As
filed with the Securities and Exchange Commission on August 30, 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
CELCUITY
INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
82-2863566 |
| (State
or other jurisdiction |
|
(I.R.S.
Employer |
| of
incorporation or organization) |
|
Identification
Number) |
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Brian
F. Sullivan
Chief Executive Officer
16305 36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Brent
Eilefson
General
Counsel
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763)
392-0123 |
|
Liz
Dunshee
Jeffrey
Steinle
Fredrikson & Byron, P.A.
60 South Sixth Street, Suite 1500
Minneapolis,
Minnesota 55402
(612) 492-7000 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effectiveness of the 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 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 or until the Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
registration statement is a replacement registration statement being filed pursuant to Rule 415(a)(6) under the Securities Act of 1933,
as amended (the “Securities Act”), with respect to securities that remain unsold under the Registration Statement on Form
S-3 (File No. 333-261155), originally filed on November 17, 2021, and declared effective on November 26, 2021, which is due to expire
on November 26, 2024 (the “Prior Registration Statement”). Pursuant to Rule 415(a)(5)(ii) under the Securities Act, by filing
this registration statement on Form S-3 (the “Registration Statement”), the Company may issue and sell securities covered
by the Prior Registration Statement until the earlier of (i) the effective date of this Registration Statement and (ii) May 25, 2025,
which is 180 days after the third-year anniversary of the effective date of the Prior Registration Statement. Pursuant to Rule 415(a)(6)
under the Securities Act, the offering of securities under the Prior Registration Statement will be deemed terminated as of the effective
date of this registration statement.
Information
contained in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION DATED AUGUST 30, 2024
PROSPECTUS
CELCUITY
INC.
$400,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
The
securities covered by this prospectus may include shares of our common stock; shares of preferred stock; warrants to purchase shares
of our common stock, preferred stock and/or debt securities; debt securities consisting of debentures, notes or other evidences of indebtedness;
or units consisting of any combination of such securities. We may offer the securities from time to time in one or more series or issuances
directly to our stockholders or purchasers, or through agents, underwriters or dealers as designated from time to time.
This
prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific terms
of the securities offered in a supplement to this prospectus. Such a prospectus supplement may also add, update or change information
contained in this prospectus. This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable
prospectus supplement. We will sell these securities directly to our stockholders or to purchasers or through agents on our behalf or
through underwriters or dealers as designated from time to time. If any agents or underwriters are involved in the sale of any of these
securities, the applicable prospectus supplement will provide the names of the agents or underwriters and any applicable fees, commissions
or discounts.
Our
common stock is traded on The Nasdaq Capital Market under the symbol “CELC.” On August 28, 2024, the closing price
of our common stock was $16.59.
Investing
in our securities involves risks. See “Risk Factors” on page 6. You should carefully read this prospectus, the
documents incorporated herein, and the applicable prospectus supplement before making any investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
The
securities described in this prospectus are part of a registration statement that we filed with the Securities and Exchange Commission,
or the SEC, using a “shelf” registration process. Under this shelf registration process, we may offer to sell any combination
of the securities described in this prospectus in one or more offerings up to a total dollar amount of $400,000,000. This prospectus
provides you with a general description of the securities we may offer. Each time we sell securities under this shelf registration, we
will provide a prospectus supplement that will contain specific information about the terms of such offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You should read both this prospectus and any applicable prospectus
supplement, including all documents incorporated herein by reference, together with additional information described under “Where
You Can Find More Information” below.
We
have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus and any accompanying prospectus supplement. You must not rely upon any information or
representation not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement. This prospectus
and the accompanying prospectus supplement, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus and any accompanying prospectus supplement constitute
an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and any accompanying
prospectus supplement, if any, is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though
this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date.
Unless
the context otherwise requires, “CELC,” the “Company,” “we,” “us,” “our”
and similar names refer to Celcuity Inc.
OUR
COMPANY
Business
Overview
We
are a clinical-stage biotechnology company focused on the development of targeted therapies for the treatment of multiple solid tumor
indications. Our lead therapeutic candidate is gedatolisib, a potent, well-tolerated, small molecule reversible inhibitor, administered
intravenously, that selectively targets all Class I isoforms of phosphatidylinositol-3-kinase (PI3K) and the two mechanistic target of
rapamycin (mTOR) sub-complexes, mTORC1 and mTORC2. Gedatolisib’s mechanism of action and pharmacokinetic properties are highly
differentiated from other currently approved and investigational therapies that target PI3K or mTOR alone or together.
In
April 2021, we obtained exclusive global development and commercialization rights to gedatolisib under a license agreement with Pfizer,
Inc. We believe there is significant potential for gedatolisib to address breast and prostate cancer tumors, and it has the potential
to be used in other tumor types where the PAM pathway is either: i) driving tumorigenesis directly; ii) cooperating with other dysregulated
signaling pathways; or iii) a mechanism of resistance to other drug therapies.
In
2022, the Company began enrolling patients in VIKTORIA-1, a Phase 3 study evaluating gedatolisib and fulvestrant with and without Ibrance®
(palbociclib) as second line treatment for patients with HR+, HER2- advanced breast cancer. In early 2024, the Company began enrolling
patients in CELC-G-201, a Phase 1b/2 study evaluating gedatolisib combined with Nubeqa® (darolutamide) in patients with metastatic
castration resistant prostate cancer (mCRPC). In May 2024, the Company announced plans to initiate VIKTORIA-2, a Phase 3 trial evaluating
gedatolisib combined with fulvestrant plus a CDK 4/6 inhibitor as first-line treatment for patients with HR+, HER2- advanced breast cancer.
The first patient is expected to be enrolled in the second quarter of 2025. We expect gedatolisib to:
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Overcome
limitations of therapies that only inhibit a single Class I PI3K isoform or only one mTOR kinase complex. |
Gedatolisib
is a pan-class I isoform PI3K inhibitor with low nanomolar potency for the p110α, p110β, p110γ, and p110δ isoforms
and mTORC1 and mTORC2 complexes. Each PI3K isoform and mTOR complex is known to preferentially affect different signal transduction events
that involve tumor cell survival, depending upon the aberrations associated with the linked pathway. When a therapy only inhibits a single
Class I isoform (e.g., alpelisib, a PI3K-α inhibitor) or only one mTOR kinase complex (e.g., everolimus, an mTORC1 inhibitor),
numerous feedforward and feedback loops between the PI3K isoforms and mTOR complexes cross-activate the uninhibited sub-units. This,
in turn, induces compensatory resistance that can reduce the efficacy of isoform specific PI3K or single mTOR kinase complex inhibitors.
Inhibiting all four PI3K isoforms and both mTOR complexes, as gedatolisib does, thus prevents the confounding effect of isoform interaction
that may occur with isoform-specific PI3K inhibitors and the confounding interaction between PI3K isoforms and mTOR.
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Be
Better tolerated by patients than oral PI3K and mTOR drugs. |
Gedatolisib
is administered intravenously (IV) on a four-week cycle of three weeks-on, one week-off, in contrast to the orally administered pan-PI3K
or dual PI3K/mTOR inhibitors that are no longer being clinically developed. Oral pan-PI3K or PI3K/mTOR inhibitors have repeatably been
found to induce significant side effects that were not well tolerated by patients. This typically leads to a high proportion of patients
requiring dose reductions or treatment discontinuation. The challenging toxicity profile of these drug candidates ultimately played a
significant role in the decisions to halt their development, despite showing promising efficacy. By contrast, gedatolisib stabilizes
at lower concentration levels in plasma compared to orally administered PI3K inhibitors, resulting in less toxicity, while maintaining
concentrations sufficient to inhibit PI3K/mTOR signaling.
Isoform-specific
PI3K inhibitors administered orally were developed to reduce toxicities in patients. While the range of toxicities associated with isoform-specific
inhibitors is narrower than oral pan-PI3K or PI3K/mTOR inhibitors, administering them orally on a continuous basis still leads to challenging
toxicities. The experience with an FDA approved oral p110-α specific inhibitor, Piqray, illustrates the challenge. In its Phase
3 pivotal trial Piqray was found to induce a Grade 3 or 4 adverse event (AE) related to hyperglycemia in 39% of patients evaluated. In
addition, 26% of patients discontinued alpelisib due to treatment related adverse events. By contrast, in the 103-patient dose expansion
portion of the Phase 1b clinical trial with gedatolisib, only 7% of patients experienced Grade 3 or 4 hyperglycemia and less than 9%
discontinued treatment.
As
of June 30, 2024, 492 patients with solid tumors have received gedatolisib in eight completed clinical trials. Of the 492 patients, 129
were treated with gedatolisib as a single agent in three clinical trials. The remaining 363 patients received gedatolisib in combination
with other anti-cancer agents in five clinical trials. Additional patients received gedatolisib in combination with other anti-cancer
agents in nine investigator sponsored clinical trials.
A
Phase 1b trial (B2151009) evaluating patients with HR+/HER2- metastatic breast cancer was initiated in 2016 and subsequently enrolled
138 patients. Four patients from this study continue to receive study treatment, as of June 30, 2024, each of whom have received study
treatment for more than five years. The B2151009 clinical was an open label, multiple arm Phase 1b study that evaluated gedatolisib in
combination with palbociclib (CDK4/6 inhibitor) and fulvestrant or letrozole in patients with HR+/HER2- advanced breast cancer. Thirty-five
patients were enrolled in two dose escalation arms to evaluate the safety and tolerability and to determine the maximum tolerated dose
(MTD) of gedatolisib when used in combination with the standard doses of palbociclib and endocrine therapy (letrozole or fulvestrant).
The MTD was determined to be 180 mg administered intravenously once weekly. A total of 103 patients were subsequently enrolled in one
of four expansion arms (A, B, C, D).
High
objective overall response rates (ORR) were observed in all four expansion arms and were comparable in each arm for PIK3CA WT and PIK3CA
MT patients. As of the data cut-off date, March 16, 2023, for treatment- naïve patients in Escalation Arm A and Expansion Arm A
(n=41), median progression free survival (mPFS) was 48.6 months, median duration of response (mDOR) was 46.9 months, and ORR was 79%,
respectively. This data compares favorably to published data for current first-line standard-of-care treatments for patients with HR+,
HER2- advanced breast cancer. In patients who received prior hormonal therapy alone or in combination with a CDK4/6 inhibitor (Arms B,
C, and D), ORR (including unconfirmed partial responses) ranged from 36% to 77%. Each arm achieved its primary endpoint target, which
was reporting higher ORR in the study arm than ORR from either the PALOMA-2 (ORR=55%) study that evaluated palbociclib plus letrozole
for Arm A or the PALOMA-3 study (ORR=25%) that evaluated palbociclib plus fulvestrant for Arms B, C, and D. For all enrolled patients,
a clinical benefit rate (CBR) of ≥ 79% was observed. Median progression-free survival (PFS) was 12.9 months for patients who received
a prior CDK4/6 inhibitor and were treated in the study with the Phase 3 dosing schedule (Arm D).
Gedatolisib
combined with palbociclib and endocrine therapy demonstrated a favorable safety profile with manageable toxicity. The majority of treatment
emergent adverse events were Grade 1 and 2. The most frequently observed adverse events included stomatitis/mucosal inflammation, the
majority of which were Grade 1 and 2. The most common Grade 4 AEs were neutropenia and neutrophil count decrease, which were assessed
as related to treatment with palbociclib. No grade 5 events were reported in this study.
We
are currently enrolling patients in a Phase 3, open-label, randomized clinical trial (VIKTORIA-1) to evaluate the efficacy and safety
of two regimens in adults with HR+/HER2- advanced breast cancer whose disease has progressed after prior CDK4/6 therapy in combination
with an aromatase inhibitor: 1) gedatolisib in combination with palbociclib and fulvestrant; and 2) gedatolisib in combination with fulvestrant.
Approximately two hundred clinical sites in North America, Europe, South America, Asia, and Australia have been selected to participate
in the study. The first clinical site was activated in the third quarter of 2022, and the first patient was dosed in December 2022.
The
VIKTORIA-1 clinical trial will enable separate evaluation of subjects according to their PIK3CA status. Subjects who meet eligibility
criteria and are PIK3CA WT will be randomly assigned (1:1:1) to receive a regimen of either gedatolisib, palbociclib, and fulvestrant
(Arm A), gedatolisib and fulvestrant (Arm B), or fulvestrant (Arm C). Subjects who meet eligibility criteria and are PIK3CA MT will be
randomly assigned (3:3:1) to receive a regimen of either gedatolisib, palbociclib, and fulvestrant (Arm D) or alpelisib and fulvestrant
(Arm E), or gedatolisib and fulvestrant (Arm F). Enrollment of the PIK3CA wild-type cohort is more than 80% complete and expected to
reach the enrollment target during Q4 2024. The PIK3CA wild-type cohort represents approximately 60% of the total patients enrolled to
date in VIKTORIA-1. In light of this, we expect topline data for the PIK3CA WT cohort to shift to sometime between late Q4 2024 and Q1
2025.
We
received approval from the FDA in mid-2023 to proceed with the clinical development of gedatolisib in combination with Nubeqa® (darolutamide),
an approved androgen receptor inhibitor, for the treatment of patients with mCRPC. We have since initiated a Phase 1b/2 study (CELC-G-201)
that will enroll up to 54 participants with mCRPC who progressed after treatment with an androgen receptor inhibitor. We dosed our first
patient in this trial in February 2024.
In
the Phase 1b portion of the study, Celcuity expects that 36 participants will be randomly assigned to receive 600 mg darolutamide combined
with either 120 mg gedatolisib in Arm 1 or 180 mg gedatolisib in Arm 2. An additional 12 participants will then be enrolled in the Phase
2 portion of the study at the recommended phase 2 dose (RP2D) level to enable evaluation of 30 participants treated with the RP2D of
gedatolisib.
The
primary objectives of the Phase 1b portion of the trial include assessment of the safety and tolerability of gedatolisib in combination
with darolutamide and determination of the recommended Phase 2 dose of gedatolisib. The primary objective of the Phase 2 portion of the
trial is to assess the radiographic progression-free survival (rPFS) at six months of patients who received the RP2D.
The
Phase 3 VIKTORIA-2 clinical trial, an open-label, randomized study to evaluate the efficacy and safety of gedatolisib combined with fulvestrant
plus a CDK4/6 inhibitor in comparison to fulvestrant plus a CDK4/6 inhibitor as first-line treatment for patients with HR+/HER2- advanced
breast cancer who are endocrine therapy resistant, will be initiated in 2025. For the CDK4/6 inhibitor, investigators may choose either
ribociclib or palbociclib. The safety profile of gedatolisib combined with fulvestrant and palbociclib is well described, but the investigational
combination of gedatolisib with ribociclib has not yet been clinically tested. Therefore, a safety run-in of approximately 12-36 subjects
will evaluate the safety profile of gedatolisib combined with ribociclib and fulvestrant. The safety run-in will be completed, and gedatolisib’s
Phase 3 dose confirmed, before enrolling patients in the Phase 3 portion of the study.
For
the Phase 3 study, approximately 638 subjects who meet the eligibility criteria will be assigned to a cohort based on their PIK3CA mutation
status. After the investigator selects the CDK4/6 inhibitor for a subject, the subject will then be randomly assigned on a 1:1 basis
to either Arm A (gedatolisib, fulvestrant, and Investigator’s choice of ribociclib or palbociclib) or Arm B (fulvestrant and Investigator’s
choice of ribociclib or palbociclib).
The
clinical trial primary endpoints are progression free survival (PFS), per RECIST 1.1 criteria, as assessed by blinded independent central
review. The primary PFS endpoints will be evaluated separately in subjects who are PI3KCA wild type and PI3KCA mutant.
The
study’s design was reviewed and discussed with the U.S. Food and Drug Administration (FDA) during a Type C meeting. This global
trial is expected to enroll subjects at up to 200 clinical sites across North America, Europe, Latin America, and Asia. Celcuity expects
to enroll the first patient in the second quarter of 2025.
During
the quarter ended June 30, 2024, the Company raised $129.0 million in gross proceeds from equity and debt financings, which we expect
to provide sufficient cash to finance our operations and pay obligations when due through 2026.
Authorized
Share Increase
Our
Certificate of Incorporation currently authorizes the issuance of up to 65,000,000 shares of Common Stock and 2,500,000 shares of preferred
stock, $0.001 par value per share. As of August 9, 2024, 37,030,155 shares of our Common Stock were issued and outstanding and 20,754,742
shares of Common Stock were reserved for issuance upon the exercise of outstanding equity awards and other convertible securities. The
7,215,103 shares of Common Stock available for issuance (after taking into account the number of shares of Common Stock that are outstanding
and reserved) represent approximately 11.1% of the 65,000,000 shares of Common Stock authorized for issuance under our Certificate of
Incorporation.
As
disclosed in our Definitive Proxy Statement on Schedule 14A that we filed with the Securities and Exchange Commission on August 28, 2024,
which is incorporated herein by reference, we have asked our stockholders to approve an amendment to our Certificate of Incorporation
to increase the number of authorized shares of Common Stock from 65,000,000 shares to 95,000,000 shares at a Special Meeting of Stockholders
(the “Special Meeting”) to be held on October 7, 2024. Our ability to offer and sell the maximum number of securities offered
by this prospectus, based on a closing price of our Common Stock of $16.59 as of August 28, 2024, is conditioned upon receipt
of stockholder approval of this proposal and subsequent effectiveness of the proposed Certificate of Amendment to our Certificate of
Incorporation, a form of which is included with Exhibit 3.2 and incorporated herein by reference. If the holders of a majority of the
shares of Common Stock casting votes, either in person or by proxy, do not vote in favor of this proposal at the Special Meeting, we
may still offer and sell securities under this prospectus, but the number of such securities that may be offered and sold will be limited
by the number of authorized shares of Common Stock available for issuance under our Certificate of Incorporation. If this proposal is
approved by our stockholders at the Special Meeting, the amendment to our Certificate of Incorporation will become effective upon the
filing of a Certificate of Amendment to our Certificate of Incorporation with the Secretary of State of the State of Delaware.
Additional
Information
Our
principal executive office is located at 16305 36th Avenue North, Suite 100, Minneapolis, Minnesota. Our telephone number is (763) 392-0767,
and our website is www.celcuity.com. The information contained on or accessible through our website is not incorporated by reference
into, and should not be considered part of, this prospectus or the information incorporated herein by reference.
Implications
of Being a Smaller Reporting Company
We
are a “smaller reporting company” as defined in Rule 12b-2 promulgated under the Securities Exchange Act. We may remain 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 a smaller reporting company, we may rely on exemptions from certain disclosure requirements that are available
to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent years
of audited financial statements in our Annual Report on Form 10-K and smaller reporting companies have reduced disclosure obligations
regarding executive compensation.
We
have taken advantage of these reduced reporting requirements in this prospectus and the information incorporated herein by reference.
Accordingly, the information contained herein may be different from the information you receive from other public companies that are
not smaller reporting companies.
RISK
FACTORS
Investing
in our securities involves risk. You should consider the risks, uncertainties and assumptions discussed under the heading “Risk
Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed on March 27, 2024 with the Securities
and Exchange Commission (“SEC”), which is incorporated herein by reference, and may be amended, supplemented or superseded
from time to time by other reports we file with the SEC in the future. See “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference.” The risks and uncertainties we have described are not the only ones we face. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. If any of these risks
were to occur, our business, financial condition, and results of operations could be severely harmed. This could cause the trading price
of our common stock to decline, and you could lose all or part of your investment.
In
addition, any prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to
such an investment in us. Prior to making a decision about investing in our securities, you should carefully consider the specific factors
discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the other information
contained or incorporated by reference in such prospectus supplement or appearing or incorporated by reference in this prospectus.
FORWARD-LOOKING
STATEMENTS
This
prospectus, any prospectus supplement and the documents incorporated herein by reference contain forward-looking statements and information
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”, which are subject to the safe harbor created by those
sections. These forward-looking statements and information regarding us, our business prospects and our results of operations are subject
to certain risks and uncertainties that could cause our actual business, prospects and results of operations to differ materially from
those that may be anticipated by such forward-looking statements. Factors that could cause or contribute to such differences include,
but are not limited to, those described under “Risk Factors” herein and in our other filings with the SEC. You should not
place undue reliance on these forward-looking statements. You should assume that the information contained in or incorporated by reference
in this prospectus, and any prospectus supplement, is accurate only as of the date on the front cover of this prospectus, and any prospectus
supplement, or as of the date of the documents incorporated by reference herein or therein, as applicable. We expressly disclaim any
intent or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
You are urged to carefully review and consider the various disclosures made by us in this prospectus, any prospectus supplement and the
documents incorporated herein by reference and in our other reports filed with the SEC that advise interested parties of the risks and
uncertainties that may affect our business.
All
statements, other than statements of historical facts, contained in this prospectus, any prospectus supplement and the documents incorporated
herein by reference, including statements regarding our plans, objectives and expectations for our business, operations and financial
performance and condition, are forward-looking statements. In some cases, you can identify forward-looking statements by the following
words: “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,”
“intend,” “may,” “might,” “target,” “ongoing,” “plan,” “potential,”
“predict,” “project,” “should,” “will,” “would,” or the negative of these
terms or other comparable terminology, although not all forward-looking statements contain these words. Forward-looking statements involve
known and unknown risks, uncertainties and other factors that may cause our results, performance or achievements to be materially different
from the information expressed or implied by the forward-looking statements in this prospectus, any prospectus supplement and the documents
incorporated herein by reference. Additionally, our forward-looking statements do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments that we may make. Forward-looking statements may include, among other things, statements
relating to:
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our
clinical trial plans and the estimated timelines and costs for such trials; |
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our
plans to develop and commercialize our products, and our expectations about the market opportunity for gedatolisib tests, and our
ability to serve those markets; |
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our
expectations with respect to our competitive advantages, including the potential efficacy of gedatolisib in various patient types
alone or in combination with other treatments; |
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our
expectations regarding the timeline of patient enrollment and results from clinical trials, including our existing Phase 3 VIKTORIA-1
clinical trial and Phase 1b/2 study and clinical trial, as well as our planned Phase 3 VIKTORIA-2 clinical trial for gedatolisib; |
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our
expectations with respect to the development, validation, required approvals, costs and timelines of gedatolisib; |
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our
beliefs related to the potential benefits resulting from Breakthrough Therapy designation for gedatolisib; |
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our
beliefs about our ability to capitalize on the exclusive global development and commercialization rights obtained from our license
agreement with Pfizer with respect to gedatolisib; |
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our
plans with respect to research and development and related expenses for the foreseeable future; |
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our
beliefs with respect to the potential rate and degree of market acceptance, both in the United States and internationally, and clinical
utility of our therapeutics, diagnostic platform and tests; |
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our
intended business development activities, including collaborations with pharmaceutical companies; |
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our
expectations with respect to accessing our current debt facility or any other debt facility or other capital sources in the future; |
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our
beliefs regarding the adequacy of our cash on hand to fund our research and development expenses, capital expenditures, working capital,
sales and marketing expenses, and other general corporate expenses, as well as the increased costs associated with being a public
company; and |
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our
expectations regarding our ability to obtain and maintain intellectual property protection for our product candidates, including
our gedatolisib drug candidate and our CELsignia platform and tests. |
These
statements involve known and unknown risks, uncertainties and other factors that may cause our results or our industry’s actual
results, levels of activity, performance or achievements to be materially different from the information expressed or implied by these
forward-looking statements. Certain risks, uncertainties and other factors include, but are not limited to, our limited operating history;
our potential inability to develop, validate and commercialize gedatolisib on a timely basis or at all; the uncertainties and costs associated
with clinical studies and with developing and commercializing biopharmaceuticals; the complexity and difficulty of demonstrating the
safety and sufficient magnitude of benefit to support regulatory approval of gedatolisib and other products we may develop; challenges
we may face in developing and maintaining relationships with pharmaceutical company partners; the uncertainty regarding market acceptance
of our products and services by physicians, patients, third-party payors and others in the medical community; uncertainty with respect
to the size of market opportunities available to us; uncertainty regarding the pricing of drug products and molecular and other diagnostic
products and services that compete or may compete with us; uncertainty with insurance coverage and reimbursement for our products and
services; the potential impact of public health matters on our business and clinical study activities; difficulties we may face in managing
growth, such as hiring and retaining key personnel; changes in government regulations; costs to comply with evolving regulations; and
obtaining and maintaining intellectual property protection for our technology and time and expense associated with defending third-party
claims of intellectual property infringement, investigations or litigation threatened or initiated against us. See “Risk Factors”
beginning on page 6 of this prospectus for additional risks, uncertainties and other factors applicable to the Company.
In
addition, statements that “we believe” 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.
USE
OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered
by this prospectus for working capital and general corporate purposes. General corporate purposes may include working capital, capital
expenditures, research and development expenditures, clinical trial expenditures, expansion of business development activities (including
sales, marketing and reimbursement functions) and other general corporate purposes. We may also use a portion of our net proceeds to
acquire or invest in complementary products, technologies or businesses, although we have no present commitments to complete any such
transaction. Additional information on the use of net proceeds from the sale of securities covered by this prospectus may be set forth
in any prospectus supplement relating to the specific offering.
The
amounts and timing of our expenditures will depend on numerous factors, including the status, results and timing of our current and expected
clinical trials involving gedatolisib and other corporate developments. Accordingly, our management will have broad discretion over the
use of the net proceeds from the sale of any securities offered by us.
PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions,
block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, directly
to one or more purchasers, including our affiliates, or through a combination of any of these methods. We may distribute securities from
time to time in one or more transactions:
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at
a fixed price or prices, which may be changed; |
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at
market prices prevailing at the time of sale; |
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prices
related to the prevailing market prices; or |
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at
negotiated prices. |
We
may also sell securities covered by this prospectus in an “at the market offering” as defined in Rule 415 under the Securities
Act. Such at the market offerings, if any, may be conducted by underwriters acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of the securities, including, to the extent applicable:
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the
name or names of any underwriters, dealers or agents, if any; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
options under which underwriters may purchase additional securities from us; |
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any
delayed delivery arrangements; |
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
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any
public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
commissions paid to agents. |
If
underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us. Only underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement. The underwriters may resell the securities from time to time in one or more transactions,
including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities
(described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities
to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms
acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they
purchase any of them. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from
time to time. The prospectus supplement will include the names of the principal underwriters, the respective amount of securities underwritten,
the nature of the obligation of the underwriters to take the securities and the nature of any material relationship between an underwriter
and us.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may
then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement
will include the names of the dealers and the terms of the transaction.
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities
may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or
sale of the offered securities and will describe any commissions payable to the agent by us. Unless otherwise indicated in the prospectus
supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
If
the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions
to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery
on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The
applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
We
may provide underwriters, dealers and agents with indemnification against civil liabilities related to the offerings pursuant to this
prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters
may make with respect to these liabilities. Underwriters, agents and dealers may engage in transactions with, or perform services for,
us in the ordinary course of business.
Unless
the applicable prospectus supplement states otherwise, each series of securities offered by us will be a new issue and will have no established
trading market, other than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any series of offered
securities on an exchange. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid trading
market.
Any
underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104
under the Securities Exchange Act of 1934, as amended. Stabilizing transactions involve bids to purchase the underlying security in the
open market for the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases
of the securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate
member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions.
The underwriters may, if they commence these transactions, discontinue them at any time.
We,
the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short
sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold
or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked
to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities.
SECURITIES
WE MAY OFFER
This
prospectus contains summary descriptions the common stock, preferred stock, warrants, debt securities, and units that we may offer and
sell from time to time. These summary descriptions are not meant to be complete descriptions of each security. However, at the time of
an offering and sale, this prospectus together with the accompanying prospectus supplement will contain the material terms of the securities
being offered.
DESCRIPTION
OF CAPITAL STOCK
The
following summary of the terms of our capital stock is subject to and qualified in its entirety by reference to applicable Delaware law,
our certificate of incorporation, as amended, and bylaws, copies of which are filed as Exhibits 3.1 and 3.3, respectively, to the registration
statement of which this prospectus forms a part and are incorporated herein by reference. Please refer to “Where You Can Find More
Information” below for directions on obtaining these documents.
As
of August 30, 2024, our authorized capital consists of:
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65,000,000
shares of common stock, $0.001 par value per share; and |
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2,500,000
shares of preferred stock, $0.001 par value per share, of which 1,850,000 shares are designated as Series A Convertible Preferred
Stock (the “Series A Preferred Stock”). |
The
number of authorized shares of common stock may be increased or decreased (but not below the number of shares of common stock then outstanding)
by the affirmative vote of the holders of a majority of the shares of common stock casting votes at a properly convened meeting of Company
stockholders. Our Board of Directors has approved, subject to stockholder approval, an amendment to our Certificate of Incorporation
increasing the authorized number of shares of the Company’s Common Stock from 65,000,000 shares to 95,000,000 shares (the “Authorized
Share Amendment”). We expect to submit the Authorized Share Amendment to Company stockholders at a special meeting of stockholders
and, if the Authorized Share Amendment is approved by stockholders, we plan to effect the Authorized Share Amendment by filing a Certificate
of Amendment to our Certificate of Incorporation. We cannot guarantee that stockholders will approve the Authorized Share Amendment.
See the Definitive Proxy Statement on Schedule 14A filed by the Company on August 28, 2024, and the proposed Certificate of Amendment
to our Certificate of Incorporation included in Exhibit 3.2 to this registration statement, which are incorporated herein by reference.
Common
Stock
Voting
Rights
Each
holder of common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders.
Dividend
Rights
Holders
of our common stock are entitled to receive ratably any dividends that our board of directors may declare out of funds legally available
for that purpose.
Rights
and Preferences
Holders
of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions
applicable to our common stock.
Right
to Liquidation Distributions
Upon
our liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would be distributable
ratably among the holders of our common stock and any participating preferred stock outstanding at that time, subject to prior satisfaction
of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences, if any, on any outstanding
shares of preferred stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. The transfer agent and registrar’s
address is One State Street Plaza, 30th Floor, New York, NY 10004.
The
Nasdaq Capital Market
Our
common stock is listed for quotation on The Nasdaq Capital Market under the symbol “CELC.”
Preferred
Stock
Our
board of directors is authorized, without action by the stockholders, to designate and issue up to an aggregate of 2,500,000 shares of
preferred stock in one or more series. Our board of directors is authorized to designate the rights, preferences and privileges of the
shares of each series and any of its qualifications, limitations or restrictions. Our board of directors is able to authorize the issuance
of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common
stock. The issuance of preferred stock, while providing flexibility in connection with possible future financings and acquisitions and
other corporate purposes could, under certain circumstances, have the effect of restricting dividends on our common stock, diluting the
voting power of our common stock, impairing the liquidation rights of our common stock, or delaying, deferring or preventing a change
in control of the Company, which might harm the market price of our common stock. See also “Anti-Takeover Effect of Delaware Law
and Certain Charter and Bylaw Provisions” below.
On
May 16, 2022, in connection with a Securities Purchase Agreement, dated May 15, 2022, by and among the Company and the Investors named
therein, we filed a Certificate of Designations with the Secretary of State of the State of Delaware, designating 1,850,000 shares out
of the authorized but unissued shares of our preferred stock as Series A Preferred Stock.
If
we offer a specific class or series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the
prospectus supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the
SEC. The preferred stock offered by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights.
Transfer
Agent and Registrar
The
transfer agent and registrar for any series or class of preferred stock will be set forth in each applicable prospectus supplement.
Anti-Takeover
Effect of Delaware Law and Certain Charter and Bylaw Provisions
Our
certificate of incorporation, as amended, and bylaws contain provisions that could have the effect of discouraging potential acquisition
proposals or tender offers or delaying or preventing a change of control of our Company. A summary of these provisions is as follows:
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Board
of directors vacancies. Our bylaws authorize only our board of directors to fill vacant directorships, including newly created
seats. In addition, the number of directors constituting our board of directors will be permitted to be set only by a resolution
adopted by our board of directors. These provisions would prevent a stockholder from increasing the size of our board of directors
and then gaining control of our board of directors by filling the resulting vacancies with its own nominees. This makes it more difficult
to change the composition of our board of directors but promotes continuity of management. |
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Advance
notice requirements for stockholder proposals and director nominations. Our bylaws provide advance notice procedures for
stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors
at our annual meeting of stockholders. Our bylaws also specify certain requirements regarding the form and content of a stockholder’s
notice. These provisions might preclude our stockholders from bringing matters before our annual meeting of stockholders or from
making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. These provisions
may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate
of directors or otherwise attempting to obtain control of the Company. |
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No
cumulative voting. The Delaware General Corporation Law, or DGCL, provides that stockholders are not entitled to the right
to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our
certificate of incorporation, as amended, does not provide for cumulative voting. |
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Stockholder
action; special meetings of stockholders. Our certificate of incorporation, as amended, provides that our stockholders may
not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, a holder
controlling a majority of our capital stock would not be able to amend our bylaws or remove directors without holding a meeting of
our stockholders called in accordance with our bylaws. Further, our bylaws provide that special meetings of our stockholders may
be called only by a majority of our board of directors, the chairperson of our board of directors, or our Chief Executive Officer,
thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force
consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal
of directors. |
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Issuance
of undesignated preferred stock. As of August 30, 2024, we have 650,000 shares of undesignated preferred stock. Our
board of directors has the authority, without further action by the stockholders, to issue this preferred stock with rights and preferences,
including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares
of preferred stock would enable our board of directors to render more difficult or to discourage an attempt to obtain control of
us by means of a merger, tender offer, proxy contest or other means. |
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Amendment
of charter and bylaw provisions. The affirmative vote of stockholders representing at least two-thirds of the voting power
of all then-outstanding capital stock is required to amend, alter or repeal certain provisions of our certificate of incorporation,
as amended, including the provision noted above regarding stockholders not being able to act by written consent. A majority of our
board of directors has authority to adopt, amend or repeal provisions of our bylaws. Stockholders also have the authority to adopt,
amend or repeal provisions of our bylaws, but only with the affirmative vote of stockholders representing at least two-thirds of
the voting power of all then-outstanding capital stock. |
We
are subject to the provisions of Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a publicly held Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved
in a prescribed manner. For purposes of Section 203, a “business combination” includes a merger, asset sale or other transaction
resulting in a financial benefit to the interested stockholder, and an “interested stockholder” is a person who owns 15%
or more of the voting stock of a corporation, or any affiliate or associate of a corporation who, within three years prior, did own 15%
or more of the voting stock of that corporation.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with
other securities or separately, as described in each applicable prospectus supplement. Below is a description of certain general terms
and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the applicable warrant agreements
and the applicable prospectus supplement for the warrants.
The
applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the
specific designation and aggregate number of, and the price at which we will issue, the warrants; |
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the
currency or currency units in which the offering price, if any, and the exercise price are payable; |
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the
designation, amount and terms of the securities purchasable upon exercise of the warrants; |
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if
applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise
of the warrants; |
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if
applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise,
and a description of that class or series of our preferred stock; |
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if
applicable, the exercise price for our debt securities, the amount of our debt securities to be received upon exercise, and a description
of that series of debt securities; |
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the
date on which the right to exercise the warrants will begin and the date on which that right will expire or, if the warrants may
not be continuously exercised throughout that period, the specific date or dates on which the warrants may be exercised; |
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whether
the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security
included in that unit; |
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any
applicable material U.S. federal income tax consequences; |
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the
identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars
or other agents; |
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the
proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
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if
applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately
transferable; |
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if
applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
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information
with respect to book-entry procedures, if any; |
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the
anti-dilution provisions of the warrants, if any; |
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any
redemption or call provisions; |
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whether
the warrants are to be sold separately or with other securities as parts of units; and |
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or common
stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify
in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the
expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
A
holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration
of transfer and exercise them at the corporate office of the transfer agent or any other office indicated in the applicable prospectus
supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders
of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest
on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or
preferred stock are exercised, the holders of the warrants will not have any rights of holders of the underlying common stock or preferred
stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred
stock, if any.
Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
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 (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:
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title of the series of debt securities; |
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limit upon the aggregate principal amount that may be issued; |
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maturity date or dates; |
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form of the debt securities of the series; |
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applicability of any guarantees; |
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or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any
combination thereof, and the terms of any subordination; |
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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; |
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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; |
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right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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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; |
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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; |
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denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; |
| ● | any
and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities
and any other terms which may be advisable in connection with the marketing of debt securities
of that series; |
| ● | whether
the debt securities of the series shall be issued in whole or in part in the form of a global
security or securities; the terms and conditions, if any, upon which such global security
or securities may be exchanged in whole or in part for other individual securities; and the
depositary for such global security or securities; |
| ● | if
applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible
or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at our option or the holders’
option) conversion or exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or exchange; |
| ● | if
other than the full principal amount thereof, the portion of the principal amount of debt
securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof; |
| ● | additions
to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant; |
| ● | additions
to or changes in the events of default with respect to the securities and any change in the
right of the trustee or the holders to declare the principal, premium, if any, and interest,
if any, with respect to such securities to be due and payable; |
| ● | additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance; |
| ● | additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
| ● | additions
to or changes in the provisions relating to the modification of the indenture both with and
without the consent of holders of debt securities issued under the indenture; |
| ● | the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; |
| ● | whether
interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made; |
| ● | the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any, and principal amounts of the debt securities of the series to any holder
that is not a “United States person” for federal tax purposes; |
| ● | any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
| ● | any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt
securities, any other additions or changes in the provisions of the indenture, and any terms
that may be required by us or advisable under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer, or otherwise dispose of our assets as an
entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must
assume all of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
| ● | if
we fail to pay any installment of interest on any series of debt securities, as and when
the same 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.
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
f any series in any material respect; |
| ● | to
provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General”
to establish the form of any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the rights of the holders
of any series of debt securities; |
| ● | to
evidence and provide for the acceptance of appointment under the indenture by a successor
trustee; or |
| ● | to
comply with any requirements of the SEC in connection with the qualification of the 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
The
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 (the “DTC”), or another depositary named by us and identified in the applicable prospectus supplement with
respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms
relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
| ● | issue,
register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption
of any debt securities that may be selected for redemption and ending at the close of business
on the day of the mailing; or |
| ● | register
the transfer or exchange of 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 is applicable.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We
may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements
with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit
agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the general
features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that
contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an
exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we
file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If
we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without
limitation, the following, as applicable:
| |
● |
the
title of the series of units; |
| |
|
|
| |
● |
identification
and description of the separate constituent securities comprising the units; |
| |
|
|
| |
● |
the
price or prices at which the units will be issued; |
| |
|
|
| |
● |
the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
| |
|
|
| |
● |
a
discussion of certain United States federal income tax considerations applicable to the units; and |
| |
|
|
| |
● |
any
other terms of the units and their constituent securities. |
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form S-3 (the “Registration Statement,” which term shall encompass all
amendments, exhibits, annexes and schedules thereto and all documents incorporated by reference therein) pursuant to the Securities Act,
and the rules and regulations promulgated thereunder, with respect to the securities offered hereby. This prospectus, which constitutes
a part of the Registration Statement, does not contain all the information contained in the Registration Statement, parts of which are
omitted in accordance with the rules and regulations of the SEC. For further information with respect to us and the securities offered
hereby, reference is made to the Registration Statement.
We
are required to file annual and quarterly reports, special 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, including us, that file electronically
with the SEC. You may obtain documents that we file with the SEC at http://www.sec.gov. We also make these documents publicly available,
free of charge, on our website at www.celcuity.com as soon as reasonably practicable after filing such documents with the SEC. Please
note, however, that information on, or accessible through, our website is not, and should not be deemed to be, a part of this prospectus
and should not be relied upon in connection with making any investment decision with respect to the offered securities.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC allows us to “incorporate by reference” into this prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is considered to
be part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information
in this prospectus. We incorporate by reference into this prospectus the documents listed below and any future filings made by us with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until we close this offering, including all filings made after the
date of the initial registration statement and prior to the effectiveness of the registration statement. We hereby incorporate by reference
the following documents:
| |
● |
Our
Annual Report on Form 10-K for the year ended December 31, 2023, filed on March 27, 2024; |
| |
|
|
| |
● |
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024, filed on May 15, 2024 and August 14, 2024,
respectively; |
| |
|
|
| |
● |
Our
Current Reports on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed on March 29, 2024, May 13, 2024, May 30, 2024 and May 31, 2024; |
| |
|
|
| |
● |
Our
definitive Proxy Statements filed on March 28, 2024 and August 28, 2024; and |
| |
|
|
| |
● |
The
description of our common stock contained in our registration statement on Form 8-A filed September 15, 2017, under the Exchange
Act, as updated by the description of our common stock contained in Exhibit 4.2 to our Annual Report on Form 10-K for the year ended
December 31, 2023, including any amendment or report filed for the purpose of updating such description. |
Any
statement contained in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, will be
deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified will not
be deemed to constitute a part hereof, except as so modified, and any statement so superseded will not be deemed to constitute a part
hereof.
You
may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Celcuity
Inc.
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
Attention: Investor Relations
Phone: (763) 392-0123
Copies
of these filings are also available, without charge, through the “Investors” section of our website (www.celcuity.com) as
soon as reasonably practicable after they are filed electronically with the SEC. Please note, however,
that information on our website is not, and should not be deemed to be, a part of this prospectus.
LEGAL
MATTERS
Unless
otherwise specified in a prospectus supplement accompanying this prospectus, the validity of the issuance of the securities offered hereby
will be passed upon for us by Fredrikson & Byron, P.A., Minneapolis, Minnesota. Any underwriters or agents will also be advised about
legal matters by their own counsel, which will be named in the prospectus supplement.
EXPERTS
The
financial statements as of December 31, 2023 and December 31, 2022 and for the years ended December 31, 2023 and December 31, 2022, incorporated
by reference in this prospectus have been so incorporated in reliance on the report of Boulay PLLP, an independent registered public
accounting firm, incorporated by reference herein, given on the authority of said firm as experts in auditing and accounting.
PROSPECTUS
CELCUITY
INC.
$400,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
,
2024
We
have not authorized any dealer, salesperson or other person to give any information or represent anything not contained in this prospectus.
You must not rely on any unauthorized information. If anyone provides you with different or inconsistent information, you should not
rely on it. This prospectus does not offer to sell any shares in any jurisdiction where it is unlawful. Neither the delivery of this
prospectus, nor any sale made hereunder, shall create any implication that the information in this prospectus is correct after the date
hereof.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses in connection with the sale and distribution of the securities being registered. All
amounts shown are estimates, except the SEC registration fee. The registrant has agreed to pay these costs and expenses.
| Securities and Exchange Commission registration fee | |
$ | 49,862 | |
| FINRA corporate filing fees | |
| * | |
| Printing and engraving expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Accounting fees and expenses | |
| * | |
| Transfer Agent and Registrar fees | |
| * | |
| Miscellaneous | |
| * | |
| Total | |
$ | * | |
| * |
Estimated
expenses not presently known. The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable
in respect of any offering of securities. |
Item
15. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law, or DGCL, provides that a Delaware corporation, in its certificate of incorporation,
may limit the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of fiduciary
duties as a director or officer, except for liability for any:
| |
● |
breach
of the director’s or officer’s duty of loyalty to the corporation or its stockholders; |
| |
|
|
| |
● |
act
or omission not in good faith or which involve intentional misconduct or a knowing violation of law; |
| |
|
|
| |
● |
a
director for any unlawful payment of dividends or redemption of shares; |
| |
|
|
| |
● |
transaction
from which the director or officer derived an improper personal benefit; or |
| |
|
|
| |
● |
an
officer in any action by or in the right of the corporation. |
Section
145(a) of the DGCL provides, in general, that a Delaware 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 or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith
and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section
145(b) of the DGCL provides, in general, that a Delaware 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 obtain a judgment
in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such
action, so long as the person acted in good faith and in a manner the person reasonably believed was in or not opposed to the corporation’s
best interests, except that no indemnification shall be permitted without judicial approval if a court has determined that the person
is to be liable to the corporation with respect to such claim. Section 145(c) of the DGCL provides that, if a present or former director
or officer has been successful in defense of any action referred to in Sections 145(a) and (b) of the DGCL, the corporation must indemnify
such officer or director against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection
with such action.
Section
145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise against any liability asserted against and incurred by such person, in any
such capacity, or arising out of his or her status as such, whether or not the corporation could indemnify the person against such liability
under Section 145 of the DGCL.
Our
certificate of incorporation, as amended, and our bylaws provide for the limitation of liability and indemnification of our directors
and officers to the fullest extent permitted under the DGCL.
We
have also entered into separate indemnification agreements with our directors and officers in addition to the indemnification provided
for in our certificate of incorporation, as amended, and our bylaws. These indemnification agreements provide, among other things, that
we will indemnify our directors and officers for certain expenses, including damages, judgments, fines, penalties, settlements and costs
and attorneys’ fees and disbursements, incurred by a director or officer in any claim, action or proceeding arising in his or her
capacity as a director or officer of the Company or in connection with service at our request for another corporation or entity. The
indemnification agreements also provide for procedures that will apply in the event that a director or officer makes a claim for indemnification.
We
also maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against
liability for actions taken in their capacities as directors and officers.
Item
16. Exhibits.
The
following is a list of exhibits filed as part of this registration statement.
| Exhibit |
|
Description |
| 1.1
** |
|
Form
of Underwriting Agreement |
| 3.1 |
|
Certificate of Incorporation of the Company, as amended, including the Certificate of Designations of Preferences, Rights, and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K/A filed with the SEC on April 7, 2023). |
| 3.2
* |
|
Form of Certificate of Amendment to the Certificate of Incorporation of the Company, to be submitted for stockholder approval. |
| 3.3 |
|
Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 13, 2017). |
| 4.3 |
|
Specimen Certificate representing shares of common stock of Celcuity Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1/A filed with the SEC on September 12, 2017). |
| 4.4 |
|
Description of Registered Securities (incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 27, 2024). |
| 4.5
** |
|
Form
of Preferred Stock Certificate |
| 4.6
** |
|
Form
of Common Stock Warrant Agreement and Warrant Certificate |
| 4.7
** |
|
Form
of Preferred Stock Warrant Agreement and Warrant Certificate |
| 4.8
** |
|
Form
of Debt Securities Warrant Agreement and Warrant Certificate |
| 4.9
** |
|
Form
of Unit Agreement |
| 4.10
* |
|
Form of Indenture |
| 5.1
* |
|
Opinion of Fredrikson & Byron, P.A. relating to the Securities |
| 23.1
* |
|
Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1) |
| 23.2
* |
|
Consent of Boulay PLLP |
| 24.1
* |
|
Power of attorney (included on the signature page of this registration statement) |
| 25.1 |
|
Statement
of Eligibility of Trustee Under Debt Indenture (to be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of
1939) |
| 107
* |
|
Filing Fee Table |
| * |
Filed
herewith |
| ** |
To
be filed by amendment or incorporated by reference in connection with the offering of the securities. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided,
however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(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 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 statements or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the
registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(6)
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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(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 Securities Act of 1933 and is therefore
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed
by the final adjudication of such issue.
(j)
If and when applicable, the undersigned registrant, hereby undertakes to file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in Minneapolis, Minnesota, on August 30, 2024.
| |
CELCUITY
INC. |
| |
|
|
| |
By: |
/s/
Brian F. Sullivan |
| |
|
Brian
F. Sullivan |
| |
|
Chairman
and Chief Executive Officer
(Principal
Executive Officer) |
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Brian F. Sullivan, Vicky Hahne and Brent Eilefson, and each of them singly,
his or her true and lawful attorney-in-fact and agent 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 sign any and all amendments and supplements (including pre-effective and post-effective
amendments) to this Registration Statement on Form S-3 of Celcuity Inc., and any related Rule 462(b) registration statement or amendment
thereto and other instruments necessary or appropriate in connection therewith, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents
(and each of them acting singly) full power and authority to do all such things in his or her name and on his or her behalf in their
capacity as an officer and/or director to enable Celcuity Inc. to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or any
of them or their agents, substitutes or resubstitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities
and on the dates indicated:
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Brian F. Sullivan |
|
Chairman
and Chief Executive Officer (Principal Executive Officer) |
|
August
30, 2024 |
| Brian
F. Sullivan |
|
|
|
|
| |
|
|
|
|
| /s/
Vicky Hahne |
|
Chief
Financial Officer (Principal Financial and Accounting Officer) |
|
August
30, 2024 |
| Vicky
Hahne |
|
|
|
|
| |
|
|
|
|
| /s/
Lance G. Laing |
|
Chief
Science Officer, Vice President and Secretary, and Director |
|
August
30, 2024 |
| Lance
G. Laing |
|
|
|
|
| |
|
|
|
|
| /s/
Richard E. Buller |
|
Director |
|
August
30, 2024 |
| Richard
E. Buller |
|
|
|
|
| |
|
|
|
|
| /s/
David F. Dalvey |
|
Director |
|
August
30, 2024 |
| David
F. Dalvey |
|
|
|
|
| |
|
|
|
|
| /s/
Leo T. Furcht |
|
Director |
|
August
30, 2024 |
| Leo
T. Furcht |
|
|
|
|
| |
|
|
|
|
| /s/
Richard J. Nigon |
|
Director |
|
August
30, 2024 |
| Richard
J. Nigon |
|
|
|
|
| |
|
|
|
|
| /s/
Polly Murphy |
|
Director |
|
August
30, 2024 |
| Polly
Murphy |
|
|
|
|
Exhibit
3.2
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
CELCUITY
INC.
Celcuity
Inc., a corporation organized and existing under and by the virtue of the Delaware General Corporation Law, as amended, through its duly
authorized officer and by the authority of its Board of Directors does hereby certify that:
FIRST:
The name of the corporation is Celcuity Inc. (the “Corporation”).
SECOND:
The Corporation’s certificate of incorporation was originally filed with the Delaware Secretary of State on September 15, 2017
and was amended on May 11, 2018, May 12, 2022 and September 1, 2022 (as amended, the “Certificate of Incorporation”).
THIRD:
This amendment to the Certificate of Incorporation has been duly authorized by the directors and the requisite stockholders of the
Corporation in accordance with the provisions of Sections 228 and 242 of the Delaware General Corporation Law.
FOURTH:
The Certificate of Incorporation is hereby amended by deleting the text of Section 4.1 of Article 4 in its entirety and replacing
such text with the following:
4.1
The aggregate number of shares the corporation has authority to issue is 97,500,000 shares, par value of $0.001 per share, consisting
of 95,000,000 shares of Common Stock and 2,500,000 shares of Preferred Stock, which includes 1,850,000 shares that have been designated
as Series A Convertible Preferred Stock and 650,000 shares of undesignated Preferred Stock. The Board of Directors of the Corporation
has the authority, without first obtaining approval of the stockholders of the corporation or any class thereof, to establish from the
undesignated shares of Preferred Stock, by resolution adopted and filed in the manner provided by law, one or more series of Preferred
Stock and to fix the number of shares, the voting powers, designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions of such class or series
[Signature
page follows]
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed on October __, 2024.
| |
CELCUITY
INC. |
| |
|
| |
By: |
|
| |
Name: |
Brian
F. Sullivan |
| |
Title: |
Chief
Executive Officer |
[Signature
page to the Certificate of Amendment of Certificate of Incorporation of Celcuity Inc.]
EXHIBIT
4.10
CELCUITY
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. |
7 |
| |
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 |
11 |
| |
Section
3.01. |
Redemption. |
11 |
| |
Section
3.02. |
Notice
of Redemption. |
12 |
| |
Section
3.03. |
Payment
Upon Redemption. |
12 |
| |
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. |
17 |
| |
Section
6.03. |
Application
of Moneys Collected. |
18 |
| |
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. |
24 |
| |
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. |
26 |
| |
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. |
29 |
| |
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. |
31 |
| |
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. |
33 |
| |
Section
13.07. |
Certificates
and Opinions as to Conditions Precedent. |
33 |
| |
Section
13.08. |
Payments
on Business Days. |
34 |
| |
Section
13.09. |
Conflict
with Trust Indenture Act. |
34 |
| |
Section
13.10. |
Counterparts. |
34 |
| |
Section
13.11. |
Separability. |
34 |
| |
Section
13.12. |
Compliance
Certificates. |
34 |
| |
Section
13.13. |
U.S.A.
Patriot Act. |
35 |
| |
Section
13.14. |
Force
Majeure. |
35 |
| |
Section
13.15. |
Table
of Contents; Headings. |
35 |
INDENTURE
INDENTURE,
dated as of [●], 20__, among Celcuity Inc., a Delaware corporation (the “Company”), and [TRUSTEE], as trustee
(the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
Article
1
DEFINITIONS
Section
1.01. Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such
certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Celcuity 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 Securityholder 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 ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due
upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered 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 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 Securityholders; 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 (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;
(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; and
(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 send such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be sent 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: Celcuity
Inc., 16305 36th Avenue North, Suite 100, Minneapolis, Minnesota 55446, Attn: [●]. 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. Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.12. Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance
under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any
such Event of Default and its status.
Section
13.13. U.S.A. Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section
13.14. Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this
Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section
13.15. Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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Celcuity
INC. |
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By: |
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Name: |
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Title: |
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[TRUSTEE],
as Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE
TABLE (1)
| Section
of Trust Indenture Act of 1939, as Amended |
|
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
5.1
August
30, 2024
Celcuity
Inc.
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
Re:
Celcuity Inc. Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to Celcuity Inc., a Delaware corporation (the “Company”), in connection with the Company’s Registration
Statement on Form S-3 (the “Registration Statement”) to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended (the “Act”), for the registration of the sale from time to time of (i) shares of common
stock, par value $0.001, of the Company (the “Common Stock”); (ii) shares of preferred stock of the Company (the “Preferred
Stock”); (iii) debt securities (the “Debt Securities”), which may be issued pursuant to an indenture to be entered
into between the Company and a trustee, as amended from time to time (the “Indenture”); (iv) warrants to purchase Common
Stock, Preferred Stock, Debt Securities and other securities or rights (the “Warrants”); and (v) units (the “Units”)
consisting of one or more shares of Common Stock, shares of Preferred Stock, Warrants, Debt Securities, or any combination of such securities
(collectively, the Common Stock, the Preferred Stock, the Debt Securities, the Warrants and the Units are referred to herein as the “Securities”).
We
have examined originals or copies, certified and otherwise identified to our satisfaction, of such documents, corporate records, certificates
of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion. In addition, as to
certain factual matters relevant to the opinions expressed below, we have relied upon representations, statements and certificates of
officers of the Company.
On
the basis of the foregoing and the other provisions set forth herein, we are of the opinion as of this date that:
1.
When the necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of shares of Common
Stock proposed to be sold by the Company, and when such shares of Common Stock are issued and delivered in accordance with the applicable
underwriting or other agreement against payment therefor (in excess of par value thereof) or upon conversion or exercise of any security
offered under the Registration Statement (the “Offered Security”), in accordance with terms of such Offered Security or the
instrument governing such Offered Security providing for such conversion or exercise as approved by the Board of Directors, for the consideration
approved by the Board of Directors (which consideration is not less than the par value of the Common Stock), such shares of Common Stock
will be validly issued, fully-paid and non-assessable.
2.
Upon proper designation of the relative rights, preferences and limitations of any series of Preferred Stock by the Board of Directors
of the Company and the proper filing with the Secretary of State of the State of Delaware of a Certificate of Designation relating to
such series of Preferred Stock, when the necessary corporate action on the part of the Company has been taken to authorize the issuance
and sale of such series of Preferred Stock proposed to be sold by the Company, and when such shares of Preferred Stock are issued and
delivered in accordance with the applicable underwriting or other agreement against payment therefor (in excess of par value thereof),
such shares of Preferred Stock will be validly issued, fully paid and non-assessable.
3.
When the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the Indenture
and such Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture and
the applicable underwriting or other agreement, such Debt Securities will constitute binding obligations of the Company.
4.
When the Warrants have been duly authorized and established by the Company, the applicable warrant agreement and the applicable warrant
certificates have been duly authorized, executed and delivered, and the Warrants have been duly issued and delivered by the Company,
the Warrants will constitute binding obligations of the Company.
5.
When the Units have been duly authorized and established by the Company, the necessary corporate action on the part of the Company has
been taken to authorize and execute and deliver or issue the securities underlying such Units, and the applicable Unit agreement has
been duly authorized, executed and delivered, the Units will constitute binding obligations of the Company.
We
have assumed, among other things, the genuineness of all signatures and authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as copies. In examining documents, we have assumed that parties,
other than the Company, have all necessary power to enter into and perform all of their obligations thereunder and have also assumed
the due authorization by all requisite action of the execution, delivery and performance of such documents by such parties, that such
documents are legal, valid, binding and enforceable obligations of such parties in accordance with their respective terms and that the
representations and warranties made in such documents by any parties are true and correct. We have also assumed that each natural person
executing any document relating to the matters covered by this opinion letter has the capacity and is legally competent to do so.
In
connection with the opinions expressed above, we have assumed that, at or prior to the time of the delivery of any such security, (i)
the Board of Directors shall have duly established the terms of such security and duly authorized the issuance and sale of such security
and such authorization shall not have been modified or rescinded; (ii) the Registration Statement shall be effective and such effectiveness
shall not have been terminated or rescinded; and (iii) there shall not have occurred any change in law affecting the validity, binding
nature or enforceability of such security. We have also assumed that none of the terms of any 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, or fail to comply with, any applicable law affecting the validity, binding nature or enforceability of such security, 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. We have further assumed that upon issuance of any Common Stock or Preferred
Stock, the total number of shares of Common Stock or Preferred Stock issued and outstanding will not exceed the total number of shares
of Common Stock or Preferred Stock, as applicable, that the Company is then authorized to issue under its Certificate of Incorporation
and other relevant documents.
Our
opinions expressed above are specifically subject to the following additional limitations, exceptions, qualifications and assumptions:
(A)
The legality, validity, binding nature and enforceability of the Company’s obligations under the Securities may be subject to or
limited by (1) bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer or conveyance, equitable subordination, moratorium
and other similar laws affecting the rights of creditors generally; (2) general principles of equity (whether relief is sought in a proceeding
at law or in equity), including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, commercial practice,
estoppel, diligence, unconscionability, right to cure, election of remedies, and the discretion of any court of competent jurisdiction
or of any arbiter in awarding specific performance or injunctive relief and other equitable remedies different from that provided in
the Securities; (3) the limitations or restrictions on a party’s ability to enforce contractual rights or bring a cause of action
under state law or within the courts of such state if such party has failed to comply with applicable qualification, authorization, registration,
notice or similar filing requirements of such state; and (4) without limiting the generality of the foregoing, (a) principles requiring
the consideration of the impracticability or impossibility of performance of the Company’s obligations at the time of the attempted
enforcement of such obligations, (b) the effect of court decisions and statutes that indicate that any provisions of the Securities that
permit a party to take action or make determinations may be subject to a requirement that such action be taken or such determinations
be made on a reasonable basis in good faith or that it be shown that such action is reasonably necessary for the party’s protection,
and (c) public policy considerations.
(B)
We express no opinion as to the enforceability of provisions (i) to the effect that rights or remedies may be exercised without notice
and failure or delay to exercise is not a waiver of rights or remedies, that every right or remedy is cumulative, not exclusive, and
may be exercised in addition to or with any other right or remedy, or that election of a particular remedy or remedies does not preclude
recourse to one or more remedies, (ii) prohibiting waivers of any terms of the Securities other than in writing, or prohibiting oral
modifications thereof or modification by course of dealing, or (iii) that may be unenforceable under certain circumstances but the inclusion
of which does not affect the validity of the Security taken as a whole. In addition, our opinions are subject to the effect of judicial
decisions that may permit the introduction of extrinsic evidence to interpret the terms of written contracts such as the Securities.
The
foregoing opinion is limited to the corporate laws of the states of Delaware and New York and the federal laws of the United States of
America.
We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the caption
“Legal Matters” in the prospectus. In giving such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Act.
| |
Very truly yours, |
| |
|
|
| |
FREDRIKSON & BYRON, P.A. |
| |
|
| |
|
/s/
Liz Dunshee |
| |
By: |
Liz
Dunshee |
| |
Its: |
Vice
President |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 27, 2024, with respect to the financial statements included in the Annual Report of Celcuity
Inc. on the Form 10-K for the year ended December 31, 2023. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ Boulay PLLP
Minneapolis, Minnesota
August 30, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
Celcuity
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | | |
Amount
Registered (1) | |
Proposed
Maximum
Offering
Price
Per Unit
(1) | |
Maximum
Aggregate
Offering Price
(1) | | |
Fee
Rate | | |
Amount of
Registration
Fee | | |
Carry
Forward
Form
Type | |
Carry
Forward
File
Number | |
Carry
Forward
Initial
effective
date | |
Filing Fee
Previously
Paid In Connection
with Unsold
Securities
to be
Carried
Forward | |
| |
| Newly Registered Securities | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| Fees to be Paid | |
Equity, Other Debt, Other Unallocated (Universal Shelf) | |
Common Stock, par value $0.001 per share, Preferred Stock, par value $0.001 per share, Warrants, Debt Securities, Units | |
| 457(o) | | |
| |
| |
$ | 337,817,950 | | |
$ | 0.00014760 | | |
$ | 49,861.93 | | |
| |
| |
| |
| | |
| Carry Forward Securities | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| Carry Forward Securities (2) | |
Equity, Other Debt, Other Unallocated (Universal Shelf) | |
Common Stock, par value $0.001 per share, Preferred Stock, par value $0.001 per share, Warrants, Debt Securities, Units | |
| 415(a)(6) | | |
| |
| |
$ | 62,182,050 | | |
| | | |
| | | |
S-3 | |
333-261155 | |
November 26, 2021 | |
$ | 5,764.28 | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| | |
Total Offering Amounts | |
| |
$ | 400,000,000 | | |
| | | |
$ | 55,626.21 | | |
| |
| |
| |
| | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| | |
Total Fees Previously Paid | |
| |
| | | |
| | | |
$ | 5,764.28 | | |
| |
| |
| |
| | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| | |
Total Fee Offsets | |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| | |
| |
| |
| | | |
| |
| |
| | | |
| | | |
| | | |
| |
| |
| |
| | |
| | |
Net Fee Due | |
| |
| | | |
| | | |
$ | 49,861.93 | | |
| |
| |
| |
| | |
| (1) |
The
securities registered by this registration statement may be sold separately, together with other securities registered or as units
consisting of a combination of securities registered hereunder. As permitted by Rule 457(o) under the Securities Act of 1933, as
amended, the number of securities of each class of securities registered hereunder is not specified. The registrant is registering
hereunder an indeterminate number of shares of common stock, shares of preferred stock, warrants to purchase shares of common stock,
warrants to purchase any of the other securities offered hereby, debt securities, and units comprised of any of the securities offered
hereby of the registrant as may from time to time be issued at indeterminate prices. The maximum offering price for each class of
securities will be determined from time to time by the registrant in connection with the issuance of the securities registered by
this registration statement. In no event, however, will the maximum aggregate offering price of all securities issued under this
registration statement exceed $400,000,000. Pursuant to Rule 416 under the Securities Act, this registration statement also registers
such indeterminate number of shares of common stock as may be issued from time to time upon conversion of, or exchange for, securities
registered hereunder or as a result of share splits, share capitalizations, or similar transactions. |
| |
|
| (2) |
Pursuant
to Rule 415(a)(6) under the Securities Act, securities with a maximum aggregate price of $62,182,050 registered hereunder are unsold
securities (the “Unsold Securities”) previously covered by the registrant’s registration statement on Form S-3
(No. 333-261155) filed by the registrant on November 17, 2021 (the “Prior Registration Statement”) and are included in
this registration statement. The registrant paid a filing fee of $5,764.28 (calculated at the filing fee rate in effect at the time
of the filing of the Prior Registration Statement) relating to the Unsold Securities under the Prior Registration Statement, and
no additional filing fee is due with respect to the Unsold Securities in connection with the filing of this registration statement.
During the grace period afforded by Rule 415(a)(5) under the Securities Act, the registrant may continue to offer and sell under
the Prior Registration Statement the Unsold Securities being registered hereunder. To the extent that, after the filing date hereof
and prior to the effectiveness of this registration statement, the registrant sells any Unsold Securities under the Prior Registration
Statement, the registrant will identify in a pre-effective amendment to this registration statement the updated number of Unsold
Securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the
updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6) under the Securities
Act, the offering of Unsold Securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness
of this registration statement. |
Celcuity (NASDAQ:CELC)
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