As filed with the Securities and Exchange Commission
on May 24, 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
CELLECTAR BIOSCIENCES, INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
|
04-3321804
(I.R.S. Employer
Identification No.) |
100 Campus Drive
Florham Park, New Jersey 07932
Tel: (608) 441-8120
(Address, including zip code, and telephone
number, including
area code, of Registrant’s principal executive offices)
James V. Caruso
President and Chief Executive Officer
100 Campus Drive
Florham Park, New Jersey 07932
Tel: (608) 441-8120
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
Copies to:
Asher M. Rubin, Esq.
Istvan A. Hajdu, Esq.
Kostian Ciko, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Telephone (212) 839-5300
Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 |
x |
Smaller reporting company |
x |
|
|
|
|
|
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
| · | a base prospectus which covers the offering, issuance and sale by the Registrant of up to a maximum aggregate
offering price of $300,000,000 of the Registrant’s common stock, preferred stock, debt securities, warrants, rights to purchase
common stock, Preferred Stock, Debt Securities or Units and units from time to time in one or more offerings; and |
| · | an equity distribution agreement prospectus covering the offering, issuance and sale by the Registrant
of up to a maximum aggregate offering price of $75,000,000 of shares of the Registrant’s common stock that may be offered, issued,
and sold from time to time under an equity distribution agreement, dated May 24, 2024, with Piper Sandler & Co. |
The base prospectus immediately follows this explanatory note. The
specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base
prospectus. The equity distribution agreement prospectus immediately follows the base prospectus. The $75,000,000 of common stock that
may be offered, issued, and sold by the Registrant under the equity distribution agreement prospectus is included in the $300,000,000
of securities that may be offered, issued, and sold by the Registrant under the base prospectus. Upon termination of the equity distribution
agreement with Piper Sandler & Co., any portion of the $75,000,000 included in the equity distribution agreement prospectus that is
not sold pursuant to such equity distribution agreement will be available for sale in other offerings pursuant to the base prospectus
and a corresponding prospectus supplement.
The information in this prospectus
is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the Registration
Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state or jurisdiction where such offer or sale is not permitted.
Subject to Completion
Dated May 24, 2024
PROSPECTUS
$300,000,000
CELLECTAR BIOSCIENCES, INC.
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights to Purchase Common Stock, Preferred Stock,
Debt Securities or Units
Units |
We may offer and sell from time to time, in one
or more offerings, our shares of common stock; shares of preferred stock; debt securities; warrants; rights to purchase common stock,
preferred stock, debt securities or units; as well as units that include any of these securities. We may sell any combination of these
securities in one or more offerings with an aggregate offering price of up to $300,000,000.
This prospectus
provides a general description of the securities we may offer. Each time we decide to offer securities pursuant to this prospectus, we
will provide a prospectus supplement containing specific terms of the particular offering together with this prospectus. You should read
this prospectus and the applicable prospectus supplement carefully before you invest in any securities. The prospectus supplement also
may add, update or change information contained in this prospectus.
This prospectus may not be used to offer and
sell securities unless accompanied by the applicable prospectus supplement.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “CLRB.” On May 22, 2024, the last reported sale price of our common stock was $3.20.
We may sell the securities directly or to or through
underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are included in
a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement. In
addition, the underwriters, if any, may over-allot a portion of the securities.
We are a “smaller
reporting company” as defined under the federal securities laws and, as such, are eligible for reduced public company reporting
requirements. See “Summary - Implications of Being a Smaller Reporting Company.”
Investing in
our securities involves significant risks. We strongly recommend that you read carefully the risks we describe in this prospectus and
in any accompanying prospectus supplement, as well as the risk factors that are incorporated by reference into this prospectus from our
filings made with the Securities and Exchange Commission. See “Risk Factors” beginning on page 4 of this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, (the “SEC”), using a “shelf” registration process.
Under this shelf registration process, we may offer and sell from time to time any combination of the securities described in this prospectus
in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering, with an aggregate offering
price of up to $300,000,000. This prospectus provides you with a general description of the securities we may offer.
Each time we offer securities, we will provide
a prospectus supplement that describes the terms of the relevant offering. The prospectus supplement also may add, update or change information
contained in this prospectus. Before making an investment decision, you should read carefully both this prospectus and any prospectus
supplement together with the documents incorporated by reference into this prospectus as described below under the heading “Information
Incorporated by Reference.”
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
You should read both this prospectus and any accompanying
prospectus supplement together with the additional information incorporated by reference. See “Where You Can Find More Information”
and “Information Incorporated by Reference.” We have not authorized anyone to provide you with different information. You
should not assume that the information in this prospectus or any supplement to this prospectus is accurate at any date other than the
date indicated on the cover page of these documents or the filing date of any document incorporated by reference, regardless of its time
of delivery. We are not making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted.
We may sell our securities to or through underwriters,
dealers or agents, directly to purchasers or through a combination of any of these methods of sale, as designated from time to time. We
and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of our securities. An applicable prospectus
supplement, which we will provide each time we offer the securities, will set forth the names of any underwriters, dealers or agents involved
in the sale of our securities, and any related fee, commission or discount arrangements. See “Plan of Distribution.”
The terms “Cellectar Biosciences,”
“Cellectar,” the “Company,” “our,” “us” and “we,” as used in this prospectus,
refer to Cellectar Biosciences, Inc., a Delaware corporation, and its subsidiary unless we state otherwise or the context indicates otherwise.
SUMMARY
This summary highlights selected information
from this prospectus and does not contain all of the information that you need to consider in making your investment decision. You should
carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks
of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this
prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our consolidated
financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Company Overview
We are a late-stage clinical biopharmaceutical
company focused on the discovery, development and commercialization of drugs for the treatment of cancer. Our core objective is to leverage
our proprietary phospholipid ether drug conjugate ™ (PDC™) delivery platform to develop PDCs that are designed to specifically
target cancer cells and deliver improved efficacy and better safety as a result of fewer off-target effects. We believe that our PDC platform
possesses the potential for the discovery and development of the next generation of cancer-targeting treatments, and we plan to develop
PDCs both independently and through research and development collaborations.
Implications of Being a
Smaller Reporting Company
We
are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
We may take advantage of certain of the scaled disclosures available to smaller reporting companies until the last day of the fiscal year
in which (i) the market value of our common stock held by non-affiliates exceeds $250 million as of the end of that year’s second
fiscal quarter and our annual revenue exceeds $100 million during such completed fiscal year, or (ii) the market value of our common stock
held by non-affiliates exceeds $700 million, regardless of our annual revenue, as of the end of that year’s second fiscal quarter.
Corporate Information
Our principal executive offices are located at
100 Campus Drive, Florham Park, New Jersey 07932 and the telephone number of our principal executive offices is (608) 441-8120. We maintain
a website at www.cellectar.com. The information included or referred to on, or accessible through, our website does not constitute
part of, and is not incorporated by reference into, this prospectus.
RISK FACTORS
Investing in our securities involves risk. You
should carefully consider the specific risks discussed or incorporated by reference into the applicable prospectus supplement, together
with all the other information contained in the prospectus or incorporated by reference into this prospectus and the applicable prospectus
supplement. You should also consider the risks, uncertainties and assumptions discussed under the caption “Risk Factors” included
in our Annual Report on Form 10-K for the year ended December 31, 2023, and in subsequent filings, which are incorporated by reference
into this prospectus. These risk factors may be amended, supplemented or superseded from time to time by other reports we file with the
SEC in the future or by a prospectus supplement relating to a particular offering of our securities. These risks and uncertainties are
not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view
as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement
or any additional risks and uncertainties actually occur, our business, financial condition and results of operations could be materially
and adversely affected. In that case, the trading price of our securities could decline and you might lose all or part of your investment.
FORWARD-LOOKING STATEMENTS
This prospectus contains and incorporates by reference
“forward-looking statements” within the meaning of the federal securities laws. All statements other than statements of historical
fact contained or incorporated by reference in this prospectus, including statements regarding our future results of operations and financial
position, business strategy and plans and objectives of management for future operations, are “forward-looking statements”
for the purposes of this prospectus. These statements involve known and unknown risks, uncertainties and other important factors that
may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements
expressed or implied by the forward-looking statements.
In some cases, you can identify forward-looking
statements by terminology, such as “expects,” “anticipates,” “intends,” “estimates,” “plans,”
“believes,” “seeks,” “may,” “should,” “could,” “would,” or the
negative of such terms or other similar expressions. The forward-looking statements in this prospectus are only predictions. We have based
these forward-looking statements largely on our current expectations and projections about future events and financial trends that we
believe may affect our business, financial condition and results of operations. These forward-looking statements speak only as of the
date of this prospectus and are subject to a number of risks, uncertainties and assumptions described in the section titled “Risk
Factors” and elsewhere in this prospectus. Because forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified, you should not rely on these forward-looking statements as predictions of future events.
The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ
materially from those projected in the forward-looking statements. Some of the key factors that could cause actual results to differ from
our expectations include:
| · | our current views with respect to our business strategy, business plan and research and development activities; |
| · | the progress of our product development programs, including clinical testing and the timing of commencement
and results thereof; |
| · | our projected operating results, including research and development expenses; |
| · | our ability to continue development plans for iopofosine I 131 (also known as CLR 131 or simply iopofosine),
CLR 1900 series, CLR 2000 series and CLR 12120; |
| · | our ability to continue development plans for our Phospholipid Drug Conjugates (PDC)™; |
| · | our ability to maintain orphan drug designation in the U.S. for iopofosine as a therapeutic for the treatment
of multiple myeloma, neuroblastoma, osteosarcoma, rhabdomyosarcoma, Ewing’s sarcoma and lymphoplasmacytic lymphoma, and the expected
benefits of orphan drug status; |
| · | any disruptions at our sole supplier of iopofosine; |
| · | our ability to obtain additional funding via the sale of equity and/or debt securities, a strategic transaction
or otherwise; |
| · | our ability to advance our technologies into product candidates; |
| · | our enhancement and consumption of current resources along with ability to obtain additional funding; |
| · | our current view regarding general economic and market conditions, including our competitive strengths; |
| · | uncertainty and economic instability resulting from conflicts, military actions, terrorist attacks, natural
disasters, public health crises, including the occurrence of a contagious disease or illness such as the COVID-19 pandemic, cyber-attacks
and general instability; |
| · | the future impacts of legislative and regulatory developments in the United States on the pricing and
reimbursement of our product candidates; |
| · | our ability to meet the continued listing standards of Nasdaq; |
| · | assumptions underlying any of the foregoing; and |
| · | any other statements that address events or developments that we intend or believe will or may occur in
the future. |
These statements relate to future events or
to future financial performance and involve known and unknown risks, uncertainties, and other factors that may cause our actual
results, performance, or achievements to be materially different from any future results, performance, or achievements expressed or
implied by these forward-looking statements. Factors that may cause actual results to differ materially from current expectations
include, among other things, those set forth in Part I, Item 1A – “Risk Factors” of our Annual Report on Form 10-K
for the year ended December 31, 2023, and any risks contained in any other documents incorporated by reference herein. Any
forward-looking statement in this prospectus reflects our current view with respect to future events and is subject to these and
other risks, uncertainties, and assumptions relating to our operations, results of operations, industry, and future growth. Given
these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume
no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the
future.
This prospectus and the documents incorporated
by reference may also contain estimates, projections, and other information concerning our industry, our business, and the markets for
certain drugs, including data regarding the estimated size of those markets, their projected growth rates, and the incidence of certain
medical conditions. Information that is based on estimates, forecasts, projections, or similar methodologies is inherently subject to
uncertainties, and actual events or circumstances may differ materially from events and circumstances reflected in this information. Unless
otherwise expressly stated, we obtained these industry, business, market and other data from reports, research surveys, studies, and similar
data prepared by third parties, industry, medical and general publications, government data, and similar sources. In some cases, we do
not expressly refer to the sources from which these data are derived.
USE OF PROCEEDS
We will retain broad discretion over the use of
the net proceeds from the sale of the securities offered hereby. Except as described in any prospectus supplement or any related free
writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities
offered hereby for general corporate purposes, including working capital, operating expenses and capital expenditures. We may also use
a portion of the net proceeds to acquire or invest in businesses and products that are complementary to our own, although we have no current
plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth in the applicable
prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant
to the prospectus supplement or free writing prospectus. We intend to invest the net proceeds to us from the sale of securities offered
hereby that are not used as described above in short-term, investment-grade, interest-bearing instruments.
DESCRIPTION OF CAPITAL STOCK
The following summary describes our capital
stock and the material provisions of our Second Amended and Restated Certificate of Incorporation, as amended, which we refer to as our
certificate of incorporation, our amended and restated by-laws, which we refer to as our bylaws, and the applicable provisions of the
Delaware General Corporation Law, which we refer to as the DGCL. Because the following is only a summary, it does not contain all of the
information that may be important to you. For a complete description, you should refer to our certificate of incorporation and bylaws,
which are included as exhibits to this registration statement. For more information on how you can obtain copies of our certificate of
incorporation and bylaws, see “Where You Can Find More Information.”
Authorized Capital Stock
Our authorized capital stock consists of 170,000,000
shares of common stock, $0.00001 par value per share and 7,000 shares of preferred stock, $0.00001 par value per share. Our certificate
of incorporation authorizes us to issue shares of our preferred stock from time to time in one or more series without stockholder approval,
each such series to have rights and preferences, including voting rights, dividend rights, conversion rights, redemption privileges and
liquidation preferences as our board of directors may determine. The rights of the holders of common stock will be subject to, and may
be adversely affected by, the rights of holders of any preferred stock, including our Series D and Series E Convertible Preferred Stock
and any other series of preferred stock we may issue in the future. The issuance of preferred stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for others to
acquire, or of discouraging others from attempting to acquire, a majority of our outstanding voting stock.
As
of May 14, 2024, there were 35,848,924 shares of common stock outstanding.
Common Stock
Voting. Holders of our common stock
are entitled to one vote per share held of record on all matters to be voted upon by our stockholders. Our common stock does not have
cumulative voting rights. Persons who hold a majority of the outstanding common stock entitled to vote on the election of directors can
elect all of the directors who are eligible for election.
Dividends. Subject to preferences
that may be applicable to the holders of any outstanding shares of our preferred stock, the holders of our common stock are entitled to
receive such lawful dividends as may be declared by our board of directors.
Liquidation and Dissolution. In the
event of our liquidation, dissolution or winding up, and subject to the rights of the holders of any outstanding shares of our preferred
stock, the holders of shares of our common stock will be entitled to receive pro rata all of our remaining assets available for distribution
to our stockholders.
Other Rights and Restrictions. Our
charter prohibits us from granting preemptive rights to any of our stockholders.
Preferred Stock
Series
D Preferred Stock
The
following is a summary of the terms of the Series D Preferred Stock:
Voting
Rights. The Series D Preferred Stock has no voting rights. However, as long as any shares of Series D Preferred Stock are outstanding,
the Company shall not, without the affirmative vote of the holders of a majority of the then outstanding shares of the Series D Preferred
Stock, (a) alter or change adversely the powers, preferences or rights given to the Series D Preferred Stock or alter or amend the Certificate
of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights
of the holders, (c) increase the number of authorized shares of Series D Preferred Stock, or (d) enter into any agreement with respect
to any of the foregoing.
Dividends.
Holders of Series D Preferred Stock are entitled to receive dividends on shares of Series D Preferred Stock equal (on an as-if-converted-to-Common-Stock
basis and without regard to any limitations on conversion set forth herein or otherwise) to and in the same form as dividends actually
paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends shall be
paid on shares of Series D Preferred Stock. The Company shall not pay any dividends on the Common Stock unless the Company simultaneously
complies with this provision.
Liquidation.
Upon any liquidation, dissolution or winding-up of the Company, the assets of the Company available for distribution to its stockholders
shall be distributed among the holders of the shares of Series D Preferred Stock in the same amount that a holder of Common Stock would
receive if the Series D Preferred Stock were fully converted (disregarding for such purposes any conversion limitations hereunder) to
Common Stock which amounts shall be paid pari passu with all holders of Common Stock.
Series
E Preferred Stock
The
following is a summary of the terms of the Series E Preferred Stock:
Dividends.
Holders of Series E Preferred Stock are entitled to receive dividends on shares of Series E Preferred Stock equal (on an as-if-converted-to-common-stock
basis and without regard to any limitations on conversion set forth herein or otherwise) to and in the same form as dividends actually
paid on shares of the common stock when, as and if such dividends are paid on shares of the common stock.
Voting
Rights. Subject to certain limitations, the Series E Preferred Stock is voting stock. Holders of the Series E Preferred Stock are
entitled to vote together with the Common Stock on an as-if-converted-to-common-stock basis. Holders of common stock are entitled to one
vote for each share of Common Stock held on all matters submitted to a vote of stockholders. Accordingly, holders of Series E Preferred
Stock will be entitled to one vote for each whole share of common stock into which their Series E Preferred Stock is then-convertible
on all matters submitted to a vote of stockholders.
Liquidation.
The assets of the Company available for distribution to its stockholders shall be distributed among the holders of the shares of Series
E Preferred Stock, Series D Preferred Stock and common stock, pro rata, in the same form of consideration, based on the number of shares
held by each such holder, treating for this purpose all shares of Series E Preferred Stock as if they had been converted to common stock
pursuant to the terms of the Certificate of Designation of
Series E Preferred Stock immediately prior
to such liquidation, without regard to any limitations on conversion set forth in the Certificate of Designation of Series E Preferred
Stock or otherwise.
Board
Rights. Subject to Nasdaq Stock Market rules and regulation, holders of Series E Preferred Stock have the right to appoint up to two
directors in the Company's Board of Directors, as provided in the Certificate of Designation of Series E Preferred Stock.
Anti-Takeover Effect of Certain
Charter and By-Law Provisions
Provisions of our charter and our by-laws
could make it more difficult to acquire us by means of a merger, tender offer, proxy contest, open market purchases, removal of incumbent
directors and otherwise. These provisions, which are summarized below, are expected to discourage types of coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the
benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because negotiation of these proposals
could result in an improvement of their terms.
Authorized but Unissued Stock.
We have shares of common stock and preferred stock available for future issuance, in some cases, without stockholder approval. We may
issue these additional shares for a variety of corporate purposes, including public offerings to raise additional capital, corporate acquisitions,
stock dividends on our capital stock or equity compensation plans. The existence of unissued and unreserved common stock and preferred
stock may enable our board of directors to issue shares to persons friendly to current management or to issue preferred stock with terms
that could render more difficult or discourage a third-party attempt to obtain control of us, thereby protecting the continuity of our
management. In addition, if we issue preferred stock, the issuance could adversely affect the voting power of holders of common stock
and the likelihood that such holders will receive dividend payments and payments upon liquidation.
Amendments to By-laws. Our by-laws
are subject to alternation or repeal, and new by-laws may be made, by a majority of the voting power of all then outstanding shares of
capital stock entitled to vote generally in the election of directors, voting together a single class. Additionally, our by-laws provide
the Board with the power to make, adopt, alter, amend and repeal, from time to time, our by-laws, provided, however, that the stockholders
entitled to vote with respect to amendments to our by-laws may alter, amend or repeal by-laws made by the Board.
Classification of Board; Removal
of Directors; Vacancies. Our certificate of incorporation provide for the division of the Board into three classes as nearly
equal in size as possible with staggered three-year terms; that directors may be removed only for cause by the affirmative vote of
the holders of two-thirds of our shares of capital stock entitled to vote; and that any vacancy on the Board, however occurring,
including a vacancy resulting from an enlargement of the board, may be filled only by the vote of a majority of the directors then in
office. The limitations on the removal of directors and the filling of vacancies could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from acquiring, control of us. Our certificate of incorporation requires the
affirmative vote of the holders of at least 75% of our shares of capital stock issued and outstanding and entitled to vote to amend or
repeal any of these provisions.
Notice Periods for Stockholder Meetings.
Our by-laws provide that for business to be brought by a stockholder before an annual meeting of stockholders, the stockholder must give
written notice to the corporation not later than the close of business on the 90th day, or earlier than the 120th day prior to the one
year anniversary of the date of the annual meeting of stockholders of the previous year; provided, however, that in the event that
the annual meeting of stockholders is called for a date that is not within 30 days prior to, or more than 60 days after, such anniversary
date, notice by the stockholder must be received not later than 120 days prior to such annual meeting and not later than the close of
business on the 90th day prior to such annual meeting and the 10th day following the day on which the corporation's notice of the date
of the meeting is first given or made to the stockholders or disclosed to the general public. Our by-laws also provide that the Board
or the Chair of such meeting may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board and
in no event shall the adjournment, recess, postponement, judicial stay or rescheduling of an annual meeting commence a new time period,
or extend any time period, for the giving of notice.
Stockholder Action; Special
Meetings. Our certificate of incorporation provides that stockholder action may not be taken by written action in lieu of a meeting
and provides special meetings of the stockholders may only be called by the Chair of the board, the president or by our Board. These provisions
could have the effect of delaying until the next stockholders' meeting stockholder actions that are favored by the holders of a majority
of our outstanding voting securities. These provisions may also discourage another person or entity from making a tender offer for our
common stock, because that person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take
action as a stockholder only at a duly called stockholders' meeting, and not by written consent. Our certificate of incorporation requires
the affirmative vote of the holders of at least 75% of our shares of capital stock issued and outstanding and entitled to vote to amend
or repeal the provisions relating to prohibition on action by written consent and the calling of a special meeting of stockholders.
Nominations. Our by-laws provide
that nominations for election of directors may be made only by (i) the Board or a committee appointed by the Board; or (ii) a stockholder
entitled to vote on director election, if the stockholder provides notice to the Secretary of the Corporation presented not less than
90 days nor more than 120 days prior to the anniversary of the last annual meeting (subject to the limited exceptions set forth in the
bylaws). These provisions may deter takeovers by requiring that any stockholder wishing to conduct a proxy contest have its position solidified
well in advance of the meeting at which directors are to be elected and by providing the incumbent Board with sufficient notice to allow
them to put an election strategy in place. Our bylaws also provide that stockholders seeking to present proposals before a meeting of
stockholders to nominate candidates for election as directors at a meeting of stockholders must provide timely advance notice in writing,
and specifies requirements as to the form and content of a stockholder’s notice.
Choice of Forum. Our bylaws provides that
the Court of Chancery of the state of Delaware shall be the exclusive forum for the following types of actions or proceedings under Delaware
statutory or common law:
| · | any derivative action or proceeding brought on our behalf; |
| · | any action asserting a breach of fiduciary duty; |
| · | any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our
restated certificate, or our amended and restated bylaws; or |
| · | any action asserting a claim against us that is governed by the internal affairs doctrine. |
The provision does not apply to suits
brought to enforce a duty or liability created by the Exchange Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction
for federal and state courts over all such Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain
such claims.
To prevent having to litigate claims in multiple
jurisdictions and the threat of inconsistent or contrary rulings by different courts, among other considerations, our bylaws provide that
unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States shall be the exclusive
forum for the resolution of any complaint asserting a cause of action arising under the Securities Act.
While the Delaware courts have determined
that such choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than those
designated in the exclusive forum provisions. In such instance, we would expect to vigorously assert the validity and enforceability of
the exclusive forum provisions of our certificate of incorporation. This may require significant additional costs associated with resolving
such action in other jurisdictions and there can be no assurance that the provisions will be enforced by a court in those other jurisdictions.
These exclusive forum provisions may
limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors,
officers, or other employees, which may discourage lawsuits against us and our directors, officers and other employees. If a court were
to find either exclusive-forum provision in our bylaws to be inapplicable or unenforceable in an action, we may incur further significant
additional costs associated with resolving the dispute in other jurisdictions, all of which could seriously harm our business.
Our bylaws further provides that the
federal district courts of the United States of America shall be the exclusive forum for resolving any complaint asserting a cause of
action arising under the Securities Act.
No Cumulative Voting. Delaware
General Corporation Law 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 and bylaws do not provide for
cumulative voting.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Equiniti Trust Company LLC. The transfer agent’s address is 6201 15th Avenue,
Brooklyn, NY 11219, and its telephone number is (718) 921-8300.
Exchange Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “CLRB.”
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares
of our common stock, shares of our preferred stock or debt securities. The following description sets forth certain general terms and
provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent, if any,
to which the general terms and provisions may apply to the warrants so offered will be described in the applicable prospectus supplement.
Warrants may be issued independently or together
with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our
agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial
owners of warrants.
A copy of the forms of the warrant agreement and
the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should
read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the
warrant agreement and the related warrant certificate, see “Where You Can Find More Information.”
Stock Warrants
The prospectus supplement relating to a particular
issue of warrants to issue shares of our common stock or shares of our preferred stock will describe the terms of the common share warrants
and preferred share warrants, including the following:
| · | the title of the warrants; |
| · | the offering price for the warrants, if any; |
| · | the aggregate number of the warrants; |
| · | the designation and terms of the shares of common stock or shares of preferred stock that may be purchased
upon exercise of the warrants; |
| · | the terms for changes or adjustments to the exercise price of the warrants; |
| · | if applicable, the designation and terms of the securities that the warrants are issued with and the number
of warrants issued with each security; |
| · | if applicable, the date from and after which the warrants and any securities issued with the warrants
will be separately transferable; |
| · | the number of shares of common stock or shares of preferred stock that may be purchased upon exercise
of a warrant and the price at which the shares may be purchased upon exercise; |
| · | the dates on which the right to exercise the warrants commence and expire; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the amount of warrants outstanding at the time of the offering, if any; |
| · | if applicable, a discussion of material U.S. Federal income tax considerations; |
| · | anti-dilution provisions of the warrants, if any; |
| · | redemption or call provisions, if any, applicable to the warrants; |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants; and |
| · | any other information we think is important about the warrants. |
Debt Warrants
The prospectus supplement relating to a particular
issue of warrants to issue debt securities will describe the terms of those warrants, including the following:
| · | the title of the warrants; |
| · | the offering price for the warrants, if any; |
| · | the aggregate number of the warrants; |
| · | the designation and terms of the debt securities purchasable upon exercise of the warrants; |
| · | the terms for changes or adjustments to the exercise price of the warrants; |
| · | if applicable, the designation and terms of the debt securities that the warrants are issued with and
the number of warrants issued with each debt security; |
| · | if applicable, the date from and after which the warrants and any debt securities issued with them will
be separately transferable; |
| · | the principal amount of debt securities that may be purchased upon exercise of a warrant and the price
at which the debt securities may be purchased upon exercise; |
| · | the dates on which the right to exercise the warrants will commence and expire; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | whether the warrants represented by the warrant certificates or debt securities that may be issued upon
exercise of the warrants will be issued in registered or bearer form; |
| · | information relating to book-entry procedures, if any; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the amount of warrants outstanding at the time of the offering, if any; |
| · | if applicable, a discussion of material U.S. Federal income tax considerations; |
| · | anti-dilution provisions of the warrants, if any; |
| · | redemption or call provisions, if any, applicable to the warrants; |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants; and |
| · | any other information we think is important about the warrants. |
Exercise of Warrants
Each warrant will entitle the holder of the warrant
to purchase at the exercise price set forth in the applicable prospectus supplement the number of shares of common stock, shares of preferred
stock or the principal amount of debt securities being offered. Holders may exercise warrants at any time up to the close of business
on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase
our shares of common stock, shares of preferred stock or debt securities, the holder will not have any rights as a holder of our shares
of common stock, shares of preferred stock or debt securities, as the case may be, by virtue of ownership of warrants.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the
terms of debt securities we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular
terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities.
As required by federal law for all bonds and notes
of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture.”
We have summarized the general features of the debt securities to be governed by the indenture. The summary is not complete. An indenture
is a contract between us and a financial institution acting as trustee on behalf of the holders of the debt securities and is subject
to and governed by the Trust Indenture Act of 1939, as amended. The trustee has two main roles. First, the trustee can enforce holders’
rights against us if we default. There are some limitations on the extent to which the trustee acts on holders’ behalf, described
in the second paragraph under “Description of Debt Securities — Events of Default.” Second, the trustee performs certain
administrative duties, such as sending interest and principal payments to holders.
Because this section is a summary, it does not
describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular terms of any
debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you to read the
applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because it, and not this
description, will define the rights of holders of such debt securities.
A prospectus supplement will describe the particular
terms of any series of debt securities we may issue, including some or all of the following:
| · | the designation, ranking, or title of the series of debt securities |
| · | the total principal amount of the series of debt securities, the denominations in which the offered debt
securities will be issued and whether the offering may be reopened for additional securities of that series and on what terms; |
| · | the percentage of the principal amount at which the series of debt securities will be offered; |
| · | the date or dates on which principal will be payable; |
| · | the rate or rates (which may be either fixed or variable) and/or the method of determining such rate or
rates of interest, if any; |
| · | the date or dates from which any interest will accrue, or the method of determining such date or dates,
and the date or dates on which any interest will be payable; |
| · | the terms for redemption, extension or early repayment, if any; |
| · | the currencies in which the series of debt securities are issued and payable; |
| · | whether the amount of payments of principal, interest or premium, if any, on a series of debt securities
will be determined with reference to an index, formula or other method, and how these amounts will be determined; |
| · | the place or places of payment, transfer, conversion and/or exchange of the debt securities; |
| · | the provision for any sinking fund; |
| · | the provision for any liens securing the securities, if any; |
| · | any restrictive covenants, including any restrictions on the declaration of dividends, the incurrence
of additional debt, or the issuance of additional securities, and/or any requirements for the maintenance of any asset ratio or the creation
or maintenance of reserves; |
| · | events of default and any addition to, deletion of or change to the events of default; |
| · | whether the series of debt securities are issuable in certificated form; |
| · | any provisions for legal defeasance or covenant defeasance; |
| · | whether and under what circumstances we will pay additional amounts in respect of any tax, assessment
or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts
(and the terms of this option); |
| · | any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
| · | whether the debt securities are subject to subordination and the terms of such subordination; |
| · | any listing of the debt securities on any securities exchange; |
| · | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and
any integral multiple thereof; |
| · | a discussion of material U.S. Federal income tax considerations, including those related to original issue
discount, if applicable; and |
| · | any other material terms. |
The debt securities may be secured or unsecured
obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be paid by us in immediately
available funds.
General
The indenture may provide that any debt securities
proposed to be sold under this prospectus and the applicable prospectus supplement relating to such debt securities (“offered debt
securities”) and any debt securities issuable upon conversion or exchange of other offered securities (“underlying debt securities”)
may be issued under the indenture in one or more series.
For purposes of this prospectus, any reference
to the payment of principal of, or interest or premium, if any, on, debt securities will include additional amounts if required by the
terms of the debt securities.
Debt securities issued under an indenture, when
a single trustee is acting for all debt securities issued under the indenture, are called the “indenture securities.” The
indenture may also provide that there may be more than one trustee thereunder, each with respect to one or more different series of securities
issued thereunder. See “Description of Debt Securities — Resignation of Trustee” below. At a time when two or more trustees
are acting under an indenture, each with respect to only certain series, the term “indenture securities” means the one or
more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee
under an indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to the one or more
series of indenture securities for which it is trustee. If two or more trustees are acting under an indenture, then the indenture securities
for which each trustee is acting would be treated as if issued under separate indentures.
We refer you to the applicable prospectus supplement
relating to any debt securities we may issue from time to time for information with respect to any deletions from, modifications of or
additions to the Events of Default or covenants that are described below, including any addition of a covenant or other provision providing
event risk or similar protection, that will be applicable with respect to such debt securities.
We have the ability to issue indenture securities
with terms different from those of indenture securities previously issued and, without the consent of the holders thereof, to reopen a
previous issue of a series of indenture securities and issue additional indenture securities of that series unless the reopening was restricted
when that series was created.
Conversion and Exchange
If any debt securities are convertible into or
exchangeable for other securities, the related prospectus supplement will explain the terms and conditions of the conversion or exchange,
including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how the period will
be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting the conversion
price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption of the underlying debt securities.
These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt
securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in
the prospectus supplement.
Payment and Paying Agents
We will pay interest to the person listed in the
applicable trustee’s records as the owner of the debt security at the close of business on a particular day in advance of each due
date for interest, even if that person no longer owns the debt security on the interest due date. That day, often approximately two weeks
in advance of the interest due date, is called the “record date.” Because we will pay all the interest for an interest period
to the holders on the record date, holders buying and selling debt securities must work out between themselves the appropriate purchase
price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller
based on their respective ownership periods within the particular interest period. This prorated interest amount is called “accrued
interest.”
Events of Default
Holders of debt securities of any series will
have rights if an Event of Default occurs in respect of the debt securities of such series and is not cured, as described later in this
subsection. The term “Event of Default” in respect of the debt securities of any series means any of the following:
| · | we do not pay the principal of, or any premium on, a debt security of the series on its due date; |
| · | we do not pay interest on a debt security of the series within 30 days of its due date; |
| · | we remain in breach of a covenant in respect of debt securities of the series for 90 days after we receive
a written notice of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25% of the
principal amount of debt securities of the series; |
| · | we file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; and |
| · | any other Event of Default occurs in respect of debt securities of the series described in the prospectus
supplement. |
An Event of Default for a particular series of
debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the same or any
other indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal,
premium or interest, if it considers the withholding of notice to be in the best interests of the holders.
Remedies if an Event of Default Occurs
If an Event of Default has occurred and has not
been cured or waived (other than in the case of a bankruptcy proceeding), the trustee or the holders of not less than 25% in principal
amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series
to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity
may be canceled by the holders of a majority in principal amount of the debt securities of the affected series if the default is cured
or waived and certain other conditions are satisfied.
Except in cases of default, where the trustee
has some special duties, the trustee typically is not required to take any action under an indenture at the request of any holders unless
the holders offer the trustee reasonable protection from expenses and liability (called an “indemnity”). If reasonable indemnity
is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee may refuse
to follow those directions in certain circumstances.
Before a holder is allowed to bypass the trustee
and bring its own lawsuit or other formal legal action or take other steps to enforce its rights or protect its interests relating to
any debt securities, the following must occur:
| · | the holder must give the trustee written notice that an Event of Default has occurred and remains uncured; |
| · | the holders of at least 25% in principal amount of all outstanding debt securities of the relevant series
must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against
the cost and other liabilities of taking that action; |
| · | the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity;
and |
| · | the holders of a majority in principal amount of the debt securities must not have given the trustee a
direction inconsistent with the above notice during that 60-day period. |
However, a holder is entitled at any time to bring
a lawsuit for the payment of money due on its debt securities on or after the due date. Each year, we will furnish to each trustee a written
statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture and the debt securities,
or else specifying any default.
Waiver of Default
The holders of a majority in principal amount
of the relevant series of debt securities may waive a default for all such series of debt securities. If this happens, the default will
be treated as if it had not occurred. No one can waive a payment default on a holder’s debt security, however, without the holder’s
approval.
Merger or Consolidation
Under the terms of an indenture, we may be permitted
to consolidate or merge with another entity. We may also be permitted to sell all or substantially all of our assets to another entity.
However, typically we may not take any of these actions unless all the following conditions are met:
| · | if we do not survive such transaction or we convey, transfer or lease our properties and assets substantially
as an entirety, the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form,
organized under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible
for our debt securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia,
the new company must submit to such jurisdiction for all purposes with respect to the debt securities and appoint an agent for service
of process; |
| · | alternatively, we must be the surviving company; |
| · | immediately after the transaction no Event of Default will exist; |
| · | we must deliver certain certificates and documents to the trustee; and |
| · | we must satisfy any other requirements specified in the prospectus supplement relating to a particular
series of debt securities. |
Modification or Waiver
There are three types of changes we may make to
an indenture and the debt securities issued thereunder.
Changes Requiring Approval
First, there are changes that we cannot make to
debt securities without specific approval of all of the holders. The following is a list of the types of changes that may require specific
approval:
| · | change the stated maturity of the principal of or rate of interest on a debt security; |
| · | reduce any amounts due on a debt security; |
| · | reduce the amount of principal payable upon acceleration of the maturity of a security following a default; |
| · | at any time after a change of control has occurred, reduce any premium payable upon a change of control; |
| · | change the place or currency of payment on a debt security (except as otherwise described in the prospectus
or prospectus supplement); |
| · | impair the right of holders to sue for payment; |
| · | adversely affect any right to convert or exchange a debt security in accordance with its terms; |
| · | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
| · | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain
provisions of the indenture or to waive certain defaults; |
| · | modify any other aspect of the provisions of the indenture dealing with supplemental indentures, modification
and waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and |
| · | change any obligation we have to pay additional amounts. |
Changes Not Requiring Approval
The second type of change does not require any
vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that would not adversely
affect holders of the outstanding debt securities in any material respect, including the addition of covenants. We also do not need any
approval to make any change that affects only debt securities to be issued under the indenture after the change takes effect.
Changes Requiring Majority Approval
Any other change to the indenture and the debt
securities may require the following approval:
| · | if the change affects only one series of debt securities, it must be approved by the holders of a majority
in principal amount of that series; and |
| · | if the change affects more than one series of debt securities issued under the same indenture, it must
be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting
together as one class for this purpose. |
The holders of a majority in principal amount
of all of the series of debt securities issued under an indenture, voting together as one class for this purpose, may waive our compliance
obligations with respect to some of our covenants in that indenture. However, we cannot obtain a waiver of a payment default or of any
of the matters covered by the bullet points included above under “Description of Debt Securities — Modification or Waiver
— Changes Requiring Approval.”
Defeasance
The following provisions will be applicable to
each series of debt securities unless we state in the applicable prospectus supplement that the provisions of covenant defeasance and
legal defeasance will not be applicable to that series.
Covenant Defeasance
We can make the deposit described below and be
released from some of the restrictive covenants in the indenture under which the particular series was issued. This is called “covenant
defeasance.” In that event, the holders would lose the protection of those restrictive covenants but would gain the protection of
having money and government securities set aside in trust to repay holders’ debt securities. If applicable, a holder also would
be released from the subordination provisions described under “Description of Debt Securities — Indenture Provisions —
Subordination” below. In order to achieve covenant defeasance, we must do the following:
| · | If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust
for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds
that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates; |
| · | We may be required to deliver to the trustee a legal opinion of our counsel confirming that, under current
U.S. Federal income tax law, we may make the above deposit without causing the beneficial owners of the debt securities to be taxed on
the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity; and |
| · | We must deliver to the trustee certain documentation stating that all conditions precedent to covenant
defeasance have been complied with. |
If we accomplish covenant defeasance, holders
can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented from
making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities became immediately
due and payable, there might be a shortfall. Depending on the event causing the default, holders may not be able to obtain payment of
the shortfall.
Legal Defeasance
As described below, we can legally release ourselves
from all payment and other obligations on the debt securities of a particular series (called “legal defeasance”), (1) if there
is a change in U.S. Federal tax law that allows us to effect the release without causing the holders to be taxed any differently than
if the release had not occurred, and (2) if we put in place the following other arrangements for holders to be repaid:
| · | If the debt securities of the particular series are denominated in U.S. dollars, we must deposit in trust
for the benefit of all holders of such debt securities a combination of money and U.S. government or U.S. government agency notes or bonds
that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates; |
We may be required to deliver to the trustee a
legal opinion confirming that there has been a change in current U.S. Federal tax law or an Internal Revenue Service ruling that allows
us to make the above deposit without causing the beneficial owners of the debt securities to be taxed on the debt securities any differently
than if we did not make the deposit and just repaid the debt securities ourselves at maturity. Under current U.S. Federal tax law, the
deposit and our legal release from the debt securities would be treated as though we paid each beneficial owner its share of the cash
and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for its debt securities and beneficial
owners would recognize gain or loss on the debt securities at the time of the deposit; and
| · | We must deliver to the trustee a legal opinion and officers’ certificate stating that all conditions
precedent to legal defeasance have been complied with. |
If we ever did accomplish legal defeasance, as
described above, holders would have to rely solely on the trust deposit for repayment of the debt securities. Holders could not look to
us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our
lenders and other creditors if we ever became bankrupt or insolvent. If applicable, holders would also be released from the subordination
provisions described later under “Description of Debt Securities — Indenture Provisions — Subordination.”
Resignation of Trustee
Each trustee may resign or be removed with respect
to one or more series of indenture securities provided that a successor trustee is appointed to act with respect to such series. In the
event that two or more persons are acting as trustee with respect to different series of indenture securities under the indenture, each
of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Indenture Provisions —
Subordination
Upon any distribution of our assets upon our
dissolution, winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any
indenture securities denominated as subordinated debt securities is to be subordinated to the extent provided in the indenture in
right of payment to the prior payment in full of all Senior Indebtedness (defined below), but our obligation to holders to make
payment of the principal of (and premium, if any) and interest on such subordinated debt securities will not otherwise be affected.
In addition, no payment on account of principal (or premium, if any), interest or sinking fund, if any, may be made on such
subordinated debt securities at any time unless full payment of all amounts due in respect of the principal (and premium, if any),
interest and sinking fund, if any, on Senior Indebtedness has been made or duly provided for in money or money’s worth.
In the event that, notwithstanding the foregoing,
any payment from us is received by the trustee in respect of subordinated debt securities or by the holders of any of such subordinated
debt securities before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the holders of the Senior
Indebtedness or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness
has been paid in full, after giving effect to any concurrent payment or distribution to the holders of the Senior Indebtedness. Subject
to the payment in full of all Senior Indebtedness, the holders of such subordinated debt securities will be subrogated to the rights of
the holders of the Senior Indebtedness to the extent of payments made to the holders of the Senior Indebtedness out of the distributive
share of such subordinated debt securities.
By reason of this subordination, in the event
of a distribution of our assets upon our insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated
debt securities. The related indenture will provide that these subordination provisions will not apply to money and securities held in
trust under the defeasance provisions of the indenture.
“Senior Indebtedness” will be defined
in an applicable indenture as the principal of (and premium, if any) and unpaid interest on:
| · | our indebtedness (including indebtedness of others guaranteed by us), whenever created, incurred, assumed
or guaranteed, for money borrowed (other than indenture securities issued under the indenture and denominated as subordinated debt securities),
unless in the instrument creating or evidencing the same or under which the same is outstanding it is provided that this indebtedness
is not senior or prior in right of payment to the subordinated debt securities; and |
| · | renewals, extensions, modifications and refinancings of any of such indebtedness. |
The prospectus supplement accompanying any series
of indenture securities denominated as subordinated debt securities will set forth the approximate amount of our Senior Indebtedness outstanding
as of a recent date.
Trustee
We intend to name the indenture trustee for each
series of indenture securities in the related prospectus supplement.
Certain Considerations
Relating to Foreign Currencies
Debt securities denominated or payable in foreign
currencies may entail significant risks. These risks include the possibility of significant fluctuations in the foreign currency markets,
the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market. These risks will vary depending
upon the currency or currencies involved and will be more fully described in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
The following is a general description of the
terms of the rights we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular terms
of any rights we offer will be described in the prospectus supplement relating to such rights.
General
We may issue rights to purchase common stock,
preferred stock, debt securities or units. Rights may be issued independently or together with other securities and may or may not be
transferable by the person purchasing or receiving the rights. In connection with any rights offering to our stockholders, we may enter
into a standby underwriting, backstop or other arrangement with one or more underwriters or other persons pursuant to which such underwriters
or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. In connection with a rights
offering to our stockholders, we would distribute certificates evidencing the rights and a prospectus supplement to our stockholders on
or about the record date that we set for receiving rights in such rights offering.
The applicable prospectus supplement will describe
the following terms of any rights we may issue, including some or all of the following:
| · | the title and aggregate number of the rights; |
| · | the subscription price or a formula for the determination of the subscription price for the rights and
the currency or currencies in which the subscription price may be payable; |
| · | if applicable, the designation and terms of the securities with which the rights are issued and the number
of rights issued with each such security or each principal amount of such security; |
| · | the number or a formula for the determination of the number of the rights issued to each stockholder; |
| · | the extent to which the rights are transferable; |
| · | in the case of rights to purchase debt securities, the principal amount of debt securities purchasable
upon exercise of one right; |
| · | in the case of rights to purchase common stock or preferred stock, the type of stock and number of shares
of stock purchasable upon exercise of one right; |
| · | the date on which the right to exercise the rights will commence, and the date on which the rights will
expire (subject to any extension); |
| · | if applicable, the minimum or maximum amount of the rights that may be exercised at any one time; |
| · | the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities; |
| · | if applicable, the procedures for adjusting the subscription price and number of shares of common stock
or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse
stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock; |
| · | the effect on the rights of any merger, consolidation, sale or other disposition of our business; |
| · | the terms of any rights to redeem or call the rights; |
| · | information with respect to book-entry procedures, if any; |
| · | the terms of the securities issuable upon exercise of the rights; |
| · | the amount of rights outstanding at the time of the offering, if any; |
| · | if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement
that we may enter into in connection with the rights offering; |
| · | if applicable, a discussion of material U.S. Federal income tax considerations; and |
| · | any other terms of the rights, including terms, procedures and limitations relating to the exchange and
exercise of the rights. |
Exercise of Rights
Each right will entitle the holder to purchase
for cash or other consideration such shares of stock or principal amount of securities at the subscription price as shall in each case
be set forth in, or be determinable as set forth in, the prospectus supplement relating to the rights offered thereby. Rights may be exercised
as set forth in the applicable prospectus supplement beginning on the date specified therein and continuing until the close of business
on the expiration date set forth in the prospectus supplement relating to the rights offered thereby. After the close of business on the
expiration date, unexercised rights will become void.
Upon receipt of payment and a subscription certificate
properly completed and duly executed at the corporate trust office of the subscription agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all of the rights represented
by such subscription certificate are exercised, a new subscription certificate will be issued for the remaining rights. If we so indicate
in the applicable prospectus supplement, holders of the rights may surrender securities as all or part of the exercise price for rights.
We may determine to offer any unsubscribed offered
securities directly to stockholders, persons other than stockholders, to or through agents, underwriters or dealers or through a combination
of such methods, including pursuant to standby underwriting, backstop or other arrangements, as set forth in the applicable prospectus
supplement.
Prior to exercising their rights, holders of
rights will not have any of the rights of holders of the securities purchasable upon subscription, including, in the case of rights to
purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding
up or to exercise any voting rights or, in the case of rights to purchase debt securities, the right to receive principal, premium, if
any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture.
DESCRIPTION OF UNITS
We may issue units comprising one or more securities
described in this prospectus in any combination. The following description sets forth certain general terms and provisions of the units
that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and
provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of
the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of
each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities included
in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the forms of the unit
agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and
you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the
forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular
issuance of units will describe the terms of those units, including, to the extent applicable, the following:
| · | the designation and terms of the units and the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| · | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and |
| · | whether the units will be issued in fully registered or global form. |
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
in any one or more of the following ways from time to time:
| · | to or through one or more underwriters, brokers or dealers; |
| · | through agents to investors or the public; |
| · | in short or long transactions; |
| · | through put or call option transactions relating to our common stock; |
| · | directly to agents or other purchasers; |
| · | in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to
or through a market maker or into an existing trading market, on an exchange or otherwise; |
| · | though a combination of any such methods of sale; or |
| · | through any other method described in the applicable prospectus supplement. |
In addition, we may issue the securities as a
dividend or distribution or in a subscription rights offering to our existing securityholders. This prospectus may be used in connection
with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
We may directly solicit offers to purchase securities,
or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that
could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. Any such agent will be acting
on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment
basis.
The distribution of the securities may be effected
from time to time in one or more transactions:
| · | at a fixed price, or prices, which may be changed from time to time; |
| · | at market prices prevailing at the time of sale; |
| · | at prices related to such prevailing market prices; or |
The applicable prospectus supplement will set
forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers or agents in
connection with the offering, including:
| · | the terms of the offering; |
| · | the names of any underwriters, dealers or agents; |
| · | the name or names of any managing underwriter or underwriters; |
| · | the purchase price of the securities and the proceeds to us from the sale; |
| · | any over-allotment options under which the underwriters may purchase additional shares of common stock
from us; |
| · | any underwriting discounts, concessions, commissions or agency fees and other items constituting compensation
to underwriters, dealers or agents; |
| · | any delayed delivery arrangements; |
| · | any public offering price; |
| · | any discounts or concessions allowed or re-allowed or paid by underwriters or dealers to other dealers;
or |
| · | any securities exchange or market on which the common stock offered in the prospectus supplement may be
listed. |
If we use underwriters for a sale of securities,
the underwriters will acquire the securities for their own account for resale to the public, either on a firm commitment basis or a best
efforts basis. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to the public either through
underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an
underwriter or underwriters are used in the sale of securities hereunder, an underwriting agreement will be executed with the underwriter
or underwriters at the time an agreement for sale is reached. Unless we inform you otherwise in the applicable prospectus supplement,
the obligations of the underwriters to purchase the securities will be subject to certain conditions. We may change from time to time
any public offering price and any discounts or concessions the underwriters allow or pay to dealers.
During and after an offering through underwriters,
the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose
a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold
for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher
than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any
time.
With respect to each issuance of securities,
we expect to deliver the securities against payment therefor on the original issue date specified in the applicable prospectus
supplement. As of the date of this prospectus, under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are
required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, if the
original issue date for any issuance of securities is more than two business days after the pricing date, purchasers who wish to
trade securities more than two business days prior to the original issue date will be required to specify alternative settlement
arrangements to prevent a failed settlement. In February 2023, Rule 15c6-1 was amended to provide that trades in the secondary
market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise,
effective May 28, 2024. Therefore, for any securities offered under this prospectus on or after the May 28, 2024 effective date, if
the original issue date is more than one business day after the pricing date, purchasers who wish to trade securities more than one
business day prior to the original issue date will be required to specify alternative settlement arrangements to prevent a failed
settlement.
Some or all of the securities that we offer though
this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for
public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market
making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
If dealers are used for the sale of securities,
we, or an underwriter, will sell the securities to them as principals. The dealers may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. We will include in the applicable prospectus supplement the names of the dealers
and the terms of the transaction.
We may also sell the securities through agents
designated from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered
securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly in transactions
not involving underwriters, dealers or agents.
We may sell the securities directly to institutional
investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities.
We will describe the terms of any such sales in the prospectus supplement.
Underwriters, dealers and agents that participate
in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions
they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the
applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe
their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities,
including liabilities under the applicable securities laws.
Underwriters, dealers and agents may engage in
transactions with or perform services for us in the ordinary course of their businesses for which they may receive customary fees and
reimbursement of expenses.
We may use underwriters with whom we have a material
relationship. We will describe the nature of such relationship in the applicable prospectus supplement.
Under the securities laws of some states, the
securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
We may enter into hedging transactions with broker-dealers
and the broker-dealers may engage in short sales of the securities in the course of hedging the positions they assume with us, including,
without limitation, in connection with distributions of the securities by those broker-dealers. We may enter into option or other transactions
with broker-dealers that involve the delivery of the securities offered hereby to the broker-dealers, who may then resell or otherwise
transfer those securities. We may also loan or pledge the securities offered hereby to a broker-dealer and the broker-dealer may sell
the securities offered hereby so loaned or upon a default may sell or otherwise transfer the pledged securities offered hereby.
LEGAL MATTERS
The validity of the securities being offered hereby
will be passed upon for us by Sidley Austin LLP, New York, New York.
EXPERTS
The consolidated financial statements of Cellectar
Biosciences, Inc. appearing in Cellectar Biosciences, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023, have
been audited by Baker Tilly US, LLP, independent registered public accounting firm, as set forth in their report thereon (which contains
an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern
as described in Note 1 to the consolidated financial statements), included therein, and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts
in accounting and auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We have filed with the SEC a registration statement
on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the securities offered by
this prospectus and any applicable prospectus supplement. This prospectus and any applicable prospectus supplement do not contain all
of the information set forth in the registration statement and its exhibits and schedules in accordance with SEC rules and regulations.
For further information with respect to us and the securities being offered by this prospectus and any applicable prospectus supplement,
you should read the registration statement, including its exhibits and schedules. Statements contained in this prospectus and any applicable
prospectus supplement, including documents that we have incorporated by reference, as to the contents of any contract or other document
referred to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit to the registration
statement or any other such document, each such statement is qualified in all respects by reference to the corresponding exhibit. You
should review the complete contract or other document to evaluate these statements. You may obtain copies of the registration statement
and its exhibits via the SEC’s website at http://www.sec.gov.
We file annual, quarterly and current reports,
proxy statements and other documents with the SEC under the Exchange Act. The SEC maintains a website that contains reports, proxy and
information statements and other information regarding issuers, including us, that file electronically with the SEC. You may obtain documents
that we file with the SEC at http://www.sec.gov. We also make these documents available on our website at www.cellectar.com. Our website
and the information contained or accessible through our website is not incorporated by reference in this prospectus or any prospectus
supplement, and you should not consider it part of this prospectus or any prospectus supplement.
INFORMATION INCORPORATED
BY REFERENCE
SEC rules permit us to incorporate information
by reference in this prospectus and any applicable prospectus supplement. This means that we can disclose important information to you
by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part
of this prospectus and any applicable prospectus supplement, except for information superseded by information contained in this prospectus
or any applicable prospectus supplement itself or in any subsequently filed incorporated document. This prospectus and any applicable
prospectus supplement incorporate by reference the documents set forth below that we have previously filed with the SEC, other than information
in such documents that is deemed to be furnished and not filed. These documents contain important information about us and our business
and financial condition.
| · | the description of our securities contained in our Registration Statement on Form 8-A filed on April 18, 2016, including any amendment or report filed for the purpose of updating such description. |
All documents that we file (but not those that
we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of
which this prospectus is a part and prior to the effectiveness of the registration statement shall be deemed to be incorporated by reference
into this prospectus and will automatically update and supersede the information in this prospectus, and any previously filed documents.
All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after
the date of this prospectus and prior to the termination of the offering of any of the securities covered under this prospectus shall
be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus,
the applicable prospectus supplement and any previously filed documents.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement shall be deemed to be
modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained
in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to
be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement.
Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus
or such applicable prospectus supplement.
You can obtain any of the filings incorporated
by reference into this prospectus or any applicable prospectus supplement through us or from the SEC through the SEC’s website at
http://www.sec.gov. Upon request, we will provide, without charge, a copy of any or all of the reports and documents referred to above
which have been incorporated by reference into this prospectus or any applicable prospectus supplement. Prospective investors may obtain
documents incorporated by reference in this prospectus or any applicable prospectus supplement by requesting them in writing or by telephone
from us at our executive offices at:
Cellectar Biosciences, Inc.
100 Campus Drive
Florham Park, New Jersey 07932
Attention: Chief Financial Officer (608) 441-8120
|
Our reports and documents incorporated by reference
herein may also be found in the “Investors” section of our website at www.cellectar.com. The content of our website
and any information that is linked to or accessible from our website (other than our filings with the SEC that are incorporated by reference,
as set forth under “Information Incorporated by Reference”) is not incorporated by reference into this prospectus or any applicable
prospectus supplement and you should not consider it a part of this prospectus, any applicable prospectus supplement, or the registration
statement.
The information in this prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell nor does it seek
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED May 24, 2024.
PROSPECTUS
Up to $75,000,000
Common Stock
We have entered into an equity
distribution agreement (the “Equity Distribution Agreement”) with Piper Sandler & Co. (“Piper Sandler”) relating
to shares of our common stock, par value $0.00001 per share, offered by this prospectus. In accordance with the terms of the Equity Distribution
Agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $75,000,000 from time to time
through Piper Sandler acting as our agent.
Our common stock is listed
on the Nasdaq Capital Market (“Nasdaq”) under the symbol “CLRB.” On May 22, 2024, the last reported sale price
of our common stock on Nasdaq was $3.20 per share.
Sales of our common stock,
if any, under this prospectus will be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4)
promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Piper Sandler is not required to sell any
specific amount of securities, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading
and sales practices, on mutually agreed terms between Piper Sandler and us. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement.
The compensation to Piper
Sandler for sales of common stock sold pursuant to the Equity Distribution Agreement will be an amount equal to 3.0% of the gross proceeds
of any shares of common stock sold under the Equity Distribution Agreement. In connection with the sale of the common stock on our behalf,
Piper Sandler will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Piper
Sandler will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to
Piper Sandler with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). See “Plan of Distribution” beginning on page 20 for additional information regarding
the compensation to be paid to Piper Sandler.
We are a “smaller reporting
company” under federal securities laws and as such, have elected to comply with reduced public company reporting requirements for
this prospectus and the documents incorporated by reference herein and may elect to comply with reduced public company reporting requirements
in future filings. See “Prospectus Summary - Implications of Being a Smaller Reporting Company.”
Our business and an
investment in our common stock involve significant risks. Before making an investment decision, you should review carefully and
consider all of the information set forth in this prospectus and the documents incorporated by reference. These risks are described
under the caption “Risk Factors” beginning on page 5 of this prospectus and in the documents incorporated by reference
into this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Piper Sandler & Co.
The date of this prospectus is , 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of
a shelf registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”). Under this
shelf registration process, we may sell any combination of the securities described in our base prospectus included in the shelf registration
statement in one or more offerings up to a total aggregate offering price of $300,000,000. The $75,000,000 of common stock that may be
offered, issued and sold under this prospectus is included in the $300,000,000 of securities that may be offered, issued and sold by us
pursuant to our shelf registration statement.
You should rely only on the
information contained in, or incorporated by reference into, this prospectus and in any free writing prospectus that we may authorize
for use in connection with this offering. We have not, and Piper Sandler has not, authorized any other person to provide you with different
or additional information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and
Piper Sandler is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation
is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful
to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference
into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only
as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed
since those dates. You should read this prospectus, the documents incorporated by reference into this prospectus, and any free writing
prospectus that we may authorize for use in connection with this offering, in their entirety before making an investment decision. You
should also read and consider the information in the documents to which we have referred you in the section of this prospectus entitled
“Information Incorporated by Reference” and “Where You Can Find More Information.”
We are offering to sell, and
seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus
and the offering of our common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into
possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our common stock
and the distribution of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection
with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction
in which it is unlawful for such person to make such an offer or solicitation.
In this prospectus, the terms
“Cellectar Biosciences,” “Cellectar,” the “Company,” “our,” “us” and “we”
refer to Cellectar Biosciences, Inc., a Delaware corporation, and its subsidiary unless we state otherwise or the context indicates otherwise.
This prospectus and the information
incorporated herein or therein by reference include trademarks, service marks and trade names owned by us or other companies. All trademarks,
service marks and trade names included or incorporated by reference in this prospectus are the property of their respective owners.
PROSPECTUS SUMMARY
This summary highlights selected
information contained elsewhere in this prospectus or incorporated by reference in this prospectus, and does not contain all of the information
that you need to consider in making your investment decision. You should carefully read the entire prospectus and any related free writing
prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in this
and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this
prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements,
and the exhibits to the registration statement of which this prospectus is a part.
Overview
We
are a late-stage clinical biopharmaceutical company focused on the discovery, development and commercialization of drugs for the treatment
of cancer. Our core objective is to leverage our proprietary phospholipid ether drug conjugate ™ (PDC™) delivery platform
to develop PDCs that are designed to specifically target cancer cells and deliver improved efficacy and better safety as a result of fewer
off-target effects. We believe that our PDC platform possesses the potential for the discovery and development of the next generation
of cancer-targeting treatments, and we plan to develop PDCs both independently and through research and development collaborations.
Implications of Being a Smaller Reporting
Company
We are a “smaller reporting
company” as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We may take advantage of
certain of the scaled disclosures available to smaller reporting companies until the last day of the fiscal year in which (i) the market
value of our common stock held by non-affiliates exceeds $250 million as of the end of that year’s second fiscal quarter and our
annual revenue exceeds $100 million during such completed fiscal year, or (ii) the market value of our common stock held by non-affiliates
exceeds $700 million, regardless of our annual revenue, as of the end of that year’s second fiscal quarter.
Corporate Information
Our principal executive offices are located at
100 Campus Drive, Florham Park, New Jersey 07932 and the telephone number of our principal executive offices is (608) 441-8120. We maintain
a website at www.cellectar.com. The information included or referred to on, or accessible through, our website does not constitute
part of, and is not incorporated by reference into, this prospectus.
THE OFFERING
Common stock offered by us |
Shares of common stock having an aggregate offering price of up to $75,000,000. |
|
|
Plan of Distribution |
“At the market” offering that may be made from time to time through our sales agent, Piper Sandler. See “Plan of Distribution” on page 20 of this prospectus. |
|
|
Use of Proceeds |
Our management will retain broad discretion regarding the allocation and use of the net proceeds from this offering. We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including for the advancement of our primary product candidate, iopofosine I 131, preclinical studies and clinical trials and working capital. See “Use of Proceeds” on page 11 of this prospectus. |
|
|
Risk Factors |
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus and the other information included in, or incorporated by reference into, this prospectus for a discussion of certain factors that you should carefully consider before deciding to invest in shares of our common stock. |
|
|
Nasdaq Capital Market symbol |
“CLRB” |
RISK FACTORS
Investing in our common
stock involves risk. You should carefully consider the specific risks discussed below, together with all the other information contained
in this prospectus or incorporated by reference into this prospectus. You should also consider the risks, uncertainties and assumptions
discussed under the caption “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2023,
and in subsequent filings, which are incorporated by reference into this prospectus. These risk factors may be amended, supplemented
or superseded from time to time by other reports we file with the SEC in the future. These risks and uncertainties are not the only risks
and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may
also impair our business. If any of the risks or uncertainties described in our SEC filings or any additional risks and uncertainties
actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case,
the trading price of our securities could decline and you might lose all or part of your investment.
Risks Related to This Offering
We have broad discretion in the use
of the net proceeds from this offering.
Our management will have broad
discretion in the application of the net proceeds from this offering and could spend the proceeds in ways with which you may not agree.
Accordingly, you will be relying on the judgment of our management with regard to the use of the net proceeds, and you will not have the
opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that the
net proceeds will be invested or otherwise used in a way that does not yield a favorable, or any, return for the Company.
Investors in this offering may experience
immediate and substantial dilution in the net tangible book value per share of the common stock they purchase.
The price per share of our
common stock being offered may be higher than the net tangible book value per share of our common stock, and as such, you may suffer substantial
dilution in the net tangible book value of the common stock you purchase in this offering. In addition, we have a significant number of
options outstanding. If the holders of these options exercise such options, you may incur further dilution.
Our stockholders may experience significant
dilution as a result of future equity offerings and exercise of outstanding options.
In order to raise additional
capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable for our
common stock. We cannot assure you that we will be able to sell shares or other securities in any other offering at a price per share
that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other securities
in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common
stock or other securities convertible into or exchangeable for our common stock in future transactions may be higher or lower than the
price per share in this offering.
In addition, we have a
number of securities allowing the purchase of our common stock. As of March 31, 2024, there were 6,677,045 shares of common stock
issuable upon conversion of preferred stock. As of that date, there were also warrants to purchase 12,529,916 shares of our common
stock. The exercise of outstanding options having an exercise price per share that is less than the offering price per share in this
offering will increase dilution to investors in this offering.
It is not possible to predict the
actual number of shares we will sell under the Equity Distribution Agreement or aggregate proceeds resulting from sales made under the
Equity Distribution Agreement.
Subject to certain limitations
in the Equity Distribution Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to Piper
Sandler at any time throughout the term of the Equity Distribution Agreement. The number of shares that are sold through or to Piper Sandler
after delivering a placement notice will fluctuate based on a number of factors, including the market price of our common stock during
the sales period, any limits we may set with Piper Sandler in any applicable placement notice and the demand for our common stock. Because
the price per share of each share sold pursuant to the Equity Distribution Agreement will fluctuate over time, it is not currently possible
to predict the actual number of shares that will be sold or the aggregate proceeds to be raised in connection with sales under the Equity
Distribution Agreement.
The common stock offered hereby will
be sold in “at-the-market offerings” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares
in this offering at different times will likely pay different prices, and accordingly may experience different levels of dilution and
different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and number
of shares sold in this offering. In addition, subject to the final determination by our board of directors or any restrictions we may
place in any applicable placement notice, there is no minimum or maximum sales price for shares to be sold in this offering. Investors
may experience a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the
prices they paid.
We do not intend to pay dividends
on our common stock, so any returns will be limited to the value of our stock.
We currently anticipate that
we will retain future earnings for the development, operation and expansion of our business and do not anticipate declaring or paying
any cash dividends for the foreseeable future. Any return to stockholders will therefore be limited to the appreciation of their stock.
The price of our common stock may
be volatile and fluctuate substantially, which could result in substantial losses for purchasers of our common stock in this offering.
Our stock price has been
and is likely to remain volatile. The stock market in general, and the market for biopharmaceutical companies in particular, have
experienced extreme volatility that has often been unrelated to the operating performance or prospects of particular companies. As a
result of this volatility, you may not be able to sell your common stock at or above a recently reported price, or at all. The
market price for our common stock may be influenced by many factors, including:
| · | the commencement, enrollment or results of our ongoing or future clinical trials, or changes in the development
status of our product candidates; |
| · | any delay in our regulatory filings for our product candidates and any adverse development or perceived
adverse development with respect to the applicable regulatory authority’s review of such filings, including without limitation the
FDA’s issuance of a “refusal to file” letter or a request for additional information; |
| · | adverse results or delays in clinical trials; |
| · | our decision to initiate a clinical trial, not to initiate a clinical trial or to terminate an existing
clinical trial; |
| · | adverse regulatory decisions, including failure to receive regulatory approval of our product candidates; |
| · | our failure to commercialize our product candidates; |
| · | unanticipated serious safety concerns related to the use of our product candidates; |
| · | the size and growth of our target markets; |
| · | the success of competitive products or technologies; |
| · | regulatory actions with respect to our product candidates or our competitors’ products or product
candidates; |
| · | announcements by us or our competitors of significant acquisitions, strategic collaborations, joint ventures,
collaborations or capital commitments; |
| · | regulatory or legal developments in the United States and other countries applicable to our product candidates,
including but not limited to clinical trial requirements for approvals; |
| · | our inability to obtain adequate product supply for any approved product or inability to do so at acceptable
prices; |
| · | developments or disputes concerning patent applications, issued patents or other proprietary rights; |
| · | the recruitment or departure of key personnel; |
| · | the level of expenses related to our product candidates or clinical development programs; |
| · | the results of our efforts to discover, develop, acquire or in-license product candidates; |
| · | actual or anticipated changes in estimates as to financial results, development timelines or recommendations
by securities analysts or publications of research reports about us or our industry; |
| · | variations in our annual or quarterly financial results or those of companies that are perceived by investors
to be similar to us; |
| · | fluctuations in the valuation of companies perceived by investors to be comparable to us; |
| · | share price and volume fluctuations attributable to inconsistent trading volume levels of our shares; |
| · | announcement or expectation of additional financing efforts |
| · | sales of our common stock by us, our directors, officers or their affiliated funds or our other stockholders; |
| · | changes in the structure of healthcare payment systems; |
| · | significant lawsuits, including intellectual property or stockholder litigation; |
| · | market conditions in the pharmaceutical and biotechnology sectors; |
| · | general economic, industry and market conditions; |
| · | other events or factors, many of which are beyond our control, or unrelated to our operating performance
or prospects; and |
| · | the other factors described in the “Risk Factors” sections of our Annual Report on Form 10-K
for the year ended December 31, 2023, and in subsequent filings, which are incorporated by reference into this prospectus. |
In addition, the stock market
in general, and Nasdaq and biotechnology companies in particular, have experienced extreme price and volume fluctuations that have often
been unrelated or disproportionate to the operating performance of these companies. Broad market and industry factors may negatively affect
the market price of our common stock, regardless of our actual operating performance.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus includes and
incorporates by reference “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform
Act of 1995 and releases issued by the SEC and within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange
Act. Any statements contained herein that are not statements of historical facts may be deemed to be forward-looking statements.
In some cases, you can identify forward-looking
statements by terminology, such as “expects,” “anticipates,” “intends,” “estimates,” “plans,”
“believes,” “seeks,” “may,” “should,” “could,” “would,” or the
negative of such terms or other similar expressions. The forward-looking statements in this prospectus are only predictions. We have based
these forward-looking statements largely on our current expectations and projections about future events and financial trends that we
believe may affect our business, financial condition and results of operations. These forward-looking statements speak only as of the
date of this prospectus and are subject to a number of risks, uncertainties and assumptions described in the section titled “Risk
Factors” and elsewhere in this prospectus. Because forward-looking statements are inherently subject to risks and uncertainties,
some of which cannot be predicted or quantified, you should not rely on these forward-looking statements as predictions of future events.
The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ
materially from those projected in the forward-looking statements. Some of the key factors that could cause actual results to differ from
our expectations include:
| · | our current views with respect to our business strategy, business plan and research and development activities; |
| · | the progress of our product development programs, including clinical testing and the timing of commencement
and results thereof; |
| · | our projected operating results, including research and development expenses; |
| · | our ability to continue development plans for iopofosine I 131 (also known as CLR 131 or simply iopofosine),
CLR 1900 series, CLR 2000 series and CLR 12120; |
| · | our ability to continue development plans for our Phospholipid Drug Conjugates (PDC)™; |
| · | our ability to maintain orphan drug designation in the U.S. for iopofosine as a therapeutic for the treatment
of multiple myeloma, neuroblastoma, osteosarcoma, rhabdomyosarcoma, Ewing’s sarcoma and lymphoplasmacytic lymphoma, and the expected
benefits of orphan drug status; |
| · | any disruptions at our sole supplier of iopofosine; |
| · | our ability to obtain additional funding via the sale of equity and/or debt securities, a strategic transaction
or otherwise; |
| · | our ability to advance our technologies into product candidates; |
| · | our enhancement and consumption of current resources along with ability to obtain additional funding; |
| · | our current view regarding general economic and market conditions, including our competitive strengths; |
| · | uncertainty and economic instability resulting from conflicts, military actions, terrorist attacks, natural
disasters, public health crises, including the occurrence of a contagious disease or illness such as the COVID-19 pandemic, cyber-attacks
and general instability; |
| · | the future impacts of legislative and regulatory developments in the United States on the pricing and
reimbursement of our product candidates; |
| · | our ability to meet the continued listing standards of Nasdaq; |
| · | assumptions underlying any of the foregoing; |
| · | any other statements that address events or developments that we intend or believe will or may occur in
the future; and |
| · | our intended use of proceeds from this offering. |
These statements relate to
future events or to future financial performance and involve known and unknown risks, uncertainties, and other factors that may cause
our actual results, performance, or achievements to be materially different from any future results, performance, or achievements expressed
or implied by these forward-looking statements. Factors that may cause actual results to differ materially from current expectations include,
among other things, those set forth in Part I, Item 1A – “Risk Factors” of our Annual Report on Form 10-K for the year
ended December 31, 2023, and any risks contained in any other documents incorporated by reference herein. Any forward-looking statement
in this prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties, and
assumptions relating to our operations, results of operations, industry, and future growth. Given these uncertainties, you should not
place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these
forward-looking statements for any reason, even if new information becomes available in the future.
You should read this prospectus
and documents we have filed with the SEC that are incorporated by reference and any free writing prospectus that we may authorize for
use in connection with this offering completely and with the understanding that our actual future results may be materially different
from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
USE OF PROCEEDS
We may issue and sell shares
of our common stock having aggregate sales proceeds of up to $75,000,000 from time to time. The amount of proceeds from this offering
will depend upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance
that we will be able to sell any shares under, or fully utilize, the Equity Distribution Agreement with Piper Sandler as a source of financing.
As of the date of this prospectus,
we cannot predict with certainty all of the particular uses for the net proceeds to be received. We currently intend to use the net proceeds
from this offering, if any, for general corporate purposes, including for the advancement of our primary product candidate, iopofosine
I 131, preclinical studies and clinical trials and working capital.
The amounts and timing of
our actual expenditures and the extent of our research and development activities may vary significantly depending on numerous factors,
including the progress of our development efforts, the timing and costs associated with the manufacture and supply of any of our product
candidates and any unforeseen cash needs. As a result, our management will have broad discretion over the use of the net proceeds from
this offering.
Pending the uses described
above, we intend to invest the net proceeds from this offering in interest-bearing, investment-grade securities, certificates of deposit
or government securities.
DILUTION
If you invest in our
common stock, you will experience dilution to the extent of the difference between the price per share you pay in this offering and the
net tangible book value per share of our common stock immediately after this offering. Our net tangible book value as of March 31, 2024
was approximately $26.2 million or $0.79 per share of our common stock. Net tangible book value per share as of March 31, 2024 is equal
to our total tangible assets minus total liabilities, all divided by the number of shares of common stock outstanding as of March 31,
2024.
After giving effect to
the sale of $75,000,000 of shares of our common stock in this offering at an assumed offering price of $3.20 per share, the last reported
sale price of our common stock on the Nasdaq Capital Market on May 22, 2024, and after deducting estimated offering commissions and expenses
payable by us, our as adjusted net tangible book value would have been approximately $98.7 million or $1.74 per share of common stock,
as of March 31, 2024. This represents an immediate increase in net tangible book value of approximately $0.95 per share to existing stockholders
and an immediate dilution of approximately $1.46 per share to investors in this offering. The following table illustrates this calculation
on a per share basis.
Assumed public offering price per share | |
| | | |
$ | 3.20 | |
Net tangible book value per share as of March 31, 2024 | |
$ | 0.79 | | |
| | |
Increase in net tangible book value per share attributable to this offering | |
$ | 0.95 | | |
| | |
As adjusted net tangible book value per share as of March 31, 2024, after giving effect to this offering | |
| | | |
$ | 1.74 | |
Dilution per share to new investors purchasing shares in this offering | |
| | | |
$ | 1.46 | |
The table above assumes
for illustrative purposes that an aggregate of 23,437,500 shares of our common stock are sold at a price of $3.20 per share, the last
reported sale price of our common stock on the NASDAQ Capital Market on May 22, 2024, for aggregate gross proceeds of $75,000,000. The
shares sold in this offering, if any, will be sold from time to time at various prices. An increase of $1.00 per share in the price at
which the shares are sold from the assumed offering price of $3.20 per share shown in the table above, assuming $75,000,000 of shares
of our common stock is sold at that price, would increase our adjusted net tangible book value per share after the offering to $1.93 per
share and would represent an immediate dilution of approximately $2.27 per share to investors in this offering , after deducting commissions
and estimated aggregate offering expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from
the assumed offering price of $3.20 per share shown in the table above, assuming $75,000,000 of shares of our common stock is sold at
that price, would increase our adjusted net tangible book value per share after the offering to $1.46 per share and would represent an
immediate dilution of approximately $0.74 per share to investors in this offering, after deducting commissions and estimated aggregate
offering expenses payable by us. This information is supplied for illustrative purposes only.
The number of shares
of common stock shown above to be outstanding immediately following this offering is based on 33,164,466 shares outstanding as of March
31, 2024 and excludes:
|
· |
2,348,624 shares of common stock, with a weighted-average exercise price of $5.44 per share, issuable upon exercise of stock options outstanding as of March 31, 2024 under our 2021 Stock Incentive Plan; and |
|
· |
118,189 shares of common stock reserved for issuance pursuant to future awards under our 2021 Stock Incentive Plan, plus any future increases in the number of shares of common stock reserved for issuance under our 2021 Stock Incentive Plan pursuant to provisions thereof that automatically increase the share reserve under the plan each year. |
This prospectus also reflects and assumes no exercise
of outstanding options or warrants or conversion of outstanding preferred stock.
The above illustration
of dilution per share to investors participating in this offering assumes no exercise of outstanding options to purchase our common stock.
The exercise of outstanding options having an exercise price per share that is less than the offering price per share in this offering
will increase dilution to investors in this offering.
DESCRIPTION OF CAPITAL STOCK
The following summary describes our capital
stock and the material provisions of our Second Amended and Restated Certificate of Incorporation, as amended, which we refer to as our
certificate of incorporation, our amended and restated by-laws, which we refer to as our bylaws, and the applicable provisions of the
Delaware General Corporation Law, which we refer to as the DGCL. Because the following is only a summary, it does not contain all of the
information that may be important to you. For a complete description, you should refer to our certificate of incorporation and bylaws,
which are included as exhibits to this registration statement. For more information on how you can obtain copies of our certificate of
incorporation and bylaws, see “Where You Can Find More Information.”
Authorized Capital Stock
Our authorized capital stock consists of 170,000,000
shares of common stock, $0.00001 par value per share and 7,000 shares of preferred stock, $0.00001 par value per share. Our certificate
of incorporation authorizes us to issue shares of our preferred stock from time to time in one or more series without stockholder approval,
each such series to have rights and preferences, including voting rights, dividend rights, conversion rights, redemption privileges and
liquidation preferences as our board of directors may determine. The rights of the holders of common stock will be subject to, and may
be adversely affected by, the rights of holders of any preferred stock, including our Series D and Series E Convertible Preferred Stock
and any other series of preferred stock we may issue in the future. The issuance of preferred stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for others to
acquire, or of discouraging others from attempting to acquire, a majority of our outstanding voting stock.
As
of May 14, 2024, there were 35,848,924 shares of common stock outstanding.
Common Stock
Voting. Holders of our common stock
are entitled to one vote per share held of record on all matters to be voted upon by our stockholders. Our common stock does not have
cumulative voting rights. Persons who hold a majority of the outstanding common stock entitled to vote on the election of directors can
elect all of the directors who are eligible for election.
Dividends. Subject to preferences
that may be applicable to the holders of any outstanding shares of our preferred stock, the holders of our common stock are entitled to
receive such lawful dividends as may be declared by our board of directors.
Liquidation and Dissolution. In the
event of our liquidation, dissolution or winding up, and subject to the rights of the holders of any outstanding shares of our preferred
stock, the holders of shares of our common stock will be entitled to receive pro rata all of our remaining assets available for distribution
to our stockholders.
Other Rights and Restrictions. Our
charter prohibits us from granting preemptive rights to any of our stockholders.
Preferred Stock
Series
D Preferred Stock
The
following is a summary of the terms of the Series D Preferred Stock:
Voting
Rights. The Series D Preferred Stock has no voting rights. However, as long as any shares of Series D Preferred Stock are outstanding,
the Company shall not, without the affirmative vote of the holders of a majority of the then outstanding shares of the Series D Preferred
Stock, (a) alter or change adversely the powers, preferences or rights given to the Series D Preferred Stock or alter or amend the Certificate
of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights
of the holders, (c) increase the number of authorized shares of Series D Preferred Stock, or (d) enter into any agreement with respect
to any of the foregoing.
Dividends.
Holders of Series D Preferred Stock are entitled to receive dividends on shares of Series D Preferred Stock equal (on an as-if-converted-to-Common-Stock
basis and without regard to any limitations on conversion set forth herein or otherwise) to and in the same form as dividends actually
paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. No other dividends shall be
paid on shares of Series D Preferred Stock. The Company shall not pay any dividends on the Common Stock unless the Company simultaneously
complies with this provision.
Liquidation.
Upon any liquidation, dissolution or winding-up of the Company, the assets of the Company available for distribution to its stockholders
shall be distributed among the holders of the shares of Series D Preferred Stock in the same amount that a holder of Common Stock would
receive if the Series D Preferred Stock were fully converted (disregarding for such purposes any conversion limitations hereunder) to
Common Stock which amounts shall be paid pari passu with all holders of Common Stock.
Series
E Preferred Stock
The
following is a summary of the terms of the Series E Preferred Stock:
Dividends.
Holders of Series E Preferred Stock are entitled to receive dividends on shares of Series E Preferred Stock equal (on an as-if-converted-to-common-stock
basis and without regard to any limitations on conversion set forth herein or otherwise) to and in the same form as dividends actually
paid on shares of the common stock when, as and if such dividends are paid on shares of the common stock.
Voting
Rights. Subject to certain limitations, the Series E Preferred Stock is voting stock. Holders of the Series E Preferred Stock are
entitled to vote together with the Common Stock on an as-if-converted-to-common-stock basis. Holders of common stock are entitled to one
vote for each share of Common Stock held on all matters submitted to a vote of stockholders. Accordingly, holders of Series E Preferred
Stock will be entitled to one vote for each whole share of common stock into which their Series E Preferred Stock is then-convertible
on all matters submitted to a vote of stockholders.
Liquidation.
The assets of the Company available for distribution to its stockholders shall be distributed among the holders of the shares of Series
E Preferred Stock, Series D Preferred Stock and common stock, pro rata, in the same form of consideration, based on the number of shares
held by each such holder, treating for this purpose all shares of Series E Preferred Stock as if they had been converted to common stock
pursuant to the terms of the Certificate of Designation of Series E Preferred Stock immediately prior to such liquidation, without regard
to any limitations on conversion set forth in the Certificate of Designation of Series E Preferred Stock or otherwise.
Board
Rights. Subject to Nasdaq Stock Market rules and regulation, holders of Series E Preferred Stock have the right to appoint up to two
directors in the Company's Board of Directors, as provided in the Certificate of Designation of Series E Preferred Stock.
Anti-Takeover Effect of Certain
Charter and By-Law Provisions
Provisions of our charter and our by-laws
could make it more difficult to acquire us by means of a merger, tender offer, proxy contest, open market purchases, removal of incumbent
directors and otherwise. These provisions, which are summarized below, are expected to discourage types of coercive takeover practices
and inadequate takeover bids and to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the
benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us outweigh the disadvantages of discouraging takeover or acquisition proposals because negotiation of these proposals
could result in an improvement of their terms.
Authorized but Unissued Stock.
We have shares of common stock and preferred stock available for future issuance, in some cases, without stockholder approval. We may
issue these additional shares for a variety of corporate purposes, including public offerings to raise additional capital, corporate acquisitions,
stock dividends on our capital stock or equity compensation plans. The existence of unissued and unreserved common stock and preferred
stock may enable our board of directors to issue shares to persons friendly to current management or to issue preferred stock with terms
that could render more difficult or discourage a third-party attempt to obtain control of us, thereby protecting the continuity of our
management. In addition, if we issue preferred stock, the issuance could adversely affect the voting power of holders of common stock
and the likelihood that such holders will receive dividend payments and payments upon liquidation.
Amendments to By-laws. Our by-laws
are subject to alternation or repeal, and new by-laws may be made, by a majority of the voting power of all then outstanding shares of
capital stock entitled to vote generally in the election of directors, voting together a single class. Additionally, our by-laws provide
the Board with the power to make, adopt, alter, amend and repeal, from time to time, our by-laws, provided, however, that the stockholders
entitled to vote with respect to amendments to our by-laws may alter, amend or repeal by-laws made by the Board.
Classification of Board;
Removal of Directors; Vacancies. Our certificate of incorporation provide for the division of the Board into three classes
as nearly equal in size as possible with staggered three-year terms; that directors may be removed only for cause by the
affirmative vote of the holders of two-thirds of our shares of capital stock entitled to vote; and that any vacancy on the
Board, however occurring, including a vacancy resulting from an enlargement of the board, may be filled only by the vote of a
majority of the directors then in office. The limitations on the removal of directors and the filling of vacancies could have the
effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, control of us. Our
certificate of incorporation requires the affirmative vote of the holders of at least 75% of our shares of capital stock issued and
outstanding and entitled to vote to amend or repeal any of these provisions.
Notice Periods for Stockholder Meetings.
Our by-laws provide that for business to be brought by a stockholder before an annual meeting of stockholders, the stockholder must give
written notice to the corporation not later than the close of business on the 90th day, or earlier than the 120th day prior to the one
year anniversary of the date of the annual meeting of stockholders of the previous year; provided, however, that in the event that
the annual meeting of stockholders is called for a date that is not within 30 days prior to, or more than 60 days after, such anniversary
date, notice by the stockholder must be received not later than 120 days prior to such annual meeting and not later than the close of
business on the 90th day prior to such annual meeting and the 10th day following the day on which the corporation's notice of the date
of the meeting is first given or made to the stockholders or disclosed to the general public. Our by-laws also provide that the Board
or the Chair of such meeting may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board and
in no event shall the adjournment, recess, postponement, judicial stay or rescheduling of an annual meeting commence a new time period,
or extend any time period, for the giving of notice.
Stockholder Action; Special
Meetings. Our certificate of incorporation provides that stockholder action may not be taken by written action in lieu of a meeting
and provides special meetings of the stockholders may only be called by the Chair of the board, the president or by our Board. These provisions
could have the effect of delaying until the next stockholders' meeting stockholder actions that are favored by the holders of a majority
of our outstanding voting securities. These provisions may also discourage another person or entity from making a tender offer for our
common stock, because that person or entity, even if it acquired a majority of our outstanding voting securities, would be able to take
action as a stockholder only at a duly called stockholders' meeting, and not by written consent. Our certificate of incorporation requires
the affirmative vote of the holders of at least 75% of our shares of capital stock issued and outstanding and entitled to vote to amend
or repeal the provisions relating to prohibition on action by written consent and the calling of a special meeting of stockholders.
Nominations. Our by-laws
provide that nominations for election of directors may be made only by (i) the Board or a committee appointed by the Board; or
(ii) a stockholder entitled to vote on director election, if the stockholder provides notice to the Secretary of the Corporation
presented not less than 90 days nor more than 120 days prior to the anniversary of the last annual meeting (subject to the limited
exceptions set forth in the bylaws). These provisions may deter takeovers by requiring that any stockholder wishing to conduct a
proxy contest have its position solidified well in advance of the meeting at which directors are to be elected and by providing the
incumbent Board with sufficient notice to allow them to put an election strategy in place. Our bylaws also provide that stockholders
seeking to present proposals before a meeting of stockholders to nominate candidates for election as directors at a meeting of
stockholders must provide timely advance notice in writing, and specifies requirements as to the form and content of a
stockholder’s notice.
Choice of Forum. Our bylaws provides that
the Court of Chancery of the state of Delaware shall be the exclusive forum for the following types of actions or proceedings under Delaware
statutory or common law:
| · | any derivative action or proceeding brought on our behalf; |
| · | any action asserting a breach of fiduciary duty; |
| · | any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our
restated certificate, or our amended and restated bylaws; or |
| · | any action asserting a claim against us that is governed by the internal affairs doctrine. |
The provision does not apply to suits
brought to enforce a duty or liability created by the Exchange Act. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction
for federal and state courts over all such Securities Act actions. Accordingly, both state and federal courts have jurisdiction to entertain
such claims.
To prevent having to litigate claims in multiple
jurisdictions and the threat of inconsistent or contrary rulings by different courts, among other considerations, our bylaws provide that
unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States shall be the exclusive
forum for the resolution of any complaint asserting a cause of action arising under the Securities Act.
While the Delaware courts have determined
that such choice of forum provisions are facially valid, a stockholder may nevertheless seek to bring a claim in a venue other than those
designated in the exclusive forum provisions. In such instance, we would expect to vigorously assert the validity and enforceability of
the exclusive forum provisions of our certificate of incorporation. This may require significant additional costs associated with resolving
such action in other jurisdictions and there can be no assurance that the provisions will be enforced by a court in those other jurisdictions.
These exclusive forum provisions may
limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors,
officers, or other employees, which may discourage lawsuits against us and our directors, officers and other employees. If a court were
to find either exclusive-forum provision in our bylaws to be inapplicable or unenforceable in an action, we may incur further significant
additional costs associated with resolving the dispute in other jurisdictions, all of which could seriously harm our business.
Our bylaws further provides that the
federal district courts of the United States of America shall be the exclusive forum for resolving any complaint asserting a cause of
action arising under the Securities Act.
No Cumulative Voting. Delaware
General Corporation Law 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 and bylaws do not provide for
cumulative voting.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Equiniti Trust Company LLC. The transfer agent’s address is 6201 15th Avenue,
Brooklyn, NY 11219, and its telephone number is (718) 921-8300.
Exchange Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “CLRB.”
PLAN OF DISTRIBUTION
We have entered into the
Equity Distribution Agreement with Piper Sandler, under which we may offer and sell our shares of common stock from time to time through
Piper Sandler acting as agent. Pursuant to this prospectus, we may offer and sell up to $75,000,000 of our shares of common stock. Sales
of our shares of common stock, if any, under this prospectus will be made by any method that is deemed to be an “at the market offering”
as defined in Rule 415(a)(4) under the Securities Act.
Each time we wish to issue
and sell shares of common stock under the Equity Distribution Agreement, we will notify Piper Sandler of the number of shares to be issued,
the dates on which such sales are anticipated to be made, any limitation on the number of shares to be sold in any one day and any minimum
price below which sales may not be made. Once we have so instructed Piper Sandler, unless Piper Sandler declines to accept the terms of
such notice, Piper Sandler has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell such shares up to the amount specified on such terms. The obligations of Piper Sandler under the Equity Distribution Agreement
to sell our shares of common stock are subject to a number of conditions that we must meet.
The settlement of sales of
shares between us and Piper Sandler is generally anticipated to occur on the first trading day following the date on which the sale was
made. Sales of our shares of common stock as contemplated in this prospectus will be settled through the facilities of The Depository
Trust Company or by such other means as we and Piper Sandler may agree upon. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
We will pay Piper Sandler
a commission of 3.00% of the aggregate gross proceeds we receive from each sale of our shares of common stock. Because there is no minimum
offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us,
if any, are not determinable at this time. In addition, we have agreed to reimburse Piper Sandler for the fees and disbursements of its
counsel, incurred in connection with the Equity Distribution Agreement, in an amount not to exceed $75,000, in addition to certain ongoing
disbursements of its legal counsel, unless we and Piper Sandler otherwise agree. In accordance with FINRA Rule 5110, these reimbursed
fees and disbursements are deemed underwriting compensation for this offering. We estimate that the total expenses for the offering, excluding
any commissions or ongoing expense reimbursement payable to Piper Sandler under the terms of the Equity Distribution Agreement, will be
approximately $200,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the
sale of such shares. Piper Sandler will provide written confirmation to us before the open on the Nasdaq Capital Market on the day following
each day on which our shares of common stock are sold under the Equity Distribution Agreement. Each confirmation will include the number
of shares of our common stock sold on that day, the volume-weighted average price of the shares sold and the net proceeds to us.
In connection with the sale
of our shares of common stock on our behalf, Piper Sandler will be deemed to be an “underwriter” within the meaning of the
Securities Act, and the compensation of Piper Sandler will be deemed to be underwriting commissions or discounts. We have agreed to indemnify
Piper Sandler against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to
payments Piper Sandler may be required to make in respect of such liabilities.
The offering of our shares
of common stock pursuant to the Equity Distribution Agreement will terminate as permitted therein.
This summary of the material
provisions of the Equity Distribution Agreement does not purport to be a complete statement of its terms and conditions. A copy of the
Equity Distribution Agreement is filed as an exhibit to the registration statement of which this prospectus forms a part.
Our shares of common stock
are listed on the Nasdaq Capital Market and trade under the symbol “CLRB.”
Piper Sandler and its affiliates
may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our
affiliates, for which services they may in the future receive customary fees. In the course of its business, Piper Sandler may actively
trade our securities for its own account or for the accounts of customers, and, accordingly, Piper Sandler may at any time hold long or
short positions in such securities.
A prospectus in electronic
format may be made available on a website maintained by Piper Sandler, and Piper Sandler may distribute the prospectus electronically.
LEGAL MATTERS
Certain legal matters in connection with the securities
offered hereby will be passed upon for us by Sidley Austin LLP, New York, New York. Piper Sandler & Co. is being represented in connection
with this offering by Covington & Burling LLP, New York, New York.
EXPERTS
The consolidated financial
statements of Cellectar Biosciences, Inc. appearing in Cellectar Biosciences, Inc.’s Annual Report on Form 10-K for the year ended
December 31, 2023, have been audited by Baker Tilly US, LLP, independent registered public accounting firm, as set forth in their report
thereon (which contains an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability
to continue as a going concern as described in Note 1 to the consolidated financial statements), included therein, and incorporated herein
by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority
of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”), with respect to
the securities offered by this prospectus. This prospectus does not contain all of the information set forth in the registration statement
and its exhibits and schedules in accordance with SEC rules and regulations. For further information with respect to us and the securities
being offered by this prospectus, you should read the registration statement, including its exhibits and schedules. Statements contained
in this prospectus, including documents that we have incorporated by reference, as to the contents of any contract or other document referred
to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit to the registration statement
or any other such document, each such statement is qualified in all respects by reference to the corresponding exhibit. You should review
the complete contract or other document to evaluate these statements. You may obtain copies of the registration statement and its exhibits
via the SEC’s website at http://www.sec.gov.
We file annual, quarterly
and current reports, proxy statements and other documents with the SEC under the Exchange Act. The SEC maintains a website that contains
reports, proxy and information statements and other information regarding issuers, including us, that file electronically with the SEC.
You may obtain documents that we file with the SEC at http://www.sec.gov. We also make these documents available on our website at www.cellectar.com.
Our website and the information contained or accessible through our website is not incorporated by reference in this prospectus and you
should not consider it part of this prospectus.
INFORMATION INCORPORATED
BY REFERENCE
SEC rules permit us to incorporate
information by reference in this prospectus and any applicable prospectus supplement. This means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is
considered to be part of this prospectus and any applicable prospectus supplement, except for information superseded by information
contained in this prospectus or any applicable prospectus supplement itself or in any subsequently filed incorporated document. This
prospectus and any applicable prospectus supplement incorporate by reference the documents set forth below that we have previously
filed with the SEC, other than information in such documents that is deemed to be furnished and not filed. These documents contain
important information about us and our business and financial condition.
| · | the description of our securities contained in our Registration Statement on Form 8-A filed on April 18, 2016, including any amendment or report filed for the purpose of updating such description. |
All documents that we file (but not those that
we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of
which this prospectus is a part and prior to the effectiveness of the registration statement shall be deemed to be incorporated by reference
into this prospectus and will automatically update and supersede the information in this prospectus, and any previously filed documents.
All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after
the date of this prospectus and prior to the termination of the offering of any of the securities covered under this prospectus shall
be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus,
the applicable prospectus supplement and any previously filed documents.
Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement shall be deemed to be
modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained
in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to
be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement.
Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus
or such applicable prospectus supplement.
You can obtain any of the filings
incorporated by reference into this prospectus or any applicable prospectus supplement through us or from the SEC through the
SEC’s website at http://www.sec.gov. Upon request, we will provide, without charge, a copy of any or all of the reports and
documents referred to above which have been incorporated by reference into this prospectus or any applicable prospectus supplement.
Prospective investors may obtain documents incorporated by reference in this prospectus or any applicable prospectus supplement by
requesting them in writing or by telephone from us at our executive offices at:
Cellectar Biosciences, Inc.
100 Campus Drive
Florham Park, New Jersey 07932
Attention: Chief Financial Officer (608) 441-8120
|
Our reports and documents incorporated by reference
herein may also be found in the “Investors” section of our website at www.cellectar.com. The content of our website and any
information that is linked to or accessible from our website (other than our filings with the SEC that are incorporated by reference,
as set forth under “Information Incorporated by Reference”) is not incorporated by reference into this prospectus or any applicable
prospectus supplement and you should not consider it a part of this prospectus, any applicable prospectus supplement, or the registration
statement.
Up to $75,000,000
Common Stock
PROSPECTUS
Piper Sandler & Co.
__,
2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses
of Issuance and Distribution
The following table sets forth all expenses to
be paid by the registrant, other than estimated underwriting discounts and commissions, in connection with this offering. All amounts
shown are estimates except for the Securities Exchange Commission registration fee:
SEC registration fee | |
$ | 44,280 | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Printing expenses | |
| * | |
Transfer agent and registrar fees | |
| * | |
Trustee fees (including counsel fees) | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
* These fees and
expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time. An estimate of
the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus
supplement.
Item 15. Indemnification
of Directors and Officers
Section 102 of the Delaware General Corporation
Law (the “DGCL”) permits a corporation to eliminate the personal liability of its directors for monetary damages for a breach
of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides that none
of our directors shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation
of liability of directors for breaches of fiduciary duty.
Section 145 of the DGCL provides that a
corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving
at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which
he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in
the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
Our amended and restated
certificate of incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent
permitted by the DGCL. Consequently, our directors are not personally liable to us or our stockholders for monetary damages for any breach
of fiduciary duties as directors, except liability for:
| · | any breach of the director’s duty of loyalty to us or our stockholders; |
| · | any act or omission not in good faith or that involves intentional misconduct or a knowing violation of
law; |
| · | unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174
of the DGCL; or |
| · | any transaction from which the director derived an improper personal benefit. |
Our amended and restated certificate of incorporation
provides that we shall indemnify any and all persons whom we shall have power to indemnify under Section 145 from and against any and
all of the expenses, liabilities or other matters referred to in or covered by Section 145. Our amended and restated certificate of incorporation
provides for the advancement of expenses to each of our directors, officers, employees or agents for the defense of any action for which
indemnification is required or permitted.
We have entered into indemnification agreements
with certain of our directors and our executive officers. These agreements will provide that we will indemnify such directors and officers
to the fullest extent permitted by law and our amended and restated certificate of incorporation.
We also maintain a general liability insurance
policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities
as directors or officers.
Item 16. Exhibits
Exhibit No. |
|
Description |
1.1† |
|
Form(s) of underwriting agreement(s). |
1.2 |
|
Equity Distribution Agreement, dated May 24, 2024, between the Company and Piper Sandler & Co. |
2.1 |
|
Agreement and Plan of Merger by and among Novelos Therapeutics, Inc., Cell Acquisition Corp. and Cellectar, Inc. dated April 8, 2011 (filed as Exhibit 2.1 on Form 8-K on April 11, 2011). |
3.1 |
|
Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on April 11, 2011). |
3.2 |
|
Certificate of Ownership and Merger of Cellectar Biosciences, Inc. with and into Novelos Therapeutics, Inc. (filed as Exhibit 3.1 on Form 8-K on February 13, 2014). |
3.3 |
|
Certificate of Amendment to Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on June 13, 2014). |
3.4 |
|
Certificate of Amendment to Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.2 on Form 8-K on June 19, 2015). |
3.5 |
|
Certificate of Amendment to Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on March 4, 2016). |
3.6 |
|
Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.2 on Form 8-K on June 1, 2017). |
3.7 |
|
Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on July 13, 2018). |
3.8 |
|
Form of Certificate of Designation of Series D Preferred Stock (filed as Exhibit 3.1 on Form 8-K on December 28, 2020) |
3.9 |
|
Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on February 25, 2021). |
3.10 |
|
Certificate of Correction of Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 10-Q on May 10, 2022). |
3.11 |
|
Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on July 21, 2022). |
3.12 |
|
Form of Amended and Restated Bylaws (filed as Exhibit 3.1 on Form 8-K on November 29, 2022 and incorporated herein by reference) |
3.13 |
|
Certificate of Elimination of the Series A Convertible Preferred Stock, the Series B Convertible Preferred Stock and the Series C Convertible
Preferred Stock (filed as Exhibit 3.1 on Form 8-K on September 8, 2023) |
3.14 |
|
Amendment No. 1 to Certificate of Designation of the Series D Preferred Stock (filed as Exhibit 3.2 on Form 8-K on September 8, 2023) |
3.15 |
|
Certificate of Designation of Preferences, Rights and Limitations of the Series E Convertible Voting Preferred Stock (filed as Exhibit
3.3 on Form 8-K on September 8, 2023) |
3.16 |
|
Certificate of Amendment of Second Amended and Restated Certificate of Incorporation (filed as Exhibit 3.1 on Form 8-K on October 27,
2023). |
4.1 |
|
Form of common stock certificate (filed as Exhibit 3.3 on Form S-1/A on November 9, 2011) |
4.2† |
|
Form of Certificate for Preferred Stock. |
4.3† |
|
Form of Certificate of Designation of Preferred Stock. |
4.4† |
|
Form of Warrant Agreement and Warrant Certificate. |
4.5 |
|
Form of Tranche A Warrant (filed as Exhibit 4.1 on Form 8-K on September 8, 2023) |
4.6 |
|
Form of Tranche B Warrant (filed as Exhibit 4.2 on Form 8-K on September 8, 2023) |
4.7 |
|
Form of Indenture (relating to the debt securities registered hereby). |
4.8† |
|
Form of Debt Security. |
4.9† |
|
Form of Rights Agreement(s) (including form of Rights, if any). |
4.10† |
|
Form of Unit Agreement |
5.1 |
|
Opinion of Sidley Austin LLP. |
5.2 |
|
Opinion of Sidley Austin LLP. |
23.1 |
|
Consent of Sidley Austin LLP (included in Exhibits 5.1 and 5.2). |
23.2 |
|
Consent of Baker Tilly US, LLP |
24.1 |
|
Power of Attorney (included in Signature Page). |
25.1†† |
|
Statement of Eligibility of Debt Trustee on Form T-1. |
107 |
|
Calculation of Registration Fee Table. |
† To be filed by amendment
or as exhibit(s) to a Current Report of the Registrant on Form 8-K and incorporated herein by reference, as applicable.
†† To be filed pursuant
to Section 305(b)(2) of the U.S. Trust Indenture Act of 1939, as applicable.
Item 17. Undertakings
(a)
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however, that subparagraphs
(i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The undersigned Registrant undertakes that
in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
Registrant or their securities provided by or on behalf of the undersigned Registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b)
The undersigned Registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act,
each filing of the annual reports of the Registrant pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement, if any, shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15 of this registration statement, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in such the Securities Act and will
be governed by the final adjudication of such issue.
(d)
The undersigned Registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it
was declared effective; and
(2)
For purposes of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(e)
The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City
of Florham Park, State of New Jersey on May 24, 2024.
|
CELLECTAR BIOSCIENCES, INC. |
|
|
|
By: |
/s/ James V. Caruso |
|
|
James V. Caruso |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned directors and officers of
Cellectar Biosciences, Inc. (the Company), hereby severally constitute and appoint James V. Caruso and Chad J. Kolean, and each of them
singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities
indicated below, the registration statement on Form S-3 filed herewith, and any and all pre-effective and post-effective amendments to
said registration statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
in connection with the registration under the Securities Act of 1933, as amended, of equity securities of the Company, and to file or
cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby
ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by
virtue of this Power of Attorney. This Power of Attorney does not revoke any power of attorney previously granted by the undersigned,
or any of them.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on the date
indicated:
Signature |
Title |
Date |
/s/ James V. Caruso |
President and Chief Executive Officer |
May 24, 2024 |
James V. Caruso |
(Principal Executive Officer) |
|
/s/ Chad J. Kolean |
Chief Financial Officer |
May 24, 2024 |
Chad J. Kolean |
(Principal Financial Officer and Principal Accounting Officer) |
|
/s/ Asher Alban Chanan-Khan |
Director |
May 24, 2024 |
Asher Alban Chanan-Khan |
|
|
/s/ Frederick W. Driscoll |
Director |
May 24, 2024 |
Frederick W. Driscoll |
|
|
/s/ Stefan D. Loren, Ph.D. |
Director |
May 24, 2024 |
Stefan D. Loren, Ph.D. |
|
|
/s/ John Neis |
Director |
May 24, 2024 |
John Neis |
|
|
/s/ Douglas J. Swirsky |
Director |
May 24, 2024 |
Douglas J. Swirsky |
|
|
Exhibit 1.2
CELLECTAR BIOSCIENCES, INC.
EQUITY DISTRIBUTION
AGREEMENT
May 24, 2024
PIPER SANDLER & CO.
U.S. Bancorp Center
800 Nicollet Mall
Minneapolis, Minnesota 55402
Ladies and Gentlemen:
As further set forth in this
agreement (this “Agreement”), Cellectar Bioscience, Inc., a company organized under the laws of Delaware (the
“Company”), proposes to issue and sell from time to time through Piper Sandler & Co. (the “Agent”),
as sales agent, the Company’s common stock, par value $0.00001 per share (the “Common Stock”) (such shares
of Common Stock to be sold pursuant to this Agreement, the “Shares”) on terms set forth herein. Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitation set forth in Section 2 of
this Agreement on the number of Shares issued and sold under this Agreement shall be the sole responsibility of the Company, and the Agent
shall have no obligation in connection with such compliance.
The Company hereby confirms
its agreement with the Agent with respect to the sale of the Shares.
1. Representations
and Warranties of the Company.
(a) The
Company represents and warrants to, and agrees with, the Agent that as of the date of this Agreement, each Representation Date (as defined
in Section 3(o) below), each date on which a Placement Notice (as defined in Section 2(a)(i) below) is given (each, a “Notice
Date”), each date on which Shares are sold hereunder (each, an “Applicable Time”), and each Settlement
Date (as defined in Section 2(a)(vii) below) as follows:
(i) Registration
Statement and Prospectus. The Company will file or has filed, in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with the
Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3, including a
base prospectus, relating to certain securities, including the Common Stock, to be issued from time to time by the Company, and
which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”). The Company has prepared a sales agreement prospectus included as part of such registration statement
specifically relating to the offering of the Shares pursuant to this Agreement (the “ATM Prospectus”). The
Company has furnished to the Agent, for use by Agent, copies of the ATM Prospectus relating to the Shares. Except where the context
otherwise requires, such registration statement, as amended when it became effective, including all documents filed as part thereof
or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed
with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant
to Rule 430B or 462(b) of the Securities Act, is herein called the “Registration Statement.” The ATM
Prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be
supplemented by a prospectus supplement, in the form in which such ATM Prospectus and/or prospectus supplement have most recently
been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act, together with any
“issuer free writing prospectus,” as defined in Rule 433 of the Securities Act (“Rule
433”), relating to the Shares, if any, that (i) is required to be filed with the Commission by the Company or (ii) is
exempt from filing pursuant to Rule 433(d)(5)(i), in each case in the form filed or required to be filed with the Commission or, if
not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), is herein called the “Prospectus.”
Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer
to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by
reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Electronic Data Gathering
Analysis and Retrieval System (“EDGAR”).
(ii) Continuing
Effectiveness of Registration Statement. The Registration Statement and any registration statement filed pursuant to Rule 462(b) under
the Securities Act (each, a “Rule 462(b) Registration Statement”) have been declared effective by the Commission
under the Securities Act. The Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional
or supplemental information. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, contemplated
or threatened by the Commission. The Company meets the requirements for use of Form S-3 under the Securities Act. The sale of the Shares
hereunder meets the requirements of General Instruction I.B.1. or I.B.6 of Form S-3.
(iii) No Material Misstatements or Omissions. The Prospectus when filed complied, and as
amended or supplemented, if applicable, will comply in all material respects with the Securities Act. Each of the Registration
Statement, any Rule 462(b) Registration Statement, the Prospectus and any post-effective amendments or supplements thereto, at
the time it became effective or its date, as applicable, and as of each Settlement Date (as defined in Section 2(a)(vii) below),
complied in all material respects with the Securities Act, and as of each effective date and each Settlement Date, did not and will
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as amended or supplemented, as of its date, did not and, as of each
Settlement Date, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and
warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the
Company in writing by the Agent expressly for use therein, it being understood and agreed that the only such information consists of
the information described in Section 5(b). There are no contracts or other documents required to be described in the Prospectus or
to be filed as exhibits to the Registration Statement which have not been described or filed as required.
(iv) Eligible
Issuer. The Company is not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Securities Act with respect to the offering of the Shares contemplated
by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined
in Rule 433 under the Securities Act) related to the offering of the Shares contemplated hereby is solely the property of the Company.
(v) [Reserved.]
(vi) Financial
Statements. The historical financial statements (including the related notes and supporting schedules) to be included or incorporated
by reference, in the Registration Statement, and the Prospectus comply as to form in all material respects with the requirements of Regulation
S-X under the Securities Act (“Regulation S-X”) and present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated and have
been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout
the periods involved. All disclosures contained in the Registration Statement and Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange
Act and Item 10 of Regulation S-K of the Act, to the extent applicable. There are no financial statements (historical or pro forma) that
are required to be included in the Registration Statement or the Prospectus that are not so included as required. The interactive data
in eXtensible Business Reporting Language (“XBRL”) included or incorporated by reference in the Registration
Statement and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(vii) No
Off-Balance Sheet Transactions. There are no transactions, arrangements and other relationships between and/or among the
Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited
to, any structural finance, special purpose or limited purpose entity (each, an “Off-Balance Sheet
Transaction”) that could reasonably be expected to affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those Off Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056;
34-45321; FR-61), and are required to be described in the Prospectus, which have not been described as required.
(viii) Auditor
Independence. Baker Tilly US, LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries
(the “Subsidiaries”), whose report appears in the Registration Statement and the Prospectus, are independent
public accountants as required by the Securities Act and the Public Accounting Oversight Board.
(ix) No
Material Adverse Effect. The Company and each of its Subsidiaries (a complete list of the Subsidiaries is included as Schedule
4 hereto) has been duly organized, validly existing as a corporation and in good standing under the laws of their respective
jurisdictions of organization. The Company and each of its Subsidiaries are, and will be, duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under the laws of each other jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such license or qualification, and have all
corporate power and authority necessary to own or hold their respective properties and to conduct their respective businesses as
described in the Registration Statement and the Prospectus, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
“Material Adverse Effect” shall mean any material adverse change or effect, or any development involving a
prospective material adverse change or effect, on or affecting (i) the business, earnings, assets, liabilities, prospects, condition
(financial or otherwise), operations, general affairs, management, financial position, stockholders’ equity or results of
operations of the Company and the Subsidiaries taken as a whole, or (ii) the ability of the Company to perform its obligations under
this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Prospectus. The
Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries
listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023.
(x) Capitalization. The Company has an authorized capitalization as set forth in each
of the Registration Statement and the Prospectus, and all of the issued shares of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform in all material respects to the description thereof contained in the Registration
Statement and the Prospectus and were not issued in violation of any preemptive right, resale right, right of first refusal or
similar right. All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of
the Company’s capital stock have been duly authorized and validly issued, and conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus. All of the issued shares of capital stock or other
ownership interest of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such
liens, encumbrances, equities or claims as would not, individually or in the aggregate, result in a Material Adverse Effect.
(xi) Due
Authorization, Valid Issuance and Non-Assessiblity of Shares. The Shares to be issued and sold by the Company to the Agent hereunder
have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and non-assessable,
will conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus, will be
issued in compliance with federal and state securities laws and will be free of statutory and contractual preemptive rights, rights of
first refusal and similar rights.
(xii) Authority
to Enter into this Agreement. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations
under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(xiii) Non-Contravention.
The issue and sale of the Shares, the execution, delivery and performance of this Agreement by the Company, the consummation of the transactions
contemplated hereby and the application of the proceeds from the sale of the Shares as described under “Use of Proceeds” in
the Registration Statement and the Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company and its subsidiaries, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject; (ii) result in any violation of the provisions of the articles of association,
charter or by-laws (or similar organizational documents) of the Company or any of its subsidiaries; or (iii) result in any violation
of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), for such conflicts,
breaches, violations, liens, charges, encumbrances or defaults that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(xiv) No Consent or Approval Required. No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets is required for the issue and sale of the Shares, the execution, delivery
and performance of this Agreement by the Company, the consummation of the transactions contemplated hereby, the application of the
proceeds from the sale of the Shares as described under “Use of Proceeds” in the Registration Statement and the
Prospectus, except for (i) the registration of the Shares under the Securities Act; (ii) such consents, approvals, authorizations,
orders, filings, registrations or qualifications as may be required under the Exchange Act, and applicable state or foreign
securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority (the “FINRA”)
in connection with the sale of the Shares by the Agent; and (iii) the inclusion of the Shares on the Nasdaq Capital Market (the “Exchange”).
(xv) Internal
Controls. The Company and each of its subsidiaries maintain a system of “internal controls over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United
States, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of the Company’s financial statements in conformity with generally accepted accounting principles in the United States
and to maintain accountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s
general or specific authorization, (iv) the recorded accountability for the Company’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences, and (v) the interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly present the information
called for in all material respects and are prepared in accordance with the Commission's rules and guidelines applicable thereto. Except
as disclosed in the Registration Statement or the Prospectus, as of the date of the most recent balance sheet of the Company and its consolidated
subsidiaries audited by Baker Tilly US, LLP, there were no “significant deficiencies” or “material weaknesses”
(each as defined by the Public Company Accounting Oversight Board) in the Company’s internal controls over financial reporting,
or any fraud, whether or not material, that involves management or other employees of the Company and its subsidiaries who have a significant
role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s
internal control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting. The Company’s board of directors has, subject to the exceptions,
cure periods and the phase in periods specified in the Exchange rules (“Exchange Rules”), validly appointed
an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange Rules
and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange
Rules.
(xvi) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to
ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management
as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(xvii) Critical Accounting Policies. The section entitled “Critical Accounting Policies” incorporated by reference in the
Registration Statement and the Prospectus accurately describes in all material respects (i) the accounting policies that the Company believes
are the most important in the portrayal of the Company’s financial condition and results of operations and that require management’s
most difficult, subjective or complex judgments (“Critical Accounting Policies”); (ii) the judgments and uncertainties
affecting the application of Critical Accounting Policies; and (iii) the likelihood that materially different amounts would be reported
under different conditions or using different assumptions, and an explanation thereof.
(xviii) Sarbanes-Oxley
Compliance. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply in all materials respects with any provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith that are applicable to the Company or its directors or officers
in their capacities as directors or officers of the Company.
(xix) Exceptions.
Except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, since the date of the latest audited
financial statements included in the Registration Statement and the Prospectus, and, except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has (i) sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, (ii) issued or granted any securities (other than pursuant to employee benefit plans, qualified stock option plans or
other equity compensation plans or arrangements existing on the date hereof and disclosed in the Registration Statement and the Prospectus
(the “Specified Equity Plans”)), (iii) incurred any material liability or obligation, direct or contingent,
other than liabilities and obligations that were incurred in the ordinary course of business, (iv) entered into any material transaction
not in the ordinary course of business, or (v) declared or paid any dividend on its share capital; and since such date, except as disclosed
in the Registration Statement and the Prospectus, there has not been any change in the share capital, long-term debt, net current assets
or short-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results of operations, shareholders’ equity, properties, management,
business or prospects of the Company and its subsidiaries taken as a whole.
(xx) Valid
Title. The Company and each of its subsidiaries have good and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, that are material to the business of the Company, in each case free and clear of all liens,
encumbrances and defects, except such liens, encumbrances and defects as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. All assets held under
lease by the Company and its subsidiaries, that are material to the business of the Company, are held by them under valid, subsisting
and enforceable leases, with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by
the Company and its subsidiaries.
(xxi) Intellectual
Property. The Company and each of its subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual
Property necessary for the conduct of the Company’s and it subsidiaries’ business as now conducted or as proposed to be
conducted, as described in the Registration Statement and the Prospectus, except where the failure to own, possess or acquire such
rights would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Furthermore, except as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by third parties of any such Intellectual Property; (B) there is no
pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s
or any of its subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (C) the Intellectual Property owned by the Company and its subsidiaries, and to
the knowledge of the Company, the Intellectual Property licensed to the Company and its subsidiaries, has not been adjudged invalid
or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (D) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes, misappropriates or
otherwise violates any Intellectual Property or other proprietary rights of others, neither the Company or any of its subsidiaries
has received any written notice of such claim and the Company is unaware of any other fact which would form a reasonable basis for
any such claim; (E) to the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has ever been
in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the
basis of such violation relates to such employee’s employment with the Company nor any of its subsidiaries or actions
undertaken by the employee while employed with the Company or any of its subsidiaries; (F) there is no prior art or public or
commercial activity of which the Company is aware that may render any patent included in the Intellectual Property invalid or that
would preclude the issuance of any patent on any patent application included in the Intellectual Property, which has not been
disclosed to the U.S. Patent and Trademark Office or the relevant foreign patent authority, as the case may be; (G) to the
Company’s knowledge, the issued patents included in the Intellectual Property are valid and enforceable and the Company is
unaware of any facts that would preclude the issuance of a valid and enforceable patent on any pending patent application included
in the Intellectual Property; (H) the Company has taken reasonable steps necessary to secure the interests of the Company in the
Intellectual Property purported to be owned by the Company from all employees, consultants, agents or contractors that developed (in
whole or in part) such Intellectual Property; (I) no government funding, facilities or resources of a university, college, other
educational institution or research center was used in the development of any Intellectual Property that is owned or purported to be
owned by the Company that would confer upon any governmental agency or body, university, college, other educational institution or
research center any claim or right in or to any such Intellectual Property; and (J) to the Company’s knowledge, none of the
technology employed by the Company has been obtained or is being used by the Company in violation of the rights of any entity.
“Intellectual Property” shall mean all patents, patent applications, trade and service marks, trade and
service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, domain names, technology, know-how and
other intellectual property in the United States and foreign jurisdictions.
(xxii)
Health Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and
current registrations, listings, approvals, clearances, licenses, certificates, authorizations or permits and supplements or amendments
thereto issued or required by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their business
(“Permits”), including, without limitation, all such Permits required by the U.S. Food and Drug Administration
(the “FDA”), the U.S. Department of Health and Human Services (“HHS”), the U.S. Centers
for Medicare & Medicaid Services (“CMS”), the European Medicines Agency (“EMA”),
Health Canada or any other comparable state, federal or foreign agencies or bodies to which it is subject, and the Company has not received
any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such Permit, except for such Permits,
the lack of which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxiii) Compliance
with Health Care Laws. The Company and, to the Company’s knowledge, its directors, employees and agents (while acting in
such capacity) are and at all times have been in material compliance with, all health care laws applicable to the Company, or any of
its products or activities, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C.
Section 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31
U.S.C. Section 3729 et seq.), the administrative False Claims Law (42 U.S.C. Section 1320a-7b(a)), the Stark law (42
U.S.C. Section 1395nn), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.)
as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), the
exclusion laws (42 U.S.C. Section 1320a-7), the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.),
the Controlled Substances Act (21 U.S.C. Section 801 et seq.), the Public Health Service Act (42 U.S.C. Section 201 et
seq.), the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Section 263a), Medicare (Title XVIII of the Social Security
Act), Medicaid (Title XIX of the Social Security Act), and the Patient Protection and Affordable Care Act of 2010, as amended by the
Health Care and Education Reconciliation Act of 2010, the regulations promulgated pursuant to such laws, and any other state,
federal or foreign law, accreditation standards, regulation, memorandum, opinion letter, or other issuance which imposes
requirements on manufacturing, development, testing, labeling, advertising, marketing, promotion, distribution, reporting,
kickbacks, patient or program charges, recordkeeping, claims process, documentation requirements, medical necessity, referrals, the
hiring of employees or acquisition of services or supplies from those who have been excluded from government health care programs,
quality, safety, privacy, security, licensure, accreditation or any other aspect of providing health care, clinical laboratory or
diagnostics products or services (collectively, “Health Care Laws”). The Company has not received any
notification, correspondence or any other written or oral communication, including notification of any pending or threatened claim,
suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority, including,
without limitation, the FDA, the EMA, Health Canada, the U.S. Federal Trade Commission, the U.S. Drug Enforcement Administration
(“DEA”), CMS, HHS’s Office of Inspector General, the U.S. Department of Justice and state Attorneys
General or similar agencies of potential or actual non-compliance by, or liability of, the Company under any Health Care Laws,
except, with respect to any of the foregoing, such as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to
give rise to material liability of the Company under any Health Care Laws. The statements with respect to Health Care Laws and the
Company’s compliance therewith included in the Registration Statement and in the Prospectus fairly summarize in all material
respects the matters therein described.
(xxiv) Clinical
Trials. The studies, tests and preclinical and clinical trials conducted by or on behalf of, or sponsored by, the Company, or in
which the Company has participated, that are described in the Registration Statement or the Prospectus, or the results of which are
referred to in the Registration Statement or the Prospectus, were and, if still pending, are being conducted in all material
respects in accordance with protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific
standards for products or product candidates comparable to those being developed by the Company and all applicable statutes, rules
and regulations of the FDA, the EMA, Health Canada and other comparable regulatory agencies outside of the U.S. to which they are
subject, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58, 312, and 812; the descriptions of the results of such
studies, tests and trials contained in the Registration Statement or the Prospectus do not contain any misstatement of a material
fact or omit a material fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or
trials not described in the Registration Statement or the Prospectus the results of which reasonably call into question in any
material respect the results of the studies, tests and trials described in the Registration Statement or Prospectus; and the Company
has not received any notices or other correspondence from the FDA, EMA, Health Canada or any other foreign, state or local
governmental body exercising comparable authority or any Institutional Review Board or comparable authority requiring or threatening
the termination, suspension or material modification of any studies, tests or preclinical or clinical trials conducted by or on
behalf of, or sponsored by, the Company or in which the Company has participated, and, to the Company’s knowledge, there are
no reasonable grounds for the same. Except as disclosed in the Registration Statement and the Prospectus, there has not been any
violation of law or regulation by the Company in its respective product development efforts, submissions or reports to any
regulatory authority that could reasonably be expected to require investigation, corrective action or enforcement action.
(xxv)
Absence of Settlement Agreements or Undertakings. Except as disclosed in the Registration Statement and the Prospectus, the Company
is not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements
with or imposed by any governmental authority.
(xxvi) Absence of Legal or Governmental Proceedings. Except as disclosed in the Registration Statement and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject that, if determined adversely to the Company, would, in the aggregate, reasonably
be expected to have a Material Adverse Effect; and to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others.
(xxvii) Material
Contracts. There are no contracts or other documents required to be described in the Registration Statement or filed as exhibits to
the Registration Statement that are not described and filed as required. The statements made in the Registration Statement and Prospectus,
insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute accurate
summaries of the terms of such contracts and documents in all material respects. Except as disclosed in the Registration Statement and
the Prospectus, neither the Company nor any of its subsidiaries has knowledge that any other party to any such contract or other document
has any intention not to render full performance as contemplated by the terms thereof.
(xxviii) Insurance.
The Company and each of its subsidiaries maintain insurance from nationally recognized, in the applicable country, insurers in such
amounts and covering such risks as is commercially reasonable in accordance with customary practices for companies engaged in
similar businesses and similar industries for the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the
Company and its subsidiaries are in full force and effect; the Company and each of its subsidiaries are in compliance with the terms
of such policies in all material respects; and neither the Company nor any of its subsidiaries has received notice from any insurer
or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue
such insurance; there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a reservation of rights clause; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a Material Adverse Effect.
(xxix) Related
Party Disclosure. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company, on the other hand, that is required to be described in the Registration Statement
or the Prospectus which is not so described.
(xxx) No Labor
Dispute. No labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent that could reasonably be expected to have a Material Adverse Effect.
(xxxi)
No Violation or Default. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries (i) is in violation of its articles of association, charter or by-laws (or similar organizational documents), (ii) is in
default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement,
license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is
subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction
over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii) and (iii),
to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(xxxii) Environmental
Laws. Except as disclosed in the Registration Statement and the Prospectus, the Company and each of its subsidiaries (i) are, and
at all times prior hereto were, in compliance with all laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other
legal requirements of any governmental authority, including without limitation any international, foreign, national, state, provincial,
regional, or local authority, relating to pollution, the protection of human health or safety, the environment, or natural resources,
or to use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”) applicable to such entity, which compliance includes,
without limitation, obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental
Laws to conduct their respective businesses, except for such non-compliance as would not individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, and (ii) have not received notice or otherwise have knowledge of any actual or alleged
violation of Environmental Laws, or of any actual or potential liability for or other obligation concerning the presence, disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants. Except as described in the Registration Statement and
the Prospectus, (x) there are no proceedings that are pending, or to the Company’s knowledge,threatened, against the Company or
any of its subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not
aware of any issues regarding compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities
or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a Material Adverse Effect, and (z) none of the Company and its subsidiaries anticipates material
capital expenditures relating to Environmental Laws.
(xxxiii) Taxes.
The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the
date hereof, subject to permitted extensions, and have paid all taxes due (except where the failure to so file or pay would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect, and except as currently being contested in good faith and for which
reserves have been created), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries, nor does the
Company have any knowledge of any tax deficiencies that have been, or would reasonably be expected to be asserted against the Company,
that would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxxiv) ERISA Compliance.
(i) Each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended
(“ERISA”)) for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended
(the “Code”)) would have any liability (each a “Plan”) has been maintained in compliance
in all material respects with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and
the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject
to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that would result in a material loss to the Company, (B) no “accumulated funding deficiency” (within the
meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C)
the fair market value of the assets under each Plan that is required to be funded exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Company or any member of its Controlled
Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums
to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, to the Company’s knowledge, whether by action or by failure to act, which
would cause the loss of such qualification.
(xxxv) Accuracy
of Statistical and Market Data. The statistical and market-related data included in the Registration Statement and the Prospectus
and the consolidated financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable in all material respects.
(xxxvi) Not an
Investment Company. Neither the Company nor any of its subsidiaries is, and as of the applicable Settlement Date and, after giving
effect to the offer and sale of the Shares and the application of the proceeds therefrom as described under “Use of Proceeds”
in the Registration Statement and the Prospectus, none of them will be, (i) an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”), and the rules and regulations of the Commission thereunder, or (ii) a “business development company”
(as defined in Section 2(a)(48) of the Investment Company Act).
(xxxvii) Accuracy
of Certain Summaries and Statements. The statements set forth or incorporated by reference, as applicable, in each of the Registration
Statement and the Prospectus under the captions “Description of Capital Stock,” and in the Company’s Annual Report on
Form 10-K for the year ended December 31, 2023 under the captions “Legal Proceedings” and “Certain Relationships and
Related Transactions, and Director Independence”, insofar as they purport to summarize the provisions of the laws and documents
referred to therein, are accurate summaries in all material respects.
(xxxviii) Registration
Rights. Except as disclosed in the Registration Statement and the Prospectus, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be owned by such person. There are no contracts, agreements or understandings
to require the Company to include any such securities in the securities proposed to be offered pursuant to this Agreement.
(xxxix) No
Other Brokers. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person
(other than this Agreement) that would give rise to a valid claim against any of them or the Agent for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Shares.
(xl) No
Integration. The Company has not sold or issued any securities that would be integrated with the offering of the Shares contemplated
by this Agreement pursuant to the Securities Act or the interpretations thereof by the Commission.
(xli) Absence
of Stabilization or Manipulation. The Company and its affiliates have not taken, directly or indirectly, any action designed to or
that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Shares.
(xlii) Exchange
Act Registration and Listing of the Common Stock. The shares of Common Stock are registered pursuant to Section 12(b) of the
Exchange Act and listed on the Exchange; the Company has taken no action designed to, or reasonably likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Exchange, nor has the Company received
any notification that the Commission or Exchange is contemplating terminating such registration or listing, except as disclosed in the
Registration Statement and the Prospectus.
(xliii) Offering
Material. The Company has not distributed and prior to any Settlement Date, will not distribute any offering material in connection
with any Placement (as defined in Section 2(a)(i) below), other than any Preliminary Prospectus, the Prospectus, and any Permitted Free
Writing Prospectus to which the Agent has consented.
(xliv) Compliance with Labor Laws. Neither the Company nor any subsidiary is in violation of or has received notice of any violation with
respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor any applicable federal
or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood in which a property is situated,
the violation of any of which could reasonably be expected to have a Material Adverse Effect.
(xlv) No
Unlawful Payments. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, the Organization for Economic Co-operation and Development Convention
on Bribery of Foreign Public Officials in International Business Transactions, and the rules and regulations thereunder and any other
similar foreign or domestic law or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
The Company has instituted and maintains policies and procedures designed to ensure continued compliance with the laws and regulations
referenced in clause (iii) of this paragraph.
(xlvi) Anti-Money
Laundering Compliance. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any applicable related
or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(xlvii) OFAC.
(A) Neither
the Company nor any of its subsidiaries, nor any or their directors, officers or employees, nor, to the Company’s knowledge, any
agent, affiliate or representative of the Company or its subsidiaries, is an individual or entity that is, or is owned or controlled by
an individual or entity that is:
(1) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor
(2) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North
Korea and Syria).
(B) Neither
the Company nor any of its subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other individual or entity:
(1) to
fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of
such funding or facilitation, is the subject of Sanctions; or
(2) in
any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(C) For
the past five years, neither the Company nor any of its subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.
(xlviii) [Reserved.]
(xlix) No
Taxes or Fees Due Upon Issuance. No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including
interest and penalties, are payable on or in connection with the issuance and sale of the Shares by the Company or the execution and delivery
of this Agreement.
(l) No
Immunity. Neither the Company nor any of its subsidiaries, nor any of their respective properties or assets, has any immunity
from the jurisdiction of any court or from any legal process (whether through service or notice, attachment to prior judgment,
attachment in aid of execution or otherwise) under the laws of any jurisdiction in which it is organized, headquartered or doing
business.
(li) No Legal,
Accounting or Tax Advice. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting
advice in connection with the offering and sale of the Shares.
(lii) Certificate
as Representation and Warranty. Any certificate signed by any officer of the Company and delivered to the Agent or the Agent's counsel
in connection with the offering of the Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters
covered thereby.
(liii) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal
Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security
number or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer
or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade
Commission Act, as amended; (iii) “personal data” as defined by GDPR (as defined below); (iv) any information which would
qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any
other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis
of any data related to an identified person’s health or sexual orientation. There have been no material breaches, violations, outages
or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to
notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries
are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation
or modification.
(liv) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take
appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data
privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”).
The Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory
rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that
neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential
violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any
such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action
pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any
Privacy Law.
(lv) eXtensible
Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
2. Purchase,
Sale and Delivery of Shares.
(a) At-the-Market
Sales. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to issue and sell through the Agent as sales agent, and the Agent agrees to use its commercially reasonable
efforts to sell for and on behalf of the Company, the Shares on the following terms and conditions; provided, however, that
any obligation of the Agent to use such commercially reasonable efforts shall be subject to the continuing accuracy of the representations
and warranties of the Company herein, the performance by the Company of its covenants and obligations hereunder and the continuing satisfaction
of the additional conditions specified in Section 4 of this Agreement. The Company acknowledges and agrees that (i) there can be
no assurance that the Agent will be successful in selling Shares, and (ii) the Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Shares for any reason other than a failure by the Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Shares as required under this Section 2.
(i) Each
time that the Company wishes to issue and sell the Shares hereunder (each, a “Placement”), it will notify the
Agent by email notice (or other method mutually agreed to in writing by the parties) (a “Placement Notice”)
containing the parameters in accordance with which it desires the Shares to be sold, which shall at a minimum include the number of Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in
any one Trading Day (as defined below) and any minimum price below which sales may not be made, a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals
from the Company set forth on Schedule 2 (with a copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the Agent set forth on Schedule 2, as such Schedule 2 may be amended
from time to time. The Placement Notice shall be effective upon receipt by the Agent unless and until (i) in accordance with the
notice requirements set forth in Section 2(a)(iii) of this Agreement, the Agent declines to accept the terms contained therein for
any reason, in its sole discretion, (ii) the entire amount of the Shares have been sold, (iii) the Company suspends or terminates
the Placement Notice in accordance with the notice requirements set forth in Section 2(a)(iii) below, (iv) the Company issues a subsequent
Placement Notice with parameters superseding those on the earlier dated Placement Notice, or (v) this Agreement has been terminated
under the provisions of Section 7. The amount of any commission or other compensation to be paid by the Company to the Agent in
connection with the sale of the Shares shall be calculated in accordance with the terms set forth in Section 2(a)(v) below. It is expressly
acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever with respect to a Placement or any
Shares unless and until the Company delivers a Placement Notice to the Agent and the Agent does not decline such Placement Notice pursuant
to the terms set forth above, and then only upon the terms specified therein and herein. In the event of a conflict between the
terms of this Agreement and the terms of the Placement Notice, the terms of the Placement Notice will control. For the purposes hereof,
“Trading Day” means any day on which the Company’s Common Stock is purchased and sold on the principal
market on which the Common Stock is listed or quoted.
(ii) The Shares are
to be sold by the Agent on a daily basis or otherwise as shall be agreed to by the Company and the Agent on any day that is a Trading
Day for the Exchange (other than a day on which the Exchange is scheduled to close prior to its regular weekday closing time). The gross
sales price of the Shares sold under this Section 2(a) shall be the market price for the Company’s Common Stock sold by the Agent
under this Section 2(a) at the time of such sale.
(iii) Notwithstanding
the foregoing, the Company may instruct the Agent by telephone (confirmed promptly by email) not to sell the Shares if such sales
cannot be effected at or above the price designated by the Company in any such instruction. Furthermore, the Company shall not
authorize the issuance and sale of, and the Agent shall not be obligated to use its commercially reasonable efforts to sell, any
Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board of Directors and
notified to the Agent in writing. In addition, the Company or the Agent may, upon notice to the other party hereto by telephone
(confirmed promptly by email), suspend the offering of the Shares, whereupon the Agent shall so suspend the offering of Shares until
further notice is provided to the other party to the contrary; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving
of such notice. Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of
material non-public information, the Company and the Agent agree that (i) no sale of Shares will take place, (ii) the
Company shall not request the sale of any Shares, and (iii) the Agent shall not be obligated to sell or offer to sell any
Shares.
(iv) Subject
to the terms of the Placement Notice, the Agent may sell the Shares by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on or through an Exchange. Subject
to the terms of any Placement Notice, the Agent may also sell Shares in negotiated transactions at market prices prevailing at the time
of sale or at prices related to such prevailing market prices and/or any other method permitted by law, subject to the prior written consent
of the Company.
(v) The
compensation to the Agent for sales of the Shares, as an agent of the Company, shall be 3.0% of the gross sales price of the Shares sold
pursuant to this Section 2(a), payable in cash (the “Sales Commission”); provided that the combined Sales
Commission and reimbursement of the Agent for its out-of-pocket expenses pursuant to Section 3(g), including reasonable fees and disbursements
of the Agent’s counsel, shall not exceed 8.0% of the gross sales price of the Shares. The remaining proceeds, after further deduction
for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales, and reimbursement of expenses
that the Agent may be entitled to pursuant to Section 3(g), shall constitute the net proceeds to the Company for such Shares (the “Net
Proceeds”).
(vi) The
Agent will provide written confirmation to the Company (including by email correspondence to each of the individuals of the Company set
forth on Schedule 2), no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales
of Shares hereunder, setting forth the number of Shares sold on such day, the volume-weighted average price of the Shares sold, and the
Net Proceeds payable to the Company.
(vii) All
Shares sold pursuant to this Section 2(a) will be delivered by the Company to the Agent for the account of the Agent, against
payment of the Net Proceeds therefor, by wire transfer of same-day funds payable to the order of the Company at the offices of Piper
Sandler & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota, or such other location as may be mutually
acceptable, at 9:00 a.m. Central Time on the first full business day following the date on which such Shares are sold, or at
such other time and date as the Agent and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, each such time
and date of delivery being herein referred to as a “Settlement Date.” If the Agent so elects, delivery of
the Shares may be made by credit through full fast transfer to an account or accounts at The Depository Trust Company designated by
the Agent. On each Settlement Date, the Agent will deliver the Net Proceeds in same day funds to an account designated by the
Company on, or prior to, such Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to timely deliver duly authorized Shares on a Settlement Date, the Company agrees that in addition to and
in no way limiting the rights and obligations set forth in Section 5 hereto, it will (i) hold the Agent harmless against
any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company, (ii) reimburse the Agent for any losses incurred by the Agent attributable, directly or
indirectly, to such default and (iii) pay to the Agent any commission or other compensation to which the Agent would otherwise
have been entitled absent such default.
(b) Maximum
Amount. Under no circumstances shall the aggregate number or aggregate value of the Shares sold pursuant to this Agreement exceed:
(i) the aggregate number and aggregate dollar amount of shares of Common Stock available for issuance and sale under the currently effective
Registration Statement (including any limit set forth in General Instruction I.B.6 thereof, if applicable), (ii) the aggregate number
of authorized but unissued shares of Common Stock that are available for issuance under the Company’s certificate of incorporation
or certificate of designation or (iii) the aggregate number or aggregate dollar amount of shares of Common Stock for which the Company
has filed any Prospectus or prospectus supplement in connection with the Shares (the lesser of (i), (ii) and (iii), the “Maximum
Amount”).
(c) No
Association or Partnership. Nothing herein contained shall constitute the Agent as an unincorporated association or partner with the
Company.
(d) Duration.
Under no circumstances shall any Shares be sold pursuant to this Agreement after the date which is three years after the Registration
Statement is first declared effective by the Commission.
(e) Market
Transactions by Agent. The Company acknowledges and agrees that the Agent has informed the Company that the Agent may, to the extent
permitted under the Securities Act, the Exchange Act and this Agreement, purchase and sell shares of Common Stock for its own account
while this Agreement is in effect, provided, that (i) no sale for its own account shall take place while a Placement Notice
is in effect (except to the extent the Agent may engage in sales of Shares purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any such purchases
or sales by the Agent. The Company consents to the Agent trading in the Common Stock for the account of any of its clients at the same
time as sales of the Shares occur pursuant to this Agreement.
3. Covenants
of the Company. The Company covenants and agrees with the Agent as follows:
(a) Amendments
to Registration Statement and Prospectus. After the date of this Agreement and during any period in which a Prospectus relating
to any Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company agrees that it will: (i) notify the Agent
promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference or
amendments not related to the Shares, has been filed with the Commission and/or has become effective or any subsequent supplement to
the Prospectus related to the Shares has been filed and of any request by the Commission for any amendment or supplement to the
Registration Statement (insofar as it relates to the transactions contemplated hereby) or Prospectus or for additional information;
(ii) prepare and file with the Commission, promptly upon the Agent’s written request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable in connection with
the sale of the Shares by the Agent (provided, however, that the failure of the Agent to make such written request shall not
relieve the Company of any obligation or liability hereunder, or affect the Agent’s right to rely on the representations and
warranties made by the Company in this Agreement); (iii) not file any amendment or supplement to the Registration Statement or
Prospectus, other than documents incorporated by reference, relating to the Shares unless a copy thereof has been submitted to the
Agent within a reasonable period of time before the filing and the Agent has not reasonably objected thereto (provided,
however, that (A) the failure of the Agent to make such objection shall not relieve the Company of any obligation or
liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in this
Agreement), (B) the Company has no obligation to provide the Agent any advance copy of such filing or to provide the Agent an
opportunity to object to such filing if the filing does not name the Agent or does not relate to a Placement or other transaction
contemplated hereunder, and (C) the only remedy that the Agent shall have with respect to the failure by the Company to provide
the Agent with such copy or the filing of such amendment or supplement despite the Agent’s objection shall be to cease making
sales under this Agreement); (iv) furnish to the Agent at the time of filing thereof a copy of any document that upon filing is
deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via
EDGAR; and (v) cause each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be
filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act.
(b) Stop
Order. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification
of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose, and
it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such
a stop order should be issued.
(c) Continuing
Amendments. During any period in which a Prospectus relating to the Shares is required to be delivered by the Agent under the
Securities Act with respect to any Placement or pending sale of the Shares, (including in circumstances where such requirement may
be satisfied pursuant to Rule 172 under the Securities Act), the Company will comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or before their respective due dates all reports (taking into account
any extensions available under the Exchange Act) and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If
during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend the offering of
Shares during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense
of the Company) so as to correct such statement or omission or effect such compliance.
(d) Qualification
of the Shares. The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under the securities
laws of such jurisdictions as the Agent reasonably designates and to continue such qualifications in effect so long as required for the
distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation
or to execute a general consent to service of process in any state. The Company shall promptly advise the Agent of the receipt by the
Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(e) Copies
of Registration Statement and Prospectus. The Company will furnish to the Agent and counsel for the Agent copies of the Registration
Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits filed
therewith), the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities
as the Agent may from time to time reasonably request.; provided, however, that the Company shall not be required to furnish any
document to the extent such document is available on EDGAR.
(f) Section
11(a). The Company will make generally available to its security holders as soon as practicable an earnings statement (which need
not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder.
(g) Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or
cause to be paid (i) all expenses (including stock or transfer taxes and stamp or similar duties allocated to the respective
transferees) incurred in connection with the registration, issue, sale and delivery of the Shares, (ii) all expenses and fees
(including, without limitation, fees and expenses of the Company’s accountants and counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and
all amendments, schedules, and exhibits thereto), the Shares, the Prospectus and any amendment thereof or supplement thereto, and
the producing, word-processing, printing, delivery, and shipping of this Agreement and other underwriting documents or closing
documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions) and including the cost to furnish
copies of each thereof to the Agent, (iii) all filing fees, (iv) all reasonable fees and disbursements of the Agent’s counsel
incurred in connection with the qualification of the Shares for offering and sale by the Agent or by dealers under the securities or
blue sky laws of the states and other jurisdictions which the Agent shall designate, (v) the fees and expenses of any transfer agent
or registrar, (vi) the fees and disbursements of Agent's counsel, not to exceed $5,000, in connection
with determining compliance of sales of the Shares with the rules of FINRA, and any filing fee incident to any required filing,
(vii) listing fees, if any, (viii) the cost and expenses of the Company relating to investor presentations or any
“roadshow” undertaken in connection with marketing of the Shares, and (ix) all other reasonable costs and expenses
incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein. In addition to
(iv) and (vi) above, the Company shall reimburse the Agent for its out-of-pocket expenses, including reasonable fees and
disbursements of the Agent’s counsel incurred by Agent in connection with this Agreement, the Registration Statement, the ATM
Prospectus; provided that such fees and disbursements shall not exceed: (A) $75,000 in connection with the filing of the initial ATM
Prospectus pursuant to this Agreement, and (B) $15,000 for each quarter subsequent to the quarter in which the initial ATM
Prospectus was filed.
(h) Use
of Proceeds. The Company will apply the net proceeds from the sale of the Shares in the manner described in the Prospectus.
(i) Restrictions
on Future Sales. During the period beginning on the date a
Placement Notice is delivered to the Agent by the Company and
ending on the Settlement Date of the Shares to be sold pursuant to such Placement Notice or the earlier termination or suspension of
such Placement Notice, the Company will not offer for sale, sell, contract to sell, pledge, grant any option for the sale of, enter
into any transaction which is designed to, or might reasonably be expected to, result in the disposition of Common Stock (whether by
actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate, or
otherwise issue or dispose of, directly or indirectly (or publicly disclose the intention to make any such offer, sale, pledge,
grant, issuance or other disposition), any Common Stock or any securities convertible into or exchangeable for, or any options or
rights to purchase or acquire, Common Stock, or permit the registration under the Securities Act of any Common Stock, such
securities, options or rights, except for: (i) the registration of the Shares and the sales through the Agent pursuant to this
Agreement, (ii) any transaction in which the Agent is a participant or acting as an advisor to or agent of the Company or in some
similar capacity, (iii) sales of shares through any dividend reinvestment and stock purchase plan of the Company, (iv) sales of
shares of restricted stock, restricted stock units and options granted pursuant to employee benefit plans existing as of the date
hereof, and the Common Stock issuable upon the exercise of such outstanding options or vesting of such restricted stock units, (v)
the filing of registration statements on Form S-8, (vi) the issuance or sale of Common Stock issuable upon exchange, conversion or
redemption of securities or the exercise or vesting of warrants or options, in each case described in the Registration Statement and
Prospectus; (vii) modification of any such securities, options or warrants, (viii) issuances or sales of Common Stock in connection
with any research and development collaborations or similar transactions, provided that number of shares of Common Stock issued in
such transactions is equal to or less than 5% of the Company’s outstanding capital stock as of the date of such issuance, and
(ix) the issuance of securities in connection with an acquisition, merger or sale or purchase of assets, in the case of each of (ii)
through (ix), without giving the Agent at least three business days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale, so as to permit the Agent to suspend activity under this Agreement for such period
of time as requested by the Company.
(j) No
Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to, or which
might reasonably be expected to cause or result in, or which constitutes: (i) the stabilization or manipulation of the price of the Common
Stock or any other security of the Company to facilitate the sale or resale of the Shares, (ii) a violation of Regulation M. The Company
shall notify the Agent of any violation of Regulation M by the Company or any of its subsidiaries or any of their respective officers
or directors promptly after the Company has received notice or obtained knowledge of any such violation.
(k) No
Other Broker. The Company will not incur any liability for any finder’s or broker’s fee or agent’s commission (other
than the Sales Commission) in connection with the execution and delivery of this Agreement, or the consummation of the transactions contemplated
hereby.
(l) Timely
Securities Act and Exchange Act Reports. During any prospectus delivery period with respect to the Shares, the Company will use its
commercially reasonable efforts to file on a timely basis with the Commission such periodic and special reports as required by the Securities
Act and the Exchange Act.
(m) Internal
Controls. The Company and its subsidiaries will maintain such controls and other procedures, including without limitation, those required
by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial
officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that
material information relating to Company, including its subsidiaries, is made known to them by others within those entities.
(n) Permitted
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior written consent of the Agent, and the
Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer
relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Securities
Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Agent is hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will
treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing
where required, legending and record keeping.
(o) Representation
Date and Opinions of Counsel. On or prior to the date of the first Placement Notice, and thereafter during the term of this Agreement,
each time the Company (A) files an amendment to the Registration Statement or Prospectus (other than relating solely to the offering of
securities other than the Shares), (B) files an annual report on Form 10-K under the Exchange Act or files its quarterly reports on Form
10-Q under the Exchange Act; and (C) files a report on Form 8-K containing amended financial statements (other than an earnings release)
under the Exchange Act, (each of the dates in (A), (B) and (C) are referred to herein as a “Representation Date”),
the Company shall cause:
(i) Sidley
Austin LLP, counsel for the Company, to furnish to the Agent the opinion and negative assurance letter of such counsel, dated as of such
date and addressed to the Agent, in form and substance reasonably satisfactory to the Agent; provided however, only a negative assurance
letter of such counsel shall be required for each subsequent Representation Date; and
(ii) Michael
Best & Friedrich LLP, intellectual property and patent counsel for the Company, or other intellectual property and patent counsel
for the Company, to furnish to the Agent the opinion of such counsel, dated as of such date and addressed to the Agent, in form and substance
reasonably satisfactory to the Agent; provided however, the opinion of such counsel shall only be required for the first Settlement Date.
Notwithstanding the foregoing
and Sections 3(p) and 3(q) hereof, the requirement to provide counsel opinions, a comfort letter, a CFO certificate, certificates and
other documents shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver
shall continue until the date the Company delivers a Placement Notice to the Agent. Notwithstanding the foregoing, if the Company
subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide the Agent
with the opinions, comfort letter, CFO certificate, certificates and other documents, then before the Agent sells any Shares pursuant
to Section 2(a), the Company shall cause the opinions (including the opinion pursuant to Section 3(o) if not delivered on the date of
the prior Form 10-K), comfort letter, CFO certificate, certificates and documents that would be delivered on a Representation Date to
be delivered. Notwithstanding the foregoing, the Agent could waive any requirement to provide counsel opinions, a comfort letter, CFO
certificate, certificates and/or other documents for any Representation Date for which such documents would otherwise be required.
(p) Representation
Date and Comfort Letter. On or prior to the date of the first Placement Notice and thereafter during the term of this Agreement, on
each Representation Date to which a waiver does not apply, the Company shall cause Baker Tilly US, LLP, or other independent accountants
reasonably satisfactory to the Agent (the “Accountants”), to deliver to the Agent a letter, dated as of such
date and addressed to the Agent, confirming that they are independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation
S-X of the Commission, and stating the conclusions and findings of said firm with respect to the financial information and other matters
covered by its letter in form and substance satisfactory to the Agent of the same tenor as the first such letter received hereunder.
(q) Representation
Date and Representation Certificate. On or prior to the date of the first Placement Notice and thereafter during the term of this
Agreement, on each Representation Date to which a waiver does not apply, the Company shall furnish to the Agent a certificate (the “Representation
Certificate”), substantially in the form of Schedule 3 hereto and dated as of such date, addressed to the Agent and
signed by the chief executive officer and by the chief financial officer of the Company.
(r) Disclosure
of Shares Sold. The Company shall disclose in its quarterly reports on Form 10-Q and in its annual report on Form 10-K the number
of the Shares sold through the Agent under this Agreement, the net proceeds to the Company and the compensation paid by the Company with
respect to sales of the Shares pursuant to this Agreement during the relevant quarter.
(s) Continued
Listing of Shares. The Company shall use its commercially reasonable efforts to maintain the listing of the Common Stock on the Exchange.
(t) Notice
of Changes. At any time during the term of this Agreement, as supplemented from time to time, the Company shall advise the Agent as
soon as practicable after it shall have received notice or obtain knowledge thereof, of any information or fact that would alter or affect
any opinion, certificate, letter and other document provided to the Agent pursuant to this Section 3.
(u) Maximum
Amount. The Company will not instruct the Agent to sell or otherwise attempt to sell Shares pursuant to this Agreement in excess of
the Maximum Amount.
(v) CFO
Certificate. Prior to the date of the first Placement Notice and thereafter during the term of this Agreement, on each Representation
Date to which a waiver does not apply, the Company shall furnish to the Agent a certificate, dated the date of such Representation Date
and addressed to the Agent, of its chief financial officer with respect to certain financial data contained in the Prospectus, providing
“management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent.
4. Conditions
of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy, as of the date of this Agreement,
each Representation Date, each Notice Date, each Applicable Time, and each Settlement Date (in each case, as if made at such date) of
and compliance with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company
of its obligations hereunder and (iii) the following additional conditions:
(a) Continuing
Amendments; No Stop Order. If filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing
Prospectus, is required under the Securities Act, the Company shall have filed the Prospectus (or such amendment or supplement) or
such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on
Rule 424(b)(8) or Rule 164(b) under the Securities Act); the Registration Statement shall be effective; no stop order suspending the
effectiveness of the Registration Statement or any part thereof, any registration statement filed pursuant to Rule 462(b) under the
Securities Act, or any amendment thereof, nor suspending or preventing the use of the Prospectus shall have been issued; no
proceedings for the issuance of such an order shall have been initiated or, to the knowledge of the Company, threatened; and any
request of the Commission for additional information (to be included in the Registration Statement, the Prospectus or otherwise)
shall have been complied with to the Agent's satisfaction.
(b) Absence of Certain Events.
None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of its subsidiaries of any
request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes
any material statement made in the Registration Statement or the Prospectus or any material document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related
Prospectus or such documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading
(c) No Material Misstatement
or Omission. The Agent shall not have advised the Company that the Registration Statement or any the Prospectus, contains an untrue
statement of fact which, in the Agent’s opinion, is material, or omits to state a fact which, in the Agent’s opinion, is material
and is required to be stated therein or necessary to make the statements therein not misleading.
(d) No
Adverse Changes. Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus, neither the Company nor any of its subsidiaries shall have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; and there shall not have been any material change in the capital stock (other than a change
in the number of outstanding shares of Common Stock due to the issuance of shares of Common Stock upon the exercise or vesting of
outstanding options or warrants or awards granted pursuant to any Specified Equity Plan), or any material change in the
short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries, or any development involving a prospective Material Adverse
Effect (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or
other calamity, whether or not covered by insurance, incurred by the Company or any of its subsidiaries, the effect of which, in any
such case described above, in the Agent’s reasonable judgment, makes it impractical or inadvisable to offer or deliver the
Shares on the terms and in the manner contemplated in the Prospectus.
(e) No
Rated Securities. There are no debt securities or preferred shares issued, or guaranteed, by the Company that are rated by a “nationally
recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(f) Compliance
with Certain Obligations. The Company shall have performed each of its obligations under Section 3(o) – 3(q) and Section 3(v).
(g) Opinion
of Agent Counsel. On each Representation Date to which a waiver does not apply, there shall have been furnished to the Agent the opinion
and negative assurance letter of Covington & Burling LLP, counsel for the Agent, dated as of such Representation Date and addressed
to the Agent, in a form reasonably satisfactory to the Agent, and such counsel shall have received such papers and information as they
request to enable them to pass upon such matters; provided however, the opinion of Covington & Burling LLP shall only be required
prior to the first Placement Notice, and thereafter, only a negative assurance letter of such counsel shall be required for each subsequent
Representation Date.
(h) Representation Certificate.
On or prior to the first Placement Notice, the Agent shall have received the Representation Certificate substantially in the form of Schedule
3 hereto.
(i) No Objection by FINRA.
FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) [Reserved].
(k) Additional
Documents and Certificates. The Company shall have furnished to the Agent and the Agent’s counsel such additional documents,
certificates and evidence as they may have reasonably requested.
All opinions, certificates,
letters and other documents described in this Section 4 will be in compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Agent and the Agent’s counsel. The Company will furnish the Agent with such conformed copies of such
opinions, certificates, letters and other documents as the Agent shall reasonably request.
5. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates, directors, officers and employees,
and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities, joint or several, to which the Agent may become subject, under the
Securities Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of
the Company, such consent not to be unreasonably withheld, or without the written consent of the Company if such consent is
unreasonably withheld), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon, in whole or in part:
(i) an
untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Rule 430B Information
(as defined below) and at any subsequent time pursuant to Rules 430A and 430B promulgated under the Securities Act, and any other
information deemed to be part of the Registration Statement at the time of effectiveness, and at any subsequent time pursuant to the Securities
Act or the Exchange Act, and the Prospectus, or any amendment or supplement thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Prospectus), any Permitted Free Writing Prospectus, or any roadshow as defined
in Rule 433(h) under the Securities Act (a “road show”), or an omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii) any
inaccuracy in the representations and warranties of the Company contained herein;
(iii) any
investigation or proceeding by any governmental authority, commenced or threatened with respect to the Company or the matters covered
by the Agreement (whether or not the Agent is a target of or party to such investigation or proceeding);
(iv) any
failure of the Company to perform its respective obligations hereunder or under law;
and will reimburse the Agent
for any legal or other expenses reasonably incurred and documented by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case of (i) through (iv)
to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by the Agent specifically for use in the preparation
thereof. “Rule 430B Information,” as used herein, means information with respect to the Shares and the offering
thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430B.
In addition to its other obligations
under this Section 5(a), the Company agrees that, as an interim measure during the pendency of any claim, action, investigation, inquiry
or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 5(a),
it will reimburse the Agent on a monthly basis for all reasonable and documented legal fees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company’s obligation to reimburse the Agent for such expenses
and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim
reimbursement payments which are not made to the Agent within 30 days of a request for reimbursement shall bear interest at the WSJ Prime
Rate (as published from time to time by the Wall Street Journal).
(b) Agent
Indemnification. The Agent will indemnify and hold harmless the Company, its directors, its officers, who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent of the Agent), but only insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Prospectus, any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in conformity with written information furnished to the Company by the Agent
specifically for use in the preparation thereof, it being understood and agreed that the only information furnished by the Agent for use
in the Registration Statement or the Prospectus consists of the statements set forth in the ninth paragraph under the caption “Plan
of Distribution” in the Prospectus, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending against any such loss, claim, damage, liability or action.
(c) Notice
and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve
the indemnifying party from any liability that it may have to any indemnified party except to the extent such indemnifying party has been
materially prejudiced by such failure. In case any such action shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election
so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal
or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in the sole judgment of the Agent, it is advisable for the Agent to be represented
by separate counsel, the Agent shall have the right to employ a single counsel to represent the Agent, in which event the reasonable fees
and expenses of such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the Agent as incurred (in
accordance with the provisions of the second paragraph in subsection (a) above).
The indemnifying party
under this Section 5 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel as contemplated by this Section 5, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into, and (iii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (a)
includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action,
suit or proceeding and (b) does not include a statement as to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Contribution;
Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 5 is unavailable or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a)
or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and
the Agent on the other from the offering of the Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the Agent on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Agent on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total commissions received by the Agent (before deducting
expenses) from the sale of the Shares. The relative fault shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), the Agent shall not be required
to contribute any amount in excess of the commissions received by it under this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
6. Representations
and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto, including but not limited to the agreements of the Agent and the Company contained in Section 5 hereof, shall remain
operative and in full force and effect regardless of any investigation made by or on behalf of the Agent or any controlling person thereof,
or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Shares to
and by the Agent hereunder.
7. Termination
of this Agreement.
(a) The
Company shall have the right, by giving three (3) days’ written notice as hereinafter specified, to terminate the provisions of
this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except that (i) with respect to any pending sale, through the Agent for the
Company, the obligations of the Company, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding
the termination and (ii) the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect
notwithstanding such termination.
(b) The
Agent shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement relating
to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without liability
of any party to any other party except that the provisions of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in
full force and effect notwithstanding such termination.
(c) Unless
earlier terminated pursuant to this Section 7, this Agreement shall automatically terminate upon the earlier to occur of the issuance
and sale of all of the Shares through the Agent on the terms and subject to the conditions set forth herein, except that the provisions
of Section 3(g), Section 5 and Section 6 of this Agreement shall remain in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 7(a), (b) or (c) above or otherwise by mutual agreement
of the parties; provided that any such termination by mutual agreement shall in all cases be deemed to provide that Section 3(g), Section
5 and Section 6 shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such notice by the Agent or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any sale of the Shares, such sale shall settle in accordance with the provisions
of Section 2(a)(vii) of this Agreement.
8. Default
by the Company. If the Company shall fail at any Settlement Date to sell and deliver the number of Shares which it is
obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Agent or, except as
provided in Section 3(g) hereof, any non-defaulting party. No action taken pursuant to this Section shall relieve the Company
from liability, if any, in respect of such default, and the Company shall (A) hold the Agent harmless against any loss, claim or
damage arising from or as a result of such default by the Company and (B) pay the Agent any commission to which it would otherwise
be entitled absent such default.
9. Notices.
Except as otherwise provided herein, all communications under this Agreement shall be in writing and, if to the Agent, shall be delivered
via overnight delivery services to (i) Piper Sandler & Co., U.S. Bancorp Center, 800 Nicollet Mall, Minneapolis, Minnesota 55402,
Attention: Equity Capital Markets, with a copy to Piper Sandler General Counsel at 800 Nicollet Mall, Minneapolis, MN 55402 and LegalCapMarkets@psc.com;
and (ii) the Company at 100 Campus Drive, Florham Park, New Jersey 07932, Attention: James Caruso, Email: jcaruso@cellectar.net; or in
each case to such other address as the person to be notified may have requested in writing. Any party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
10. Persons
Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and directors referred to in Section 5. Nothing in this Agreement
is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or claim under or in
respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein used shall not include
any purchaser, as such purchaser, of any of the Shares from the Agent.
11. Absence
of Fiduciary Relationship. The Company, having been advised by counsel, acknowledges and agrees that: (a) the Agent has been
retained solely to act as a sales agent in connection with the sale of the Shares and that no fiduciary, advisory or agency
relationship between the Company (including any of the Company’s affiliates (including directors), equity holders, creditors,
employees or agents, hereafter, “Company Representatives”), on the one hand, and the Agent on the other,
has been created or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether
the Agent has advised or is advising the Company on other matters and irrespective of the use of the defined term
“Agent;” (b) neither the Agent nor any of its affiliates (including directors), equity holders, creditors, employees or
agents, hereafter, “Agent Representatives”) shall have any duty or obligation to the Company or any
Company Representative except as set forth in this Agreement; (c) the price and other terms of any Placement executed pursuant to
this Agreement, as well as the terms of this Agreement, are deemed acceptable to the Company and its counsel, following discussions
and arms-length negotiations with the Agent; (d) the Company is capable of evaluating and understanding, and in fact has evaluated,
understands and accepts the terms, risks and conditions of any Placement Notice to be executed pursuant to this Agreement, and any
other transactions contemplated by this Agreement; (e) the Company has been advised that the Agent and the Agent Representatives are
engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Agent and
the Agent Representatives have no obligation to disclose any such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship, or otherwise; (f) the Company has been advised that the Agent is acting, in respect of
any Placement and the transactions contemplated by this Agreement, solely for the benefit of the Agent, and not on behalf of the
Company; and (g) the Company and the Company Representatives waive, to the fullest extent permitted by law, any claims that they may
have against the Agent or any of the Agent Representatives for breach of fiduciary duty or alleged breach of fiduciary duty in
respect of any Placement or any of the transactions contemplated by this Agreement and agree that the Agent and the Agent
Representatives shall have no liability (whether direct or indirect, in contract, tort or otherwise) to the Company or any of the
Company Representatives in respect of any person asserting any claim of breach of any fiduciary duty on behalf of or in right of the
Company or any of the Company Representatives.
12. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that the Agent is a Covered Entity that becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from the Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that the Agent is a Covered Entity or a BHC Act Affiliate of the Agent becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under this Agreement that may be exercised against the Agent are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws
of the United States or a state of the United States.
(c) As
used in this section:
“BHC Act Affiliate” has
the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
“Covered Entity” means
any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
“Default Right” has the
meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable;
and
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
13. Governing
Law and Waiver of Jury Trial. This Agreement and any transaction contemplated by this Agreement and any claim, controversy
or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflict of laws that would results in the application of any other law than the laws of the State
of New York. The Company (on its own behalf and on behalf of its stockholders and
affiliates) hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14. Submission
to Jurisdiction, Etc. Each party hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts sitting
in the Borough of Manhattan, City of New York, in any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any lawsuit, action
or other proceeding in such courts, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such
court that any such lawsuit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
15. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute
one and the same instrument. Counterparts may be delivered via facsimile or electronic mail (including,
without limitation, “pdf”, “tif” or “jpg”) and any counterpart so delivered shall be deemed
to have been duly and validly delivered and be valid and effective for all purposes.
16. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority shall be deemed to refer to
such law, statute, ordinance, code, regulation, rule or other requirement of any governmental authority as amended, reenacted, supplemented
or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated thereunder. This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may not be amended or modified unless
in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party
whom the condition is meant to benefit.
[Signature Pages Follow]
Please
sign and return to the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between the
Company and the Agent in accordance with its terms.
|
Very truly
yours, |
|
|
|
CELLECTAR
BIOSCIENCES, INC. |
|
|
|
By: |
/s/ Chad Kolean |
|
|
Name: Chad Kolean |
|
|
Title: Chief Financial Officer |
Confirmed as of the date first
above mentioned.
PIPER SANDLER & CO. |
|
|
|
By: |
/s/ Connor Leahey |
|
|
Name: Connor Leahey |
|
|
Title: Director |
|
SCHEDULE 1
FORM OF PLACEMENT NOTICE
No Facsimile and No Voicemail
From: |
Cellectar Biosciences, Inc. |
|
|
To: |
Piper Sandler & Co. |
|
|
|
Attention: |
|
|
|
[***] |
|
|
|
[***] |
|
|
|
[***] |
|
|
|
[***] |
|
|
|
[***] |
|
|
|
[***] |
|
|
Date: |
[●], 20[●] |
|
|
Subject: |
Equity Distribution Agreement – Placement Notice |
|
|
Gentlemen: |
|
|
|
Pursuant to the terms and subject to the conditions
contained in the Equity Distribution Agreement between Cellectar Biosciences, Inc. ( “Company”), and Piper Sandler
& Co. ( “Agent”) dated [●], 2024 [(the “Agreement”), the Company hereby requests
that Agent sell up to [●] shares of the Company’s common stock, par value $0.00001 per share, at a minimum market price of
$[¨] per share. Sales should begin on the date of this Placement Notice and shall continue until [¨] /[all shares
are sold].
SCHEDULE 2
NOTICE PARTIES
[Name of Company]
[Authorized Contact]
[Authorized Contact]
[Authorized Contact]
Piper Sandler & Co.
[***]
[***]
[***]
[***]
[***]
[***]
SCHEDULE 3
FORM OF REPRESENTATION CERTIFICATE
PURSUANT TO SECTION 3(q) OF THE AGREEMENT
[Date]
Piper Sandler & Co.
800 Nicollet Mall
Minneapolis, MN 55402
Sir:
The undersigned, the duly qualified and elected
[•] and [•], respectively, of Cellectar Biosciences, Inc., a Delaware corporation (the “Company”), do hereby
certify in such capacity and on behalf of the Company, pursuant to Section 3(q) of the Equity Distribution Agreement, dated [ ],
2024 (the “Equity Distribution Agreement”), between the Company and Piper Sandler & Co., that to the best of the
knowledge of the undersigned:
(i)
The representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made
at and as of the date of the certificate, and the Company has complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the date of the certificate;
(ii)
No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof
or the qualification of the Shares for Registration Statement, nor suspending or preventing the use of the Prospectus or any Permitted
Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the Company’s knowledge,
is contemplated by the Commission or any state or regulatory body;
(iii)
The Shares have been duly and validly authorized by the Company and all corporate action required to be taken for the authorization,
issuance and sale of the Shares has been validly and sufficiently taken;
(iv)
The signers of this certificate have carefully examined the Registration Statement, the Prospectus and any Permitted Free Writing
Prospectus, and any amendments thereof or supplements thereto (including any documents filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus and any Permitted Free Writing Prospectus),
(A) each
part of the Registration Statement and the Prospectus, and any amendments thereof or supplements thereto (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) contain, and contained when such part
of the Registration Statement (or such amendment) became effective, all statements and information required to be included therein,
each part of the Registration Statement, or any amendment thereof, does not contain, and did not contain, when such part of the
Registration Statement (or such amendment) became effective, any untrue statement of a material fact or omit to state, and did not
omit to state when such part of the Registration Statement (or such amendment) became effective, any material fact required to be
stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, does not
include and did not include as of its date, or the time of first use within the meaning of the Securities Act, any untrue statement
of a material fact or omit to state and did not omit to state as of its date, or the time of first use within the meaning of the
Securities Act, a material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading,
(B)
at no time during the period that begins on the earlier of the date of such Prospectus or Permitted Free Writing Prospectus and
the date such Prospectus or Permitted Free Writing Prospectus was filed with the Commission and ends on the date of this certificate did
such Prospectus or Permitted Free Writing Prospectus, as then amended or supplemented, include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading,
(C)
since the date of the Equity Distribution Agreement, there has occurred no event required to be set forth in an amended or supplemented
prospectus which has not been so set forth, and there has been no document required to be filed under the Exchange Act that upon such
filing would be deemed to be incorporated by reference into the Prospectus or any Permitted Free Writing Prospectus that has not been
so filed,
(D)
except as stated in the Prospectus or any Permitted Free Writing Prospectus, the Company has not incurred any material liabilities
or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or
paid any dividends or made any distribution of any kind with respect to its capital stock, and except as disclosed in the Prospectus,
and any Permitted Free Writing Prospectus, there has not been any material change in the capital stock (other than a change in the number
of outstanding Common Stock due to sales of Shares pursuant to the Equity Distribution Agreement and the issuance of shares of Common
Stock upon the exercise or vesting of outstanding options or warrants or awards granted pursuant to any Specified Equity Plan), or any
material change in the short-term or long-term debt, or any Material Adverse Effect or any development involving a prospective Material
Adverse Effect (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or
other calamity, whether or not covered by insurance, incurred by the Company, and
(E)
except as stated in the base prospectus, the Prospectus, and any Permitted Free Writing Prospectus, there is not pending, or, to
the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by
any court or governmental agency, authority or body, or any arbitrator, which if determined adversely to the Company, would reasonably
be expected to result in a Material Adverse Effect.
Capitalized terms used herein without definition
shall have the meanings given to such terms in the Equity Distribution Agreement.
|
CELLECTAR BIOSCIENCES, INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
SCHEDULE 4
SUBSIDIARIES
Cellectar, Inc.
EXHIBIT A
FORM OF COMPANY COUNSEL OPINION
EXHIBIT B
FORM OF COMPANY IP COUNSEL OPINION
Exhibit 4.7
CELLECTAR BIOSCIENCES, INC.
INDENTURE
Dated as of , 20
[ ]
Trustee
TABLE OF CONTENTS
|
|
Page |
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
Section 1.1. |
Definitions. |
1 |
Section 1.2. |
Other Definitions. |
3 |
Section 1.3. |
Incorporation by Reference of Trust Indenture Act. |
4 |
Section 1.4. |
Rules of Construction. |
4 |
|
|
ARTICLE II. THE SECURITIES |
4 |
Section 2.1. |
Issuable in Series. |
4 |
Section 2.2. |
Establishment of Terms of Series of Securities. |
5 |
Section 2.3. |
Execution and Authentication. |
6 |
Section 2.4. |
Registrar and Paying Agent. |
7 |
Section 2.5. |
Paying Agent to Hold Money in Trust. |
7 |
Section 2.6. |
Securityholder Lists. |
7 |
Section 2.7. |
Mutilated, Destroyed, Lost and Stolen Securities. |
8 |
Section 2.8. |
Outstanding Securities. |
8 |
Section 2.9. |
Treasury Securities. |
8 |
Section 2.10. |
Temporary Securities. |
9 |
Section 2.11. |
Cancellation. |
9 |
Section 2.12. |
Defaulted Interest. |
9 |
Section 2.13. |
Global Securities. |
9 |
Section 2.14. |
CUSIP Numbers. |
10 |
|
|
ARTICLE III. REDEMPTION |
10 |
Section 3.1. |
Notice to Trustee. |
10 |
Section 3.2. |
Selection of Securities to be Redeemed. |
11 |
Section 3.3. |
Notice of Redemption. |
11 |
Section 3.4. |
Effect of Notice of Redemption. |
11 |
Section 3.5. |
Deposit of Redemption Price. |
12 |
Section 3.6. |
Securities Redeemed in Part. |
12 |
ARTICLE IV. COVENANTS |
12 |
Section 4.1. |
Payment of Principal and Interest. |
12 |
Section 4.2. |
SEC Reports. |
12 |
Section 4.3. |
Compliance Certificate. |
12 |
Section 4.4. |
Stay, Extension and Usury Laws. |
12 |
|
|
ARTICLE V. SUCCESSORS |
13 |
Section 5.1. |
When Company May Merge, Etc. |
13 |
Section 5.2. |
Successor Corporation Substituted. |
13 |
ARTICLE VI. DEFAULTS AND REMEDIES |
13 |
Section 6.1. |
Events of Default. |
13 |
Section 6.2. |
Acceleration of Maturity; Rescission and Annulment. |
14 |
Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
15 |
Section 6.4. |
Trustee May File Proofs of Claim. |
15 |
Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities. |
16 |
Section 6.6. |
Application of Money Collected. |
16 |
Section 6.7. |
Limitation on Suits. |
16 |
Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest. |
16 |
Section 6.9. |
Restoration of Rights and Remedies. |
17 |
Section 6.10. |
Rights and Remedies Cumulative. |
17 |
Section 6.11. |
Delay or Omission Not Waiver. |
17 |
Section 6.12. |
Control by Holders. |
17 |
Section 6.13. |
Waiver of Past Defaults. |
18 |
Section 6.14. |
Undertaking for Costs. |
18 |
Section 6.15. |
Subordination |
|
|
|
ARTICLE VII. TRUSTEE |
18 |
Section 7.1. |
Duties of Trustee. |
18 |
Section 7.2. |
Rights of Trustee. |
19 |
Section 7.3. |
Individual Rights of Trustee. |
20 |
Section 7.4. |
Trustee’s Disclaimer. |
20 |
Section 7.5. |
Notice of Defaults. |
20 |
Section 7.6. |
Reports by Trustee to Holders. |
20 |
Section 7.7. |
Compensation and Indemnity. |
20 |
Section 7.8. |
Replacement of Trustee. |
21 |
Section 7.9. |
Successor Trustee by Merger, Etc. |
22 |
Section 7.10. |
Eligibility; Disqualification. |
22 |
Section 7.11. |
Preferential Collection of Claims Against Company. |
22 |
|
|
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
22 |
Section 8.1. |
Satisfaction and Discharge of Indenture. |
22 |
Section 8.2. |
Application of Trust Funds; Indemnification. |
23 |
Section 8.3. |
Legal Defeasance of Securities of any Series. |
23 |
Section 8.4. |
Covenant Defeasance. |
24 |
Section 8.5. |
Repayment to Company. |
25 |
Section 8.6. |
Reinstatement. |
25 |
ARTICLE IX. AMENDMENTS AND WAIVERS |
25 |
Section 9.1. |
Without Consent of Holders. |
25 |
Section 9.2. |
With Consent of Holders. |
26 |
Section 9.3. |
Compliance with Trust Indenture Act. |
27 |
Section 9.4. |
Revocation and Effect of Consents. |
27 |
Section 9.5. |
Notation on or Exchange of Securities. |
27 |
Section 9.6. |
Trustee Protected. |
27 |
ARTICLE X. MISCELLANEOUS |
27 |
Section 10.1. |
Trust Indenture Act Controls. |
27 |
Section 10.2. |
Notices. |
28 |
Section 10.3. |
Communication by Holders with Other Holders. |
29 |
Section 10.4. |
Certificate and Opinion as to Conditions Precedent. |
29 |
Section 10.5. |
Statements Required in Certificate or Opinion. |
29 |
Section 10.6. |
Rules by Trustee and Agents. |
29 |
Section 10.7. |
Legal Holidays. |
29 |
Section 10.8. |
No Recourse Against Others. |
29 |
Section 10.9. |
Counterparts. |
29 |
Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
30 |
Section 10.11. |
No Adverse Interpretation of Other Agreements. |
30 |
Section 10.12. |
Successors. |
30 |
Section 10.13. |
Severability. |
30 |
Section 10.14. |
Table of Contents, Headings, Etc. |
30 |
Section 10.15. |
Securities in a Foreign Currency. |
30 |
Section 10.16. |
Judgment Currency. |
31 |
Section 10.17. |
Force Majeure. |
31 |
Section 10.18. |
U.S.A. Patriot Act. |
31 |
|
|
ARTICLE XI. SINKING FUNDS |
32 |
Section 11.1. |
Applicability of Article. |
32 |
Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities. |
32 |
Section 11.3. |
Redemption of Securities for Sinking Fund. |
32 |
CELLECTAR BIOSCIECES, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of , 20
§ 310(a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
|
Not Applicable |
(a)(4) |
|
Not Applicable |
(a)(5) |
|
7.10 |
(b) |
|
7.10 |
§311(a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
Not Applicable |
§312(a) |
|
2.6 |
(b) |
|
10.3 |
(c) |
|
10.3 |
§313(a) |
|
7.6 |
(b)(1) |
|
7.6 |
(b)(2) |
|
7.6 |
(c)(1) |
|
7.6 |
(d) |
|
7.6 |
§314(a) |
|
4.2, 10.5 |
(b) |
|
Not Applicable |
(c)(1) |
|
10.4 |
(c)(2) |
|
10.4 |
(c)(3) |
|
Not Applicable |
(d) |
|
Not Applicable |
(e) |
|
10.5 |
(f) |
|
Not Applicable |
§315(a) |
|
7.1 |
(b) |
|
7.5 |
(c) |
|
7.1 |
(d) |
|
7.1 |
(e) |
|
6.14 |
§316(a) |
|
2.10 |
(a)(1)(A) |
|
6.12 |
(a)(1)(B) |
|
6.13 |
(b) |
|
6.8 |
§317(a)(1) |
|
6.3 |
(a)(2) |
|
6.4 |
(b) |
|
2.5 |
§318(a) |
|
10.1 |
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
Indenture dated as of , 20 between Cellectar Biosciences, Inc.,
a Delaware corporation (“Company”), and [______] (“Trustee”).
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Additional Amounts” means any additional amounts
which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person means any other
person directly or indirectly controlling or controlled by or under common control with such specified person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common
control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.
“Agent” means any Registrar, Paying Agent or Notice
Agent.
“Board of Directors” means the board of directors
of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization
by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means any day except a Saturday,
Sunday or a legal holiday in New York City, New York (or in connection with any payment, the place of payment) on which banking institutions
are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock.
“Company” means the party named as such above until
a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed in
the name of the Company by an Officer.
“Corporate Trust Office” means the office of the
Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally administered.
“Default” means any event which is, or after notice
or passage of time or both would be, an Event of Default.
“Depositary” means, with respect to the Securities
of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depositary
for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall mean the
Depositary with respect to the Securities of such Series.
“Discount Security” means any Security that provides
for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.2.
“Dollars” and “$” means the currency
of The United States of America.
“Exchange Act” means the Securities Exchange Act
of 1934, as amended.
“Foreign Currency” means any currency or currency
unit issued by a government other than the government of The United States of America.
“Foreign Government Obligations” means, with respect
to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed by, the
government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged
and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security” or “Global Securities”
means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of
Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indenture” means this Indenture as amended or supplemented
from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.
“interest” with respect to any Discount Security
which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chief Executive Officer, President,
the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President
of the Company.
“Officer’s Certificate” means a certificate
signed by any Officer.
“Opinion of Counsel” means a written opinion of
legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. The opinion may contain customary
limitations, conditions and exceptions.
“person” means any individual, corporation, partnership,
joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
“principal” of a Security means the principal of
the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer” means any officer of the Trustee
in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity
with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other
debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Senior Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (i) the Company indebtedness (including indebtedness of others guaranteed by the Company),
whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture Securities issued under this Indenture and
denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding
it is provided that this indebtedness is not senior or prior in right of payment to the subordinated Securities; and (ii) renewals,
extensions, modifications and refinancings of any such indebtedness.
“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity” when used with respect to any
Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.
“Subsidiary” of any specified person means any corporation,
association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof.
“TIA” means the Trust Indenture Act of 1939 (15
U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust
Indenture Act as so amended.
“Trustee” means the person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time
there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee
with respect to Securities of that Series.
“U.S. Government Obligations” means securities which
are direct obligations of, or guaranteed by, The United States of America or an agency of the United States of America for the payment
of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depositary receipt.
Section 1.2. Other Definitions.
TERM | |
DEFINED
IN SECTION | |
“Bankruptcy Law” | |
| 6.1 | |
“Custodian” | |
| 6.1 | |
“Event of Default” | |
| 6.1 | |
“Judgment Currency” | |
| 10.16 | |
“Legal Holiday” | |
| 10.7 | |
“mandatory sinking fund payment” | |
| 11.1 | |
“New York Banking Day” | |
| 10.16 | |
“Notice Agent” | |
| 2.4 | |
“optional sinking fund payment” | |
| 11.1 | |
“Paying Agent” | |
| 2.4 | |
“Registrar” | |
| 2.4 | |
“Required Currency” | |
| 10.16 | |
“Specified Courts” | |
| 10.10 | |
“successor person” | |
| 5.1 | |
Section 1.3. Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee”
means the Trustee.
“obligor” on the indenture securities means the
Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein
as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
|
(a) |
a term has the meaning assigned to it; |
|
(b) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
|
(c) |
“or” is not exclusive; |
|
(d) |
words in the singular include the plural, and in the plural include the singular; and |
|
(e) |
provisions apply to successive events and transactions. |
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall
be identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental indenture or an Officer’s
Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities
of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental indenture detailing
the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may
differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled
to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within
the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.24) by or pursuant to a Board Resolution,
and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
2.2.1. the designation or title (which shall distinguish the Securities
of that particular Series from the Securities of any other Series) and ranking (including the terms of any subordination provisions)
of the Series;
2.2.2. the total principal amount of the Series, the denominations
in which the offered Securities will be issued and whether the offering may be reopened for additional Securities of that Series and
on what terms;
2.2.3. the percentage of the principal amount at which the Securities
of the Series will be issued;
2.2.4. the date or dates on which principal will be payable;
2.2.5. the rate or rates (which may be either fixed or variable) and/or,
if applicable, the method of determining such rate or rates of interest, if any, the date or dates from which any interest shall accrue,
or the method of determining such date or dates, and the date or dates on which any interest will be payable;
2.2.6. the terms for redemption, extension or early repayment, if any;
2.2.7. the currencies in which the Series are issued and payable;
2.2.8. the obligation, if any, of the Company to redeem or purchase
the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
2.2.9. whether the amount of payments of principal, interest or premium,
if any, on a Series of the Securities will be determined with reference to an index, formula or other method and how these amounts
will be determined;
2.2.10. the place or places of payment, transfer, conversion and/or
exchange of the Securities;
2.2.11. any restrictive covenants;
2.2.12. whether the Series of Securities are issuable in certified
form;
2.2.13. any provisions for legal defeasance or covenant defeasance;
2.2.14. whether and under what circumstances we will pay Additional
Amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the Securities
rather than pay the Additional Amounts (and the terms of this option);
2.2.15. if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.16. the provisions for convertibility or exchangeability of the
Securities of the Series into or for any other Securities;
2.2.17. whether the Securities are subject to subordination and the
terms of such subordination;
2.2.18. any addition to, deletion of or change in the Events of Default
which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to, deletion of or change in the covenants set
forth in Articles IV or V which applies to Securities of the Series;
2.2.20. any listing of Securities of such Series on any securities
exchange;
2.2.21. the provisions, if any, relating to conversion or exchange
of any Securities of such Series, including if applicable, the conversion or exchange price, the conversion or exchange period, provisions
as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the Company, the events
requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of
Securities are redeemed;
2.2.22. any Depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein;
2.2.23. any other terms of the Series (which may supplement, modify
or delete any provision of this Indenture insofar as it applies to such Series), including any terms that may be required under applicable
law or regulations or advisable in connection with the marketing of Securities of that Series; and
2.2.24. whether any of the Company’s direct or indirect Subsidiaries
will guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees.
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution,
supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s
Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture
hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate complying
with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully;
or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors
and/or vice-presidents or a committee of Responsible Officers shall determine that such action would expose the Trustee to personal liability
to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent
to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of
such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may
be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands to or upon the
Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice Agent”). The
Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give
prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or
Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail
to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands; provided, however, that any appointment of the Trustee as the Notice Agent shall exclude
the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the Company.
The Company may also from time to time designate one or more co-registrars,
additional paying agents or additional notice agents and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent
and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional notice agent. The term “Registrar” includes any co-registrar; the
term “Paying Agent” includes any additional paying agent; and the term “Notice Agent” includes any
additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may be, is appointed prior
to the time Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or
the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will
notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company)
shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the
Securities.
Section 2.6. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise
comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before
each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the
Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
Section 2.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity bond as may be required
by each of them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of a Company Order the Trustee shall authenticate
and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.8. Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company
or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities, whether
by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security (but see Section 2.9 below).
In determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities
of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange
or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall
destroy such canceled Securities (subject to the record retention requirement of the Exchange Act and the Trustee) and deliver a certificate
of such cancellation to the Company upon written request of the Company. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest,
to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and
payment date. At least 10 days before the special record date, the Company shall send to the Trustee and to each Securityholder of the
Series a notice that states the special record date, the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
Section 2.13. Global Securities.
2.13.1. Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued in whole or
in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
A Global Security may not be transferred except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
2.13.2. Legends. Any Global Security issued hereunder shall
bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the Depository Trust Company (“DTC”)
is the Depositary, each Global Note registered in the name of DTC or its nominee shall bear a legend in substantially the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.13.3. Acts of Holders. The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give or take under the Indenture.
2.13.4. Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global
Security shall be made to the Holder thereof.
2.13.5 Consents, Declaration and Directions. The Company, the
Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the Depositary or by the applicable procedures of such Depositary
with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given
by the Holders pursuant to this Indenture.
Section 2.14. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve
the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities
is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities
pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of
Securities to be redeemed. The Company shall give the notice at least 15 days before the redemption date, unless a shorter period is satisfactory
to the Trustee.
Section 3.2. Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities of a Series are to
be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if the Securities are in the form
of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed,
or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and appropriate,
including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case of
Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall be selected from
Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities of the Series that
have denominations larger than $1,000 may be selected for redemption. Securities of the Series and portions of them it selected for
redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2.15, the minimum principal denomination for each Series and the authorized integral multiples
thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities
of that Series called for redemption.
Section 3.3. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more than 60 days before a redemption date,
the Company shall send or cause to be sent by first-class mail or electronically, in accordance with the procedures of the Depositary,
a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) if any Securities are being redeemed in part, the portion
of the principal amount of such Securities to be redeemed and that, after the redemption date and upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be issued in the name of the
Holder thereof upon cancellation of the original Security;
(e) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date unless the Company defaults in the deposit of the redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be required by the terms of the
particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at its expense, provided, however, that the Company has delivered to the Trustee, at least
10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate requesting
that the Trustee give such notice and setting forth the information to be stated in such notice.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is sent as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. Except as
otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate for a Series, a notice of redemption
may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest
to the redemption date.
Section 3.5. Deposit of Redemption Price.
On or before 11:00 a.m., New York City time, on the redemption date,
the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities
to be redeemed on that date.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in
accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York City time, on the applicable payment
date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and interest, if any, on the Securities
of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
To the extent any Securities of a Series are outstanding, the
Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA § 314(a). Reports, information and documents filed with the SEC via the EDGAR system will
be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information and documents to the Trustee under
this Section 4.2 are for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive
or actual notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 4.3. Compliance Certificate.
To the extent any Securities of a Series are outstanding, each
year, the Company shall furnish to the Trustee an Officer’s Certificate stating that to their knowledge the Company is in compliance
with this Indenture and the Securities, or else specifying any Default.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture
or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its properties and assets to, any person (a “successor person”) unless
all of the following conditions are met:
(a) if the Company does not survive such transaction or the Company
conveys, transfers or leases its properties and assets substantially as an entirety, the acquiring company must be a corporation, limited
liability company, partnership or trust, or other corporate form, organized under the laws of any state of the United States or the District
of Columbia, and such company must agree to be legally responsible for our Securities, and, if not already subject to the jurisdiction
of any state of the United States or the District of Columbia, the new company must submit to such jurisdiction for all purposes with
respect to the Securities and appoint an Agent for service of process;
(b) alternatively, the Company must be the surviving Company;
(c) immediately after giving effect to the transaction, no Default
or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation
of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed
transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the Company may consolidate
with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s Certificate nor an Opinion of Counsel
shall be required to be delivered in connection therewith.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation
formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition
is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor Company
in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under
this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
“Event of Default,” wherever used herein with respect
to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture
or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of
that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th
day of such period); or
(b) default in the payment of principal of, or any premium on,
any Security of that Series at its Maturity; or
(c) the Company remains in breach of a covenant in respect of
Securities of the Series for 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(d) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is unable to pay its debts as the same become due;
or
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or substantially
all of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days;
or
(e) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance
with Section 2.2.18.
The term “Bankruptcy Law” means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors.
The term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default has occurred and has not been cured or waived
(other than an Event of Default referred to in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of
not less than 25% in principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter
in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default with respect
to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security
at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment,
if any, when and as due by the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities
of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the compensation, reasonable expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 6.6. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property
on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7;
and
Second: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
No Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that
Series;
it being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional Right of Holders to Receive Principal
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on
such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption,
on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in Section 2.7, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent
the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.12. Control by Holders.
The Holders of a majority in principal amount of the outstanding Securities
of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(c) subject to the provisions of Section 7.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee,
determine that the proceeding so directed would involve the Trustee in personal liability, and
(d) prior to taking any action as directed under this Section 6.12,
the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series, by written notice to the
Trustee and the Company, waive any past Default hereunder with respect to such Series and its consequences, except a Default in the
payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security, including
the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date).
Section 6.15 Subordination
Upon any distribution of our assets upon the Company’s dissolution,
winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any Securities denominated
as subordinated Securities is to be subordinated to the extent provided in this Indenture in right of payment to the prior payment in
full of all Senior Indebtedness, but the Company’s obligation to Holders to make payment of the principal of (and premium, if any)
and interest on such subordinated Securities will not otherwise be affected. In addition, no payment on account of principal (or premium,
if any), interest or sinking fund, if any, may be made on such subordinated Securities at any time unless full payment of all amounts
due in respect of the principal (and premium, if any), interest and sinking fund, if any, on Senior Indebtedness has been made or duly
provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment from
the Company is received by the Trustee in respect of subordinated Securities or by the Holders of any of such subordinated Securities
before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the Holders of the Senior Indebtedness
or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has
been paid in full, after giving effect to any concurrent payment or distribution to the Holders of the Senior Indebtedness. Subject to
the payment in full of all Senior Indebtedness, the Holders of such subordinated Securities will be subrogated to the rights of the Holders
of the Senior Indebtedness to the extent of payments made to the Holders of the Senior Indebtedness out of the distributive share of such
subordinated Securities.
By reason of this subordination, in the event of a distribution of
our assets upon the Company’s insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated
Securities. These subordination provisions will not apply to money and Securities held in trust under the defeasance provisions of this
Indenture.
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates
or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any
such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or not they conform
to the form requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series in accordance with Section 6.12.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by
it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its
rights or powers, if adequate indemnity against such risk is not assured to the Trustee in its satisfaction.
(h) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section and
in Section 7.2, each with respect to the Trustee.
Section 7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed
or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct
does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder without willful misconduct or negligence, and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities
generally or the Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee be liable to any person for
special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The permissive right of the Trustee to take the actions permitted
by this Indenture shall not be construed as an obligation or duty to do so.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustee’s Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and
it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible
Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee
or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Securityholders
of that Series.
Section 7.6. Reports by Trustee to Holders.
Within 60 days after each anniversary of the date of this Indenture,
the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar,
a brief report dated as of such anniversary date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the time of its mailing to Securityholders
of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that Series are listed.
The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on any national securities exchange.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time compensation
for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s
agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee (including for the cost of defending itself) against any cost, expense or liability, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of
its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder, unless and to the
extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification shall apply
to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through willful misconduct
or negligence.
To secure the Company’s payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except
that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the
Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or
more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder
of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under
Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it
for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture prior to such replacement.
Section 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall
be the successor Trustee, subject to Section 7.10.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order be discharged with respect
to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except as hereinafter
provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) either
(i) all Securities of such Series theretofore authenticated
and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities of such Series not theretofore delivered
to the Trustee for cancellation
(1) have become due and payable by reason of sending a notice
of redemption or otherwise, or
(2) will become due and payable at their Stated Maturity within
one year, or
(3) have been called for redemption or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 8.3,
as applicable;
and the Company, in the case of (1), (2) or (3) above, shall
have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations,
which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including mandatory sinking
fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest
are due;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the satisfaction and discharge
contemplated by this Section have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to
clause (a) of this Section, the provisions of Sections 2.4, 2.7, 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money and
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4 and
all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.1, 8.3
or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant
to Sections 8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf
of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Order any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in Sections
8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed
in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have been required to
be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received.
This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under
this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2,
to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all
the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of
principal of and interest on the outstanding Securities of such Series on the Maturity of such principal or installment of principal
or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.5, 2.7, 7.7, 8.2, 8.3, 8.5
and 8.6; and
(c) the rights, powers, trusts and immunities of the Trustee hereunder
and the Company’s obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to
be deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars,
cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal
in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of
a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered
to the Trustee, to pay and discharge each installment of principal of and interest, on and any mandatory sinking fund payments in respect
of all the Securities of such Series on the dates such installments of principal or interest and such sinking fund payments are due;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities
of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after
such date;
(g) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities
of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officer’s
Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(i) the Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated
by this Section have been complied with.
Section 8.4. Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2
to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities of any Series with
any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified therein, any additional
covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default
with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental indenture for such
Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 and designated
as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, but,
except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby; provided that the following
conditions shall have been satisfied:
(a) with reference to this Section 8.4, the Company has irrevocably
deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for
the purpose of making the following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency),
money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance with
their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one
day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities of such Series on
the dates such installments of principal or interest are due;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(c) no Default or Event of Default with respect to the Securities
of such Series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel to the effect that the Holders of the Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and covenant defeasance
had not occurred;
(e) The Company shall have delivered to the Trustee an Officer’s
Certificate stating the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance
contemplated by this Section have been complied with.
Section 8.5. Repayment to Company.
Subject to applicable abandoned property law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for
two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money deposited
with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations
of the Company under this Indenture with respect to the Securities of such Series and under the Securities of such Series shall
be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the Paying
Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if the Company has
made any payment of principal of or interest on or any Additional Amounts with respect to any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture
or the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to add guarantees with respect to Securities of any Series or
secure Securities of any Series;
(e) to surrender any of the Company’s rights or powers under
this Indenture;
(f) to add covenants or events of default for the benefit of the
holders of Securities of any Series;
(g) to comply with the applicable procedures of the applicable
depositary;
(h) to make any change that does not adversely affect the rights
of any Securityholder;
(i) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
or
(k) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
9.2.1. The following types of changes may require specific approval
of all of the Holders:
(a) change the Stated Maturity of the principal of or rate of
interest on a Security;
(b) reduce the principal or any amounts due on a Security;
(c) reduce the amount of principal payable upon acceleration of
the Maturity of a Security following a Default;
(d) at any time after a change of control has occurred, reduce
any premium payable upon a change of control;
(e) unless otherwise described in a supplemental indenture, change
the place or currency of payment on a Security;
(f) impair the right of Holders to sue for payment;
(g) adversely affect any right to convert or exchange a Security
in accordance with its terms;
(h) reduce the percentage of Holders of Securities whose consent
is needed to modify or amend this Indenture;
(i) reduce the percentage of Holders of Securities whose consent
is needed to waive compliance with certain provisions of this Indenture or to waive certain Defaults;
(j) modify any other aspect of the provisions of this Indenture
dealing with supplemental indenture, modification and waiver of past Defaults, changes to the quorum or voting requirements or the wavier
of certain covenants; and
(k) change any obligations the Company has to pay Additional Amounts.
9.2.2. Any other change to this Indenture and the Securities shall
require majority approval:
(a) if the change affects only one Series of Securities,
it must be approved by the Holders of a majority in principal amount of that Series; and
(b) if the change affects more than one Series of Securities
issued under the same indenture, it must be approved by the Holders of a majority in principal amount of all of the Series affected
by the change, with all affected Series voting together as one class for this purpose.
The Holders of a majority in principal amount of all of the Series of
Securities issued under this Indenture, voting together as one class for this purpose, may waive Company compliance obligations with respect
to some covenants in this Indenture. However, the Company cannot obtain a waiver of payment default or any of the matters in Section 9.2.1.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment is set forth in a supplemental indenture or a waiver
becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security
if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type described in Section 9.2.2. In that case, the amendment
or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to give such
consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.5. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about
an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3 new Securities of that Series that
reflect the amendment or waiver.
Section 9.6. Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s Certificate or an Opinion of
Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s
Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its
rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall
control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the other,
or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested), facsimile transmission, email or overnight air courier guaranteeing next day delivery, to the
others’ address:
if to the Company: |
|
|
|
|
Cellectar Biosciences, Inc. |
|
100 Campus Drive |
|
Florham Park, New Jersey 07932 |
|
Telephone: (608) 441-8120 |
|
|
with copies to: |
|
|
|
|
Sidley Austin LLP |
|
787 Seventh Avenue |
|
New York, NY 10019 |
|
Attention: Asher Rubin, Istvan A. Hajdu, Kostian Ciko |
|
Telephone: (212) 839-5599 |
if to the Trustee: |
|
|
|
|
[ ] |
|
Attention: [ ] |
|
Telephone: [ ] |
|
|
with a copy to: |
|
|
|
|
[ ] |
|
Attention: [ ] |
|
Telephone: [ ] |
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be sent electronically
or by first-class mail to his, her or its address shown on the register kept by the Registrar, in accordance with the procedures of the
Depositary. Failure to send a notice or communication to a Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is sent or published in the manner provided
above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice or communication to Securityholders,
it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Security,
where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of a Global Security
(whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security (or its designee) pursuant
to the customary procedures of such Depositary.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA
§ 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture
or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA § 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with;
and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the
provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting
of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
A “Legal Holiday” is any day that is not a Business
Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder (past or present), as
such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and
releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the
original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.
Section 10.10. Governing Law; Waiver of Jury Trial; Consent
to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY
ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF
THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding arising out of or based upon this
Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in New
York City or the courts of the State of New York in each case located in New York City (collectively, the “Specified Courts”),
and each party irrevocably submits to the non exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The
Company, the Trustee and the Holders (by their acceptance of the Securities) each hereby irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree
not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency.
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of
Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal
amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time,
there are outstanding Securities of any Series which are denominated in more than one currency, then the principal amount of Securities
of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be determined by converting any
such other currency into a currency that is designated upon issuance of any particular Series of Securities. Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of the designated
currency as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times is no longer published,
or if such information is no longer available in The Financial Times, such source as may be selected in good faith by the Company) on
any date of determination. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities
of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations provided for in the preceding paragraph
shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the
Trustee and all Holders.
Section 10.16. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the Securities of any Series (the “Required Currency”)
into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could purchase in New York City the Required Currency with
the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in New York
City the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full
amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative
or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment
being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means
any day except a Saturday, Sunday or a legal holiday in New York City on which banking institutions are authorized or required by law,
regulation or executive order to close.
Section 10.17. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware)
services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 10.18. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326
of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to Section 2.2
and except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any other
amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.”
If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by
the terms of the Securities of such Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for
mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable
and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of
Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other
optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such
Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days
prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose
by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to
this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company
Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding
sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash
payment required to be released to the Company.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of Securities) prior to each sinking
fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting
of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular
Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking fund payment date
will be selected in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with Section 3.3.
Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
|
CELLECTAR BIOSCIENCES, INC. |
Exhibit 5.1
|
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5300
+1 212 839 5599 Fax
AMERICA · ASIA PACIFIC
· EUROPE |
|
May 24, 2024
Cellectar Biosciences, Inc.
100 Campus Drive
Florham Park, New Jersey 07932
Re: Registration Statement on Form
S-3
Ladies and Gentlemen:
We refer to the
Registration Statement on Form S-3 (the “Registration Statement”) being filed by Cellectar Biosciences, Inc., a Delaware
corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “Securities Act”), on May 24, 2024, relating to the registration of up to an aggregate
total offering price of $300,000,000 of:
| (a) | shares of the Company’s common stock, $0.00001 par value per share (the “Common Stock”); |
| (b) | shares of the Company’s preferred stock, $0.00001 par value per share (the “Preferred Stock”); |
| (c) | warrants to purchase Common Stock, Preferred Stock or Debt Securities (as defined below) (the “Warrants”); |
| (d) | debt securities of the Company (the “Debt Securities”); |
| (e) | rights to purchase Common Stock, Preferred Stock, Debt Securities or Units (as defined below) (the “Rights”);
and |
| (f) | units (the “Units”), each consisting of two or more types of the securities listed
in clauses (a) through (e) above. |
The Common Stock, the Preferred
Stock, the Warrants, the Debt Securities, the Rights and the Units are collectively referred to herein as the “Securities.”
Unless otherwise specified in the applicable
prospectus supplement:
(1) the Debt Securities will be issued under an indenture (the “Indenture”) to be entered into between the Company
and a trustee (the “Trustee”)
(2) the Warrants will be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the
Company and a warrant agent (the “Warrant Agent”);
(3) any Rights will be issued under a rights agreement (the “Rights Agreement”) to be entered into between the Company
and a rights agent (the “Rights Agent”); and
(4) the Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) to be entered into
between the Company and a unit agent (each, a “Unit Agent”);
in each case substantially in the form
that has been or will be filed as one or more exhibits to the Registration Statement.
This opinion letter
is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Sidley
Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other
Sidley Austin partnerships.
Cellectar Biosciences, Inc.
May 24, 2024
Page
2
We have examined
the Registration Statement, the exhibits thereto, the Company’s Second Amended and Restated Certificate of Incorporation, as amended
to the date hereof (the “Charter”), the amended and restated by-laws of the Company (the “Bylaws”),
and the resolutions (the “Resolutions”) adopted by the board of directors of the Company (the “Board”)
relating to the Registration Statement. We have also examined originals, or copies of originals certified to our satisfaction, of such
agreements, documents, certificates and statements of the Company and others, and have examined such questions of law, as we have considered
relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof
submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation
or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations
of public officials and officers and other representatives of the Company.
Based on and subject
to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1.
With respect to an offering of shares of Common Stock covered by the Registration Statement, such shares of Common Stock will be
validly issued, fully paid and nonassessable, when: (i) the Registration Statement, as finally amended (including any necessary post-effective
amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such shares
of Common Stock, if any shall be required, shall have been filed with the SEC in compliance with the Securities Act and the rules and
regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity
with the Charter, the Bylaws and the Resolutions authorizing the issuance and sale of such shares of Common Stock; and (iv) certificates
representing such shares of Common Stock shall have been duly executed, countersigned and registered and duly delivered in accordance
with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount
not less than the aggregate par value thereof or, if any such shares of Common Stock are to be issued in uncertificated form, the Company’s
books shall reflect the issuance of such shares of Common Stock in accordance with the applicable definitive purchase, underwriting or
similar agreement upon payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof.
2.
The issuance and sale of each series of Preferred Stock covered by the Registration Statement will be duly authorized, and each
share of such series of Preferred Stock will be validly issued, fully paid and nonassessable, when: (i) the Registration Statement, as
finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus
supplement with respect to the sale of such series of Preferred Stock shall have been filed with the SEC in compliance with the Securities
Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions
in conformity with the Charter, the Bylaws and the Resolutions establishing the designations, preferences, rights, qualifications, limitations
or restrictions of such series of Preferred Stock and authorizing the issuance and sale of such series of Preferred Stock; (iv) the Company
shall have filed with the Secretary of State of the State of Delaware a Certificate of Designations with respect to such series of Preferred
Stock in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and in conformity with the
Charter and such final resolutions; and (v) certificates representing such series of Preferred Stock shall have been duly executed, countersigned
and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers
thereof against payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof or, if any shares
of such series of Preferred Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such
shares in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration
therefor in an amount not less than the aggregate par value thereof.
Cellectar Biosciences, Inc.
May 24, 2024
Page
3
3.
Each issue of Warrants covered by the Registration Statement will constitute valid and binding obligations of the Company when:
(i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under
the Securities Act; (ii) a prospectus supplement with respect to such issue of Warrants and the Common Stock, Preferred Stock or Debt
Securities issuable upon exercise of such Warrants shall have been filed with the SEC in compliance with the Securities Act and the rules
and regulations thereunder; (iii) a Warrant Agreement relating to such issue of Warrants shall have been duly authorized, executed and
delivered by the Company and duly executed and delivered by the Warrant Agent named in the Warrant Agreement; (iv) the Board or a duly
authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws and the Resolutions
authorizing the execution and delivery of the Warrant Agreement and the issuance and sale of such issue of Warrants; (v) if such Warrants
are exercisable for Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such Warrants are exercisable
for Preferred Stock, the actions described in paragraph 2 above shall have been taken; (vii) if such Warrants are exercisable for Debt
Securities, the actions described in paragraph 4 below shall have been taken and (viii) certificates representing such issue of Warrants
shall have been duly executed, countersigned and issued in accordance with such Warrant Agreement and shall have been duly delivered in
accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the
agreed consideration therefor.
4. The
Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the Company
when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become
effective under the Securities Act and the Indenture (including any necessary supplemental indenture) shall have been qualified
under the Trust Indenture Act of 1939, as amended (the “TIA”); (ii) a prospectus supplement with respect to such
series of Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations
thereunder; (iii) the Indenture shall have been duly authorized, executed and delivered by the Company and the Trustee; (iv) all
necessary corporate action shall have been taken by the Company to authorize the form, terms, execution, delivery, performance,
issuance and sale of such series of Debt Securities as contemplated by the Registration Statement, the prospectus supplement
relating to such Debt Securities and the Indenture and to authorize the execution, delivery and performance of a supplemental
indenture or officers’ certificate establishing the form and terms of such series of Debt Securities as contemplated by the
Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Debt
Securities shall have been duly executed and delivered by the Company and the Trustee (in the case of such a supplemental indenture)
or by duly authorized officers of the Company (in the case of such an officers’ certificate), in each case in accordance with
the provisions of the Charter, the Bylaws, final resolutions of the Board or a duly authorized committee thereof and the
Indenture; and (vi) the certificates evidencing the Debt Securities of such series shall have been duly executed and delivered by
the Company, authenticated by the Trustee and issued, all in accordance with the Charter, the Bylaws, final resolutions of the Board
or a duly authorized committee thereof, the Indenture and the supplemental indenture or officers’ certificate, as the case may
be, establishing the form and terms of the Debt Securities of such series, and shall have been duly delivered in accordance with the
applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed
consideration therefor.
5.
With respect to an offering of Rights covered by the Registration Statement, such Rights will constitute valid and binding obligations
of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have
become effective under the Securities Act; (ii) a prospectus supplement with respect to such Rights and the Common Stock, Preferred Stock,
Debt Securities or Units, as the case may be, issuable upon exercise of such Rights shall have been filed with the SEC in compliance with
the Securities Act and the rules and regulations thereunder; (iii) a Rights Agreement relating to such Rights shall have been duly authorized,
executed and delivered by the Company and duly executed and delivered by the Rights Agent named in the Rights Agreement; (iv) the Board
or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws and the Resolutions
authorizing the execution and delivery of the Rights Agreement and the execution, delivery, issuance and sale of such Rights; (v) if such
Rights relate to the issuance and sale of Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such
Rights relate to the issuance and sale of Preferred Stock, the actions described in paragraph 2 above shall have been taken; (vii) if
such Rights relate to the issuance and sale of Debt Securities, the actions described in paragraph 4 above shall have been taken; (viii)
if such Rights relate to the issuance and sale of Units, the actions described in paragraph 6 below shall have been taken; and (xi) certificates
representing such Rights shall have been duly executed, countersigned and registered in accordance with the Rights Agreement and shall
have been duly delivered to the purchasers thereof in accordance with the Rights Agreement against payment of the agreed consideration
therefor.
Cellectar Biosciences, Inc.
May 24, 2024
Page
4
6.
With respect to an offering of Units covered by the Registration Statement, such Units will constitute valid and binding obligations
of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have
become effective under the Securities Act; (ii) a prospectus supplement with respect to such Units and the Common Stock, Preferred Stock,
Debt Securities, Warrants or Rights, as the case may be, included as a component of such Units shall have been filed with the SEC in compliance
with the Securities Act and the rules and regulations thereunder; (iii) an Unit Agreement relating to such issue of Units shall have been
duly authorized, executed and delivered by the Company and duly executed and delivered by the Unit Agent named in the Unit Agreement,
(iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws
and the Resolutions authorizing the execution and delivery of the Units Agreement and the execution, delivery, issuance and sale of such
Units; (v) if such Units relate to the issuance and sale of Common Stock, the actions described in paragraph 1 above shall have been taken;
(vi) if such Units relate to the issuance and sale of Preferred Stock, the actions described in paragraph 2 above shall have been taken;
(vii) if such Units relate to the issuance and sale of Warrants, the actions described in paragraph 3 above shall have been taken; (viii)
if such Units relate to the issuance and sale of Debt Securities, the actions described in paragraph 4 above shall have been taken; (ix)
if such Units relate to the issuance and sale of Rights, the actions described in paragraph 5 above shall have been taken; and (x) certificates
representing such Units shall have been duly executed, countersigned and registered and shall have been duly delivered to the purchasers
thereof in accordance with the applicable definitive purchase, underwriting or similar agreement against payment of the agreed consideration
therefor.
Our opinions are
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating
to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding
in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for
money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a
claim with respect to any Debt Securities or other obligations that are denominated or payable other than in United States dollars (or
a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit
the making of payments outside of the United States of America or in a foreign currency.
For the purposes of this letter, we
have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
| (i) | the Securities being offered will be issued and sold as contemplated in the Registration Statement and
the prospectus supplement relating thereto; |
| (ii) | the execution, delivery and performance by the Company of each Indenture, each Warrant Agreement, each
Rights Agreement and each Unit Agreement, as applicable, and the issuance sale and delivery of the Securities will not (A) contravene
or violate the Charter or Bylaws, (B) violate any law, rule or regulation applicable to the Company, (C) result in a default under or
breach of any agreement or instrument binding upon the Company or any order, judgment or decree of any court or governmental authority
applicable to the Company, or (D) require any authorization, approval or other action by, or notice to or filing with, any court or governmental
authority (other than such authorizations, approvals, actions, notices or filings which shall have been obtained or made, as the case
may be, and which shall be in full force and effect); |
Cellectar Biosciences, Inc.
May 24, 2024
Page
5
| (iii) | the authorization thereof by the Company will not have been modified or rescinded, and there will not
have occurred any change in law affecting the validity, legally binding character or enforceability thereof; and |
| (iv) | the Charter and the Bylaws, each as currently in effect, will not have been modified or amended and will
be in full force and effect. |
We have further assumed
that each Warrant Agreement, each Rights Agreement, each Unit Agreement, each Warrant, each Right, each Unit, each Indenture, each indenture
supplement to the Indenture and each Debt Security will be governed by the laws of the State of New York.
With respect to
each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”),
we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person)
was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the
laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and
authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed
and delivered by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement
or obligation, as the case may be, of, each party thereto.
This opinion letter
is limited to the DGCL and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion
as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of
America or any state securities or blue sky laws.
We hereby consent
to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made
a part of the Registration Statement. 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 Securities Act.
|
Very truly yours, |
|
|
|
/s/ Sidley Austin LLP |
|
Sidley Austin LLP |
Exhibit 5.2
|
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5300
+1 212 839 5599 Fax
AMERICA ·
ASIA PACIFIC · EUROPE |
|
May 24, 2024
Cellectar Biosciences, Inc.
100 Campus Drive
Florham Park, New Jersey 07932
Re: |
Registration Statement
on Form S-3 |
Ladies and Gentlemen:
We refer to the Registration
Statement on Form S-3 (the “Registration Statement”), being filed by Cellectar Biosciences, Inc., a Delaware
corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended
(the “Securities Act”). Pursuant to the Registration Statement, the Company may from time to time issue up to an aggregate
offering price of $75,000,000 of shares (the “Shares”) of its common stock, $0.00001 par value per share (the “Common
Stock”). The Shares are to be sold by the Company pursuant to an equity distribution agreement, dated May 24, 2024 (the “Equity
Distribution Agreement”) between the Company and Piper Sandler & Co.
This opinion letter is being
delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration
Statement, the Company’s prospectus relating to the Shares (the “ATM Prospectus”), the Equity Distribution Agreement,
the Company’s Second Amended and Restated Certificate of Incorporation (as amended to the date hereof, the “Certificate
of Incorporation”), the amended and restated by-laws of the Company (the “Bylaws”) and the resolutions (the
“Resolutions”) adopted by the board of directors of the Company (the “Board”), relating to the Registration
Statement and the Equity Distribution Agreement. We have also examined originals, or copies of originals certified to our satisfaction,
of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined
such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity
with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein,
we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters
and oral and written statements and representations of public officials and officers and other representatives of the Company.
Sidley
Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with
other Sidley Austin partnerships. |
Cellectar Biosciences, Inc.
May 24, 2024
Page 2
Based on the foregoing, we
are of the opinion that the Shares will be validly issued, fully paid and non-assessable when: (i) the Registration Statement, as
finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act, (ii) the Board
or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Certificate of Incorporation,
the Bylaws and the Resolutions, setting the price of the Shares, and authorizing the issue and sale of the Shares, and (iii) certificates
representing such Shares shall have been duly executed, countersigned and registered and duly delivered to the purchasers thereof against
payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any such Shares are to be issued
in uncertificated form, the Company’s books shall reflect the issuance of such Shares to the purchasers thereof against payment
of the agreed consideration therefor in an amount not less than the par value thereof, all in accordance with the Equity Distribution
Agreement.
For the purposes of this opinion
letter, we have assumed that, at the time of the issuance, sale and delivery of Shares:
| (i) | the Shares being offered will be issued and sold as contemplated in the Registration Statement and the
ATM Prospectus relating thereto; |
| (i) | the authorization thereof by the Company will not have been modified or rescinded, and there will not have occurred any change in
law affecting the validity thereof; |
| (ii) | the Certificate of Incorporation and Bylaws, as currently in effect, will not have been modified or amended and will be in full force
and effect; and |
| (iii) | the Company will have sufficient authorized and unissued shares of Common Stock from which to issue as the Shares. |
This opinion letter is limited
to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction,
including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing
of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the
ATM 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 Securities Act.
|
Very truly yours, |
|
|
|
/s/ Sidley Austin LLP |
|
Sidley Austin LLP |
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, relating to the consolidated financial statements of Cellectar Biosciences,
Inc. (the Company), which appears in the Company's Annual Report on Form 10-K for the year ended December 31, 2023. Our report includes
an explanatory paragraph about the existence of substantial doubt concerning the Company’s ability to continue as a going concern.
We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ Baker Tilly US, LLP
Madison, Wisconsin
May 24, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Cellectar Biosciences, 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 |
|
Proposed
Maximum
Offering
Price Per
Unit
|
|
Maximum
Aggregate
Offering
Price
|
|
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 |
|
Common Stock, par value $0.00001 per share |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
Preferred Stock,
par value
$0.00001 per
share
|
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Warrants |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt |
|
Debt Securities |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Right to purchase common stock, preferred stock,
debt securities or units |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Units |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated
(Universal)
Shelf
|
|
— |
|
Rule 457(o) |
|
(1) |
|
(2) |
|
$300,000,000 |
|
$0.00014760 |
|
$44,280(3) |
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
— |
|
— |
|
— |
|
— |
|
|
|
— |
|
|
|
|
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering
Amounts |
|
|
|
$300,000,000 |
|
|
|
$44,280.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Previously
Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
$44,280.00 |
|
|
|
|
|
|
|
|
(1) |
Includes an indeterminate number of securities at indeterminate prices that may be issued from time to time in primary offerings or upon exercise, conversion or exchange of any securities registered hereunder that provide for exercise, conversion or exchange. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, the securities registered hereunder include such indeterminate number of securities as may be issuable with respect to the securities being registered hereunder as a result of share splits, share dividends or similar transactions. |
(2) |
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant Instruction 2.A.ii.b. of the Instructions to the Calculation of Filing Fee Tables and Related Disclosure of Form S-3 The aggregate maximum offering price of all securities issued pursuant to this registration statement will not exceed $300,000,000. |
(3) |
The registration fee has been calculated pursuant to Rule 457(o) under the Securities Act.. |
Grafico Azioni Cellectar Biosciences (NASDAQ:CLRB)
Storico
Da Dic 2024 a Gen 2025
Grafico Azioni Cellectar Biosciences (NASDAQ:CLRB)
Storico
Da Gen 2024 a Gen 2025