Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
Dated: _______________
| Ocuphire Pharma, Inc., as the Company |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| |
|
|
| COUNTERSIGNED |
|
| |
|
|
| [●], as Warrant Agent |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States of
America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby
irrevocably elects to exercise _______ Warrants, evidenced by this Warrant Certificate, to purchase _______ shares of the [TITLE
OF WARRANT SECURITIES], par value $0.0001 per share (the “Warrant Securities”), of Ocuphire Pharma, Inc.
and represents that the undersigned has tendered payment for such Warrant Securities, in lawful money of the United States of America,
[in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available
funds], to the order of Ocuphire Pharma, Inc., c/o [insert name and address of Warrant Agent], in the amount of $_______ in accordance
with the terms hereof. The undersigned requests that said Warrant Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing
the Warrants for the number of Warrant Securities remaining unexercised be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
| |
|
|
|
|
| Dated: |
|
|
Name: |
|
| |
|
|
|
Please Print |
| Address: |
|
| |
|
|
(Insert Social Security or Other Identifying
Number of Holder)
|
|
| Signature Guaranteed: |
|
|
| |
Signature |
|
(Signature must conform in all respects
to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses: By hand at:
[●]
By mail at:
[Instructions as to form and delivery
of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities remaining
unexercised - complete as appropriate.]
ASSIGNMENT
[Form of assignment
to be executed if Warrant Holder desires to transfer Warrant]
FOR VALUE RECEIVED, _________________
hereby sells, assigns and transfers unto:
| |
|
|
| (Please print name and address including zip code) |
|
Please print Social Security or other identifying number |
the right represented by the within Warrant
to purchase _____________ shares of [Title of Warrant Securities] of Ocuphire Pharma, Inc. to which the within Warrant relates
and appoints ___________ attorney to transfer such right on the books of the Warrant Agent with full power of substitution in
the premises.
(Signature must conform in all respects
to name of holder as specified on the face of the Warrant)
Exhibit 4.17
OCUPHIRE PHARMA, INC.
AND
___________, AS WARRANT AGENT
FORM OF DEBT SECURITIES
WARRANT AGREEMENT
DATED AS OF _________
OCUPHIRE PHARMA, INC. FORM OF DEBT SECURITIES
WARRANT
AGREEMENT
THIS DEBT SECURITIES
WARRANT AGREEMENT (this “Agreement”), dated as of [●], between Ocuphire
Pharma, Inc., a Delaware corporation (the “Company”), and [●], a [corporation]
[national banking association] organized and existing under the laws of [●] and having a corporate trust office in [●],
as warrant agent (the “Warrant Agent”).
Recitals
Whereas,
the Company has entered into an indenture dated as of [●] (the “Indenture”), with [●], as
trustee (such trustee, and any successors to such trustee, herein called the “Trustee”), providing for
the issuance from time to time of its debt securities, to be issued in one or more series as provided in the Indenture (the “Debt
Securities”);
Whereas,
the Company proposes to sell [If Warrants are sold with other securities - [title of such other securities
being offered] (the “Other Securities”) with] warrant certificates evidencing one or more warrants (the
“Warrants” or, individually, a “Warrant”) representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants] (the “Warrant Debt Securities”),
such warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant
Certificates”; and
Whereas,
the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance, registration, transfer, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, registered, transferred, exchanged, exercised and replaced.
Agreement
Now,
Therefore, in consideration of the premises and of the mutual agreements herein contained, the parties hereto
agree as follows:
ARTICLE 1
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants alone - Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Other Securities and Warrants - Warrant Certificates will be issued in connection with the issuance of the Other
Securities but shall be separately transferable and each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one Warrant Debt
Security. [If Other Securities and Warrants - Warrant Certificates will be issued with the Other Securities and each
Warrant Certificate will evidence [●] Warrants for each [$[●] principal amount] [[●] shares] of Other Securities
issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated the date of its
countersignature by the Warrant Agent and may have such letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrant Certificates shall be signed
on behalf of the Company by any of its present or future chief executive officers, presidents, senior vice presidents, vice presidents,
chief financial officers, chief legal officers, treasurers, assistant treasurers, controllers, assistant controllers, secretaries
or assistant secretaries under its corporate seal reproduced thereon. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate
shall be valid for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed
by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer
of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution
of this Agreement any such person was not such officer.
The term “holder”
or “holder of a Warrant Certificate” as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose.
1.3 Issuance
of Warrant Certificates. Warrant Certificates evidencing the right to purchase Warrant Debt Securities may be executed
by the Company and delivered to the Warrant Agent upon the execution of this Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign such Warrant Certificates
and shall deliver such Warrant Certificates to or upon the order of the Company.
ARTICLE 2
WARRANT PRICE, DURATION AND EXERCISE
OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of [●]% of the principal amount thereof [plus accrued amortization,
if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date
from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from the date of their initial issuance.] [The original issue discount ($[●] for each $1,000 principal amount
of Warrant Debt Securities) will be amortized at a [●]% annual rate, computed on a[n] [semi-] annual basis [using a 360-day
year consisting of twelve 30-day months].] Such purchase price for the Warrant Debt Securities is referred to in this Agreement
as the “Warrant Price.”
2.2 Duration
of Warrants. Each Warrant may be exercised in whole or in part at any time, as specified herein, on or after [the date
thereof] [●] and at or before [●] p.m., [City] time, on [●] or such later date as the Company may designate by
notice to the Warrant Agent and the holders of Warrant Certificates mailed to their addresses as set forth in the record books
of the Warrant Agent (the “Expiration Date”). Each Warrant not exercised at or before [●] p.m.,
[City] time, on the Expiration Date shall become void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant under this Agreement shall cease.
2.3 Exercise
of Warrants.
(a) During the
period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]
[by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Debt Securities purchasable
upon the exercise of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant
Price shall be effective to constitute the person so designated to be named as the holder of record of such Warrant Debt Securities
on such date, but shall be effective to constitute such person as the holder of record of such Warrant Debt Securities for all
purposes at the opening of business on the next succeeding day on which the transfer books for the Warrant Debt Securities purchasable
upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Debt Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books shall next
be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Debt Securities.
The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained
with it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received
of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant
Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Debt Securities with
respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise, (iii) delivery of
Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Debt Securities after such exercise,
and (iv) such other information as the Company or the Trustee shall reasonably require.
(c) As soon as
practicable after the exercise of any Warrant, the Company shall issue pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate evidencing such Warrant the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than
all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The Company
shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Debt Securities, and in the event that any such transfer is involved, the Company shall not
be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been
established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior to the
issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved,
out of its authorized but unissued Warrant Debt Securities, a number of shares sufficient to provide for the exercise of the Warrants.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF
WARRANT CERTIFICATES
3.1 No
Rights as Holder of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant Certificate or
Warrant evidenced thereby shall entitle the holder thereof to any of the rights of a holder of Warrant Debt Securities, including,
without limitation, the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants in the Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or mutilation of any Warrant Certificate and/or indemnity
reasonably satisfactory to the Warrant Agent and the Company and, in the case of mutilation, upon surrender of the mutilated Warrant
Certificate to the Warrant Agent for cancellation, then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate,
a new Warrant Certificate of the same tenor and evidencing Warrants for a like principal amount of Warrant Debt Securities. Upon
the issuance of any new Warrant Certificate under this Section 3.2, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant Certificate executed and delivered pursuant to
this Section 3.2 in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an additional contractual obligation
of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section 3.2 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
3.3 Holder
of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, , the Trustee, the holder of any Warrant Debt Securities or the
holder of any other Warrant Certificate, may, in such holder’s own behalf and for such holder’s own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect
of, such holder’s right to exercise the Warrants evidenced by such holder’s Warrant Certificate in the manner provided
in such holder’s Warrant Certificates and in this Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share exchange, merger or similar transaction of the Company with or into
another person or entity (other than a share exchange, merger or similar transaction in which the Company is the acquiring or surviving
corporation) or (b) the sale, exchange, lease, transfer or other disposition of all or substantially all of the properties and
assets of the Company as an entirety (in any such case, a “Reorganization Event”), then, as a condition
of such Reorganization Event, lawful provisions shall be made, and duly executed documents evidencing the same from the Company’s
successor shall be delivered to the holders of the Warrants, so that such successor shall succeed to and be substituted for the
Company, and assume all the Company’s obligations under, this Agreement and the Warrants. The Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor or assuming entity thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all of the Warrants issuable hereunder which heretofore
shall not have been signed by the Company, and may execute and deliver securities in its own name, in fulfillment of its obligations
to deliver Warrant Debt Securities upon exercise of the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the execution hereof. In any case of any such Reorganization
Event, such changes in phraseology and form (but not in substance) may be made in the Warrants thereafter to be issued as may be
appropriate. The Warrant Agent may receive a written opinion of legal counsel as conclusive evidence that any such Reorganization
Event complies with the provisions of this Section 3.4.
3.5 Notice
to Warrant Holders. In case the Company shall (a) effect any Reorganization Event or (b) make any distribution on or
in respect of the [title of Warrant Debt Securities] in connection with the dissolution, liquidation or winding up of the Company,
then the Company shall mail to each holder of Warrants at such holder’s address as it shall appear on the books of the Warrant
Agent, at least ten days prior to the applicable date hereinafter specified, a notice stating the date on which such Reorganization
Event, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders
of [title of Warrant Debt Securities] of record shall be entitled to exchange their shares of [title of Warrant Debt Securities]
for securities or other property deliverable upon such Reorganization Event, dissolution, liquidation or winding up. No failure
to mail such notice nor any defect therein or in the mailing thereof shall affect any such transaction.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at the corporate trust office of the Warrant Agent, Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in other denominations evidencing such Warrants or the transfer thereof
may be registered in whole or in part; provided that such other Warrant Certificates evidence Warrants for the same aggregate principal
amount of Warrant Debt Securities as the Warrant Certificates so surrendered. The Warrant Agent shall keep, at its corporate trust
office, books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office for exchange or registration of transfer, properly endorsed or accompanied by appropriate instruments
of registration of transfer and written instructions for transfer, all in form satisfactory to the Company and the Warrant Agent.
No service charge shall be made for any exchange or registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other governmental charge that may be imposed in connection with
any such exchange or registration of transfer. Whenever any Warrant Certificates are so surrendered for exchange or registration
of transfer, an authorized officer of the Warrant Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and executed by the Company, as so requested. The Warrant
Agent shall not be required to effect any exchange or registration of transfer which will result in the issuance of a Warrant Certificate
evidencing a Warrant for a fraction of a Warrant Debt Security or a number of Warrants for a whole number of Warrant Debt Securities
and a fraction of a Warrant Debt Security. All Warrant Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same obligations and entitled to the same benefits under
this Agreement as the Warrant Certificate surrendered for such exchange or registration of transfer.
4.2 Treatment
of Holders of Warrant Certificates. The Company, the Warrant Agent and all other persons may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
4.3 Cancellation
of Warrant Certificates. Any Warrant Certificate surrendered for exchange, registration of transfer or exercise of the
Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or otherwise dispose of canceled Warrant Certificates
in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed
by the terms and provisions hereof.
5.2 Conditions
of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the holders
from time to time of the Warrant Certificates shall be subject:
(a) Compensation and
Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent hereunder, including the reasonable costs and expenses
of defending against any claim of such liability.
(b) Agent for the
Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the holders of
Warrant Certificates or beneficial owners of Warrants.
(c) Counsel. The
Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The
Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions.
The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants,
with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely
as if it were not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed to prevent the Warrant Agent from acting
as trustee under any indenture to which the Company is a party, including, without limitation, as Trustee under the Indenture.
(f) No Liability for
Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for
Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent’s countersignature thereon).
(h) No Responsibility
for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations.
The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense
or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated
by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the
proceeds of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt
of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting the generality
of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except
as provided in Section 6.2 hereof, to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment of Successors.
(a) The Company
agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant
Agent may at any time resign as agent by giving written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date shall not be less than three months after the
date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.
(c) In case at
any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or under any
other applicable Federal or state bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession
by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Warrant Agent or its property
or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take corporate action in furtherance of any such action, or a decree or order for relief
by a court having jurisdiction in the premises shall have been entered in respect of the Warrant Agent in an involuntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant Agent or of its property
or affairs, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any successor
Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting
such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect
as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive,
all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation
into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or substantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making
any other provisions with respect to matters or questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided that such action shall not materially adversely affect the interests of the holders of the
Warrant Certificates.
6.2 Notices
and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall
promptly forward such notice or demand to the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to this Agreement shall be addressed to [●], Attention:
[●] and any communication from the Warrant Agent to the Company with respect to this Agreement shall be addressed to Ocuphire
Pharma, Inc., 37000 Grand River Avenue, Suite 120, Farmington Hills, Michigan 48335, Attention: [●] (or such other
address as shall be specified in writing by the Warrant Agent or by the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with
the laws of the State of New York.
6.5 Delivery
of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a prospectus meeting the requirements
of the Securities Act of 1933, as amended, relating to the Warrant Debt Securities deliverable upon exercise of the Warrants (the
“Prospectus”), and the Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant, prior to or concurrently with the delivery of the
Warrant Debt Securities issued upon such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume
any responsibility for the accuracy or adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals. The Company will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies and authorities and securities act filings under
United States Federal and state laws (including without limitation a registration statement in respect of the Warrants and Warrant
Debt Securities under the Securities Act of 1933, as amended), which may be or become requisite in connection with the issuance,
sale, transfer, and delivery of the Warrant Debt Securities issued upon exercise of the Warrants, the issuance, sale, transfer
and delivery of the Warrants or upon the expiration of the period during which the Warrants are exercisable.
6.7 Persons
Having Rights under the Agreement. Nothing in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
6.10 Inspection
of Agreement. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent may require such holder
to submit such holder’s Warrant Certificate for inspection by it.
In
Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first
above written.
| |
Ocuphire Pharma, Inc., as the Company |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
COUNTERSIGNED |
| |
|
|
| |
[●], as the Warrant Agent |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[SIGNATURE PAGE TO OCUPHIRE PHARMA, INC.
DEBT SECURITIES WARRANT
AGREEMENT]
Exhibit
A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
|
[Form of Legend if Warrants are not immediately
exercisable.]
|
[Prior to [●], Warrants evidenced by this
Warrant Certificate cannot be exercised.]
|
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS
PROVIDED HEREIN
VOID AFTER [●] P.M., [City] time,
ON [●].
OCUPHIRE PHARMA, INC.
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
This certifies that
[●] or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such
owner to purchase, at any time [after [●] p.m., [City] time, [on [●] and] on or before [●] p.m., [City] time,
on [●], $[●] principal amount of [TITLE OF WARRANT DEBT SECURITIES] (the “Warrant Debt Securities”),
of Ocuphire Pharma, Inc., a Delaware corporation (the “Company”)
issued or to be issued under the Indenture (as hereinafter defined), on the following basis: during the period from [●],
through and including [●], each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the warrant price (the “Warrant
Price”) of [●]% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount
of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid
on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from the date of their original
issuance]. [The original issue discount ($[●] for each $1,000 principal amount of Warrant Debt Securities) will be amortized
at a [●]% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day months]. The
Holder may exercise the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in
full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing
House funds] [by bank wire transfer in immediately available funds], the Warrant Price for each Warrant Debt Security with respect
to which this Warrant is exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust office of [name of Warrant Agent], or its successor
as warrant agent (the “Warrant Agent”), which is, on the date hereof, at the address specified on the
reverse hereof, and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term “Holder”
as used herein shall mean the person in whose name at the time this Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
The Warrants evidenced
by this Warrant Certificate may be exercised to purchase Warrant Debt Securities in the principal amount of $1,000 or any integral
multiple thereof in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate,
there shall be issued to the Holder hereof a new Warrant Certificate evidencing Warrants for the aggregate principal amount of
Warrant Debt Securities remaining unexercised.
This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of [●] (the “Warrant Agreement”),
between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement
are on file at the above-mentioned office of the Warrant Agent.
The Warrant Debt Securities
to be issued and delivered upon the exercise of Warrants evidenced by this Warrant Certificate will be issued under and in accordance
with an Indenture, dated as of [●] (the “Indenture”), between the Company and [●], as trustee
(such trustee, and any successors to such trustee, the “Trustee”)] and will be subject to the terms and
provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant
Debt Securities, are on file at the corporate trust office of the Trustee.
Transfer of this Warrant
Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by
the registered owner or such owner’s assigns, in the manner and subject to the limitations provided in the Warrant Agreement.
After countersignature
by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant Certificates representing Warrants for the same aggregate principal amount
of Warrant Debt Securities.
This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation,
the right to receive payments of principal of (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce
any of the covenants of the Indenture.
Reference is hereby
made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
In
Witness Whereof, the Company has caused this Warrant to be executed in its name and on its behalf by the facsimile signatures
of its duly authorized officers.
Dated: _______________
| Ocuphire Pharma, Inc., as the Company |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
| COUNTERSIGNED |
|
| |
|
|
| [●], as Warrant Agent |
|
| |
|
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To exercise any Warrants
evidenced hereby for Warrant Debt Securities (as hereinafter defined), the Holder must pay, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [●] [address of Warrant Agent], Attention: [●],
which payment must specify the name of the Holder and the number of Warrants exercised by such Holder. In addition, the Holder
must complete the information required below and present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth above. This Warrant Certificate, completed and duly
executed, must be received by the Warrant Agent within five business days of the payment.
(To be executed upon exercise of Warrants)
The undersigned hereby
irrevocably elects to exercise _________ Warrants, evidenced by this Warrant Certificate, to purchase _________ $[●] principal
amount of the [TITLE OF WARRANT DEBT SECURITIES] (the “Warrant Debt Securities”), of Ocuphire Pharma,
Inc. and represents that the undersigned has tendered payment for such Warrant Debt Securities, in lawful money of the United States
of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of Ocuphire Pharma, Inc., c/o [insert name and address of Warrant Agent], in the amount of $_________
in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in fully
registered form in the authorized denominations, registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants
exercised is less than all of the Warrants evidenced hereby, the undersigned requests that a new Warrant Certificate evidencing
the Warrants for the aggregate principal amount of Warrant Debt Securities remaining unexercised be issued and delivered to the
undersigned unless otherwise specified in the instructions below.
| Dated: |
|
|
Name: |
|
| |
|
|
|
Please Print |
| Address: |
|
| |
|
| (Insert Social Security or Other Identifying |
|
| Number of Holder) |
|
| Signature Guaranteed: |
|
|
| |
Signature |
|
(Signature must conform in all respects
to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a FINRA member firm).
This Warrant may be exercised at the following
addresses: By hand at:
[●]
By mail at:
[Instructions as to form and delivery
of Warrant Securities and, if applicable, Warrant Certificates evidencing Warrants for the number of Warrant Securities remaining
unexercised - complete as appropriate.]
ASSIGNMENT
[Form of assignment to be executed if Warrant
Holder desires to transfer Warrant] FOR VALUE RECEIVED, _________________ hereby sells, assigns and transfers unto:
| |
|
|
|
(Please print name and address including zip
code)
|
|
Please print Social Security or
other
identifying number
|
the right represented by the within Warrant
to purchase _____________ shares of [Title of Warrant Securities] of Ocuphire Pharma, Inc. to which the within Warrant relates
and appoints ___________ attorney to transfer such right on the books of the Warrant Agent with full power of substitution in the
premises.
(Signature must conform in all respects
to name of holder as specified on the face of the Warrant)
Exhibit 5.1
January 10, 2024
|
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, Michigan 48335
|
|
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Ocuphire Pharma, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-3
(the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”), for the registration of the Securities (defined below) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement includes three prospectuses: (i) a base prospectus (the “Base Prospectus”), covering the offering by the Company of up to $175,000,000 of its
common stock, preferred stock, debt securities and/or warrants to purchase any of such securities, that provides it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus Supplement”), (ii) a sales
agreement prospectus (together with the Base Prospectus, the “Sales Agreement Prospectus”), covering the offering, issuance and sale by the Company of up to $40,000,000 (which amount is included in the $175,000,000 aggregate offering price set
forth in the Base Prospectus) of its common stock, par value $0.0001 per share, (the “Sales Agreement Shares”) that may be sold and issued under that certain Capital on DemandTM Sales Agreement, dated March 11, 2021, by and between the Company and JonesTrading Institutional Services, LLC (the “Sales Agreement”), and (iii) a purchase agreement prospectus (together with the Base Prospectus, the
“Purchase Agreement Prospectus”), covering the offering, issuance and sale by the Company of up to $50,000,000 (which amount is included in the $175,000,000 aggregate offering price set forth in the Base Prospectus) of its common stock, par
value $0.0001 per share, (the “Purchase Agreement Shares”) that may be sold and issued under that certain Purchase Agreement, dated as of August 10, 2023, by and between the Company and Lincoln Park Capital Fund, LLC (the “Purchase
Agreement”). The Base Prospectus, as supplemented by one or more Prospectus Supplements, the Sales Agreement Prospectus and the Purchase Agreement Prospectus may cover the offer, issuance and sale of (i) shares of common stock, $0.0001 par
value per share, of the Company (the “Common Stock”); (ii) one or more series of shares of preferred stock, $0.0001 par value per share, of the Company (the “Preferred Stock”); (iii) one or more series of debt securities of the Company (the
“Debt Securities”); (iv) warrants to purchase Preferred Stock, Common Stock or Debt Securities (the “Warrants”) (v) the Sales Agreement Shares; and (vi) the Purchase Agreement Shares.
Any Debt Securities will be issued under one or more indentures in the form to be filed as an exhibit to the Registration Statement (the
“Indenture”) relating to the issuance of Debt Securities by the Company. The Warrants may be issued under one or more warrant agreements (each, a “Warrant Agreement”) between the Company and a third party to be identified therein as warrant
agent (each, a “Warrant Agent”). The Indenture and the Warrant Agreements are herein collectively referred to as the “Agreements.” The shares of Common Stock, shares of Preferred Stock, Debt Securities, Warrants, the Sales Agreement Shares,
and the Purchase Agreement Shares are herein collectively referred to as the “Securities.” The Securities are being registered for offer and sale from time to time pursuant to Rule 415 under the Securities Act.
In connection with this opinion letter, we have examined and relied upon originals or copies of such records, instruments, certificates, opinions,
memoranda and other documents as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to certain factual matters, we have relied upon a certificate of officers of the Company and have not
independently sought to verify such matters. In rendering the opinions in this opinion letter, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where
authorization, execution and delivery are prerequisites to the legal effectiveness of such documents.
With respect to our opinions as to the Common Stock to be offered and sold by the Company (other than the Sales Agreement Shares and the Purchase
Agreement Shares), we have assumed that, at the time of issuance and sale, 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 the conversion price for Preferred Stock or Debt Securities convertible into Common Stock or the exercise price for Warrants exercisable for Common Stock) is in an amount that is not less than the par value of the Common Stock. With
respect to our opinion as to the Preferred Stock to be offered and sold by the Company, we have assumed that, 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 the conversion price for Debt Securities convertible into Preferred Stock or the exercise price for Warrants exercisable for Preferred Stock) is in an
amount that is not less than the par value of the Preferred Stock. We have also assumed that any Debt Securities offered under the Registration Statement will be issued pursuant to the form of Indenture filed as an exhibit to the
Registration Statement or any required post-effective amendment thereto or incorporated by reference therein. We have also assumed that any Warrants offered under the Registration Statement, and any related Warrant Agreement, will be
executed in the forms filed as exhibits to the Registration Statement or any required post-effective amendment thereto or incorporated by reference therein. We have also assumed that (i) with respect to Securities being issued upon
conversion of any convertible Preferred Stock, the applicable convertible Preferred Stock will be duly authorized, validly issued, fully paid and non-assessable; and (ii) with respect to any Securities being issued upon conversion of any
convertible Debt Securities or upon exercise of any Warrants, the applicable convertible Debt Securities or Warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.
With respect to the Sales Agreement Shares, we have assumed (i) that each sale of the Sales Agreement Shares will be duly authorized by the Board
of Directors of the Company (the “Board”), a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General Corporation Law of the State of Delaware (the “DGCL”), (ii)
that no more than 4,901,961 Sales Agreement Shares will be sold under the Sales Agreement pursuant to the Sales Agreement Prospectus, and (iii) that the price at which the Sales Agreement. Shares are sold will equal or exceed the par value of
the Common Stock. We express no opinion to the extent that future issuances of securities of the Company, anti-dilution adjustments to outstanding securities of the Company and/or other matters cause the number of shares of Common Stock
issuable under the Sales Agreement to exceed the number of shares of Common Stock available for issuance by the Company.
With respect to the Purchase Agreement Shares, we have assumed (i) that each sale of the Purchase Agreement Shares will be duly authorized by the
Board, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the DGCL, (ii) that the Purchase Agreement Shares will be sold for a price per share equal to or greater
than the minimum price, authorized by the Board or a duly authorized committee thereof prior to the date of issuance, under the Purchase Agreement pursuant to the Purchase Agreement Prospectus, and (iii) that the price at which the Purchase
Agreement Shares are sold will equal or exceed the par value of the Common Stock. We express no opinion to the extent that future issuances of securities of the Company, anti-dilution adjustments to outstanding securities of the Company
and/or other matters cause the number of shares of Common Stock issuable under the Purchase Agreement to exceed the number of shares of Common Stock available for issuance by the Company.
With your consent, we have also assumed (i) that each of the Agreements, the Debt Securities and the Warrants (collectively,
the “Documents”) will be governed by the internal laws of the State of New York, (ii) that each of the Documents has been or will be duly authorized, executed and delivered by the parties thereto, (iii) that each of the Documents constitutes
or will constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms, and (iv) that the status of each of the Documents as legally
valid and binding obligations of the parties will not be affected by any (a) breaches of, or defaults under, agreements or instruments, (b) violations of statutes, rules, regulations or court or governmental orders, or (c) failures to obtain
required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
Our opinions herein are expressed solely with respect to (i) the internal laws of the State of New York; (ii) the DGCL, as amended; and (iii) the
federal laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to any matters of
municipal law or the laws of any local agencies within any state. Our opinions are based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter
hereof. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof. It is understood that this opinion letter is to be used only
in connection with the offer and sale of the Securities while the Registration Statement is in effect and only speaks as of the date of this opinion letter.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, it is our opinion that:
|
1.
|
With respect to the Common Stock offered by the Company under the Registration Statement (other than the Sales Agreement Shares and the Purchase Agreement
Shares), provided that (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by
applicable laws have been delivered and filed as required by such laws; (ii) the issuance of the Common Stock has been duly authorized by all necessary corporate action on the part of the Company; (iii) the issuance and sale of the
Common Stock do not violate any applicable law, are in conformity with the Company’s then operative certificate of incorporation (the “Certificate of Incorporation”) and bylaws (the “Bylaws”), do not result in a default under or
breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates, if
any, for the Common Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Common Stock, when issued and sold as
contemplated in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, or
upon conversion of any convertible Preferred Stock or convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and
non-assessable.
|
|
2.
|
With respect to the Preferred Stock offered by the Company under the Registration Statement, provided that (i) the Registration Statement and any required
post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws;
(ii) the terms and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company and any applicable amendment to the Company’s Certificate of Incorporation, including any
certificate of designation, fixing the terms of such Preferred Stock has been filed with the State of Delaware; (iii) the terms of the shares of the Preferred Stock and their issuance and sale do not violate any applicable law, are
in conformity with the Certificate of Incorporation and the Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company; and (iv) the certificates, if any, for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly
delivered to the purchasers thereof against payment therefor, then the Preferred Stock, when issued and sold as contemplated in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s) and in
accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Debt Securities in accordance with their terms, or upon exercise of any
Warrants in accordance with their terms, will be validly issued, fully paid and non-assessable.
|
|
3.
|
When (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus
and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws, (ii) all necessary corporate action has been taken by the Company to approve the creation, the terms and
the issuance of such Debt Securities and the consideration to be received therefor in accordance with the Indenture and the Indenture has been duly authorized by the Company and the trustee by all necessary corporate action and has
been executed and delivered by the Company and the trustee, (iii) the Indenture is qualified under the United States Trust Indenture Act of 1939, as amended, (iv) the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture and as described in the Registration Statement and any required post-effective amendment thereto, the related Base Prospectus and the applicable Prospectus Supplement(s), and by
such corporate action, do not violate any applicable law, do not result in a default under or breach of any agreement or instrument binding upon the Company, are in conformity with the Certificate of Incorporation and Bylaws of the
Company, and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (v) notes, certificates or other evidence of the Debt Securities have been duly executed,
issued and delivered by the Company and authenticated by the Trustee pursuant to the Indenture and delivered to the purchasers thereof against payment therefor in accordance with such corporate action and the Base Prospectus and
applicable Prospectus Supplement relating to the Registration Statement, and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, the Indenture or upon exercise of
any Warrant under any Warrant Agreement in accordance with their terms, as applicable, such Debt Securities will be binding obligations of the Company. For purposes of rendering the opinions set forth in this paragraph 3, we have
assumed that immediately prior to the issuance of any Debt Securities, the Indenture and any applicable supplemental indenture will be in full force and effect, with no unwaived Events of Default (as defined in the Indenture) or
breaches thereunder and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
|
|
4.
|
When (i) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus
and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws, (ii) all necessary corporate action has been taken by the Company to approve the creation, the terms and
the issuance of the Warrants and the underlying securities, the terms of the offering of the Warrants and related matters, including the consideration to be received therefor, if any, and for the underlying securities, and, if
applicable, to authorize the form, terms, execution and delivery of a Warrant Agreement or Warrant Agreements (including a form of certificate evidencing the Warrants, if applicable) relating to the Warrants, (iii) the Warrant
Agreement or Warrant Agreements, if applicable, relating to the Warrants have been duly authorized and validly executed and delivered by the Company and the Warrant Agent, if any, appointed by the Company, (iv) the Warrants have
been issued under a valid and legally binding Warrant Agreement, or Warrant Agreements, if applicable, relating to the Warrants that conforms to the description thereof provided in a Prospectus Supplement and any related offering
material and do not violate any applicable law, do not result in a default under or breach of any agreement or instrument binding upon the Company, are in conformity with the Certificate of Incorporation and Bylaws of the Company,
and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vi) the Warrants or certificates representing the Warrants have been duly executed, countersigned
and registered, if applicable, issued and delivered in accordance with the Base Prospectus and applicable Prospectus Supplement relating to the Registration Statement and in accordance with the appropriate Warrant Agreement, if any,
and any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, as applicable, and such corporate action, in exchange for payment of the consideration for such Warrants, if any, provided for
in such agreement, such Warrants will be binding obligations of the Company.
|
|
5.
|
The Sales Agreement Shares, when sold and issued against payment therefor in accordance with the Sales Agreements, the Registration Statement and the Sales
Agreement Prospectus, will be validly issued, fully paid and non-assessable.
|
|
6.
|
The Purchase Agreement Shares, when sold and issued against payment therefor in accordance with the Purchase Agreement, the Registration Statement and the
Purchase Agreement Prospectus, will be validly issued, fully paid and non-assessable.
|
In giving the opinions set forth above, with respect to each Security opined on in this opinion letter we have assumed that (i) at or prior to the
time of the delivery of such Security, the authorization of such Security will not have been modified or rescinded, and there will not have occurred any change in law affecting such Security, including its validity or enforceability and (ii)
none of the terms of any such Security to be established subsequent to the date hereof, nor the issuance and delivery of such Security nor the compliance by the Company, with the terms of such Security, will violate any applicable law or will
result in a violation of any provision of any instrument or agreement then binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company.
Our opinions set forth above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance, fraudulent transfer and voidable transaction laws), general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law and limitations regarding the
availability of indemnification and contribution where such indemnification or contribution may be limited by applicable law or the application of principles of public policy.
We express no opinion as to the validity, binding effect or enforceability of (i) provisions that relate to choice of law, forum selection or
submission to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum), (ii) waivers by the Company of any statutory or
constitutional rights, defenses or remedies, (iii) terms which excuse any person or entity from liability for, or require the Company to indemnify such person or entity against, such person’s or entity’s negligence or willful misconduct, (iv)
obligations to pay any prepayment premium, default interest rate, early termination fee, late charges, monetary penalties, make-whole premiums or other form of liquidated damages, if the payment of such premium, interest rate, fee, late
charge, monetary penalty, make-whole premium or damages may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment, default or termination, usury and other
interest-related restrictions, (v) provisions providing that the terms of agreement may not be waived or modified except in writing, (vi) the creation, validity, attachment, perfection, or priority of any lien or security interest, (vii)
advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (viii) provisions for exclusivity, election
or cumulation of rights or remedies, (ix) provisions authorizing or validating conclusive or discretionary determinations, (x) proxies, powers and trusts, (x) provisions prohibiting, restricting, or requiring consent to assignment or transfer
of any right or property, or (xi) the severability, if invalid, of provisions to the foregoing effect.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also hereby consent to the use of our name under
the heading “Legal Matters” in the Base Prospectus, Sales Agreement Prospectus and the Purchase Agreement Prospectus included in the Registration Statement. In giving such consents, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission under the Securities Act.
|
|
Very truly yours, |
|
|
|
|
|
|
|
|
|
|
|
Honigman LLP
|
|
PDT/JMH/RZK/EAAL/GSWA/JHC
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of
Ocuphire Pharma, Inc. for the registration of the offering to sell from time to time, in one or more series, common stock, preferred stock, debt securities and/or warrants to purchase common stock, preferred stock and/or debt securities and to
the incorporation by reference therein of our report dated March 30, 2023, with respect to the consolidated financial statements of Ocuphire Pharma, 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
Detroit, Michigan
January 10, 2024
Exhibit 107
Calculation of Filing Fee Table
FORM S-3
(Form Type)
Ocuphire Pharma, Inc.
(Exact Name of Registrant as Specified in its Charter)
Newly Registered and Carry Forward Securities
| |
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered (1)
|
Proposed Maximum Offering price
Per Unit
|
Maximum Aggregate Offering Price (2)
|
Fee Rate
|
Amount of Registration Fee
|
|
Fees to be Paid
|
Equity
|
Common Stock, par value $0.0001 per share
|
Rule 457(o)
|
|
|
|
|
|
| |
Equity
|
Warrants
|
Other (3)
|
-
|
-
|
|
|
|
| |
Equity
|
Common Stock, par value $0.0001 per share, issuable upon exercise of Series A/B Warrants
|
Rule 457(o)
|
|
|
|
|
|
| |
Equity
|
Preferred Stock, par value $0.0001 per share
|
Other (4)
|
|
|
|
|
|
| |
Debt
|
Debt Securities
|
|
|
|
|
|
|
| |
Unallocated (Universal) Shelf
|
|
|
|
|
$175,000,000
|
$147.60 per $1,000,000
|
$25,830
|
|
Total Offering Amounts
|
|
|
|
|
$175,000,000.00
|
|
$25,830.00
|
|
Total Fees Previously Paid
|
|
|
|
|
|
|
$0.00
|
|
Total Fee Offsets
|
|
|
|
|
|
|
$0.00
|
|
Net Fee Due
|
|
|
|
|
|
|
$25,830.00
|
|
(1)
|
These are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount
of securities and such indeterminate number of warrants to purchase common stock as shall have an aggregate initial offering price not to exceed $175,000,000. If any securities are issued at an original issue discount, then the principal
amount of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $175,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities
registered hereunder may be sold separately or in combination with other securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and preferred stock and amount of securities
as may be issued upon conversion of or exchange for preferred stock or securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any such securities. In addition, pursuant to
Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares
being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
|
(2)
|
Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rule 457(i) and Rule 457(o) under the
Securities Act of 1933 (the “Securities Act”).
|
|
(3)
|
No registration fee required pursuant to Rule 457(g).
|
|
(4)
|
No registration fee required pursuant to Rule 457(i).
|
Ocuphire Pharma (NASDAQ:OCUP)
Historical Stock Chart
From Apr 2024 to May 2024
Ocuphire Pharma (NASDAQ:OCUP)
Historical Stock Chart
From May 2023 to May 2024
