ADC Therapeutics SA 8-K, filed Oct 13, 2026
ADC Therapeutics SA (ADCT)
About this 8-K
ADC Therapeutics SA filed this 8-K on October 13, 2026, reporting on events of October 7, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.02: Financial results
- Item 3.02: Unregistered sale of equity
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01. Entry into a Material Definitive Agreement.
Private Placement
On October 7, 2026, ADC Therapeutics SA (the “Company”) entered into securities purchase agreements for the sale of its equity securities to certain institutional investors in a $86.6 million (assuming the cash exercise of the pre-funded warrants) private placement (the “Private Placement”). In the private placement, the Company will sell 12,911,347 common shares at $1.4200 per share and pre-funded warrants to purchase 48,088,653 common shares at $1.32400 per pre-funded warrant, which is the price per common share in the private placement minus the exercise price per pre-funded warrant. The private placement is expected to close on October 22, 2026, subject to customary closing conditions.
The purchase agreements provide certain registration rights, pursuant to which the Company has agreed to file a registration statement within 30 business days to register the resale of the common shares sold in the private placement and the common shares issuable upon exercise of the pre-funded warrants sold in the private placement.
The private placement is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) under Section 4(a)(2) of the Securities Act in that the private placement is between an issuer and sophisticated investors not involving any public offering. The Company is relying on this exemption from registration based in part on representations made in the purchase agreements for the private placement, a form of which is attached to this Current Report on Form 8-K as Exhibit 10.1.
The pre-funded warrants are exercisable at any time after their original issuance until the tenth anniversary of their original issuance. At any time during the last 90 days of the term, the holder may exchange the pre-funded warrant for, and the Company will issue, a new pre-funded warrant for the number of common shares then remaining under the pre-funded warrant. The pre-funded warrants will be exercisable, at the option of each holder, in whole or in part (but not for less than a common share) by delivering to the Company a duly executed exercise notice and by payment of the aggregate exercise price; provided that any exercise of the pre-funded warrants must be for at least 50,000 common shares (or, if less, the remaining common shares available for purchase under the pre-funded warrants). A holder will not be entitled to exercise any portion of any pre-funded warrants that, upon giving effect to such exercise, would cause the aggregate number of the Company’s common shares beneficially owned by the holder (together with its affiliates and certain attribution parties) to exceed 9.99% (or, 61 days after a written notice from such holder, any other percentage not in excess of 19.99%) of the number of the Company’s common shares outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the pre-funded warrants. The exercise price per common share purchasable upon the exercise of the pre-funded warrants is CHF 0.08 per share, subject to customary adjustments. In lieu of making cash payment of the aggregate exercise price, a holder may elect to exercise the pre-funded warrants on a cashless basis. However, if the Company, at the time of receipt of an exercise notice electing cashless exercise, (i) does not, or has reason to believe that the Company does not, have a sufficient amount of freely distributable equity to fund the nominal value of the number of common shares the Company would be required to deliver upon such cashless exercise, and (ii) (x) holds common shares representing more than 2% of its share capital registered in the commercial register at that time (the “Minimum Stock”) in treasury, then the Company will not be obligated to (but may) deliver more than such number of common shares to the holder as exceeds the Minimum Stock or (y) holds up to the Minimum Stock in treasury, then the Company will not be obligated to deliver any common shares to the holder. The exercise notice will be deemed to be null and void to the extent the holder receives fewer common shares than to which such exercise notice relates. In the event of (i) a sale, lease or other transfer of all or substantially all of the Company’s assets, (ii) a merger or consolidation involving the Company in which the Company is not the surviving entity or in which the Company’s outstanding share capital is converted into or exchanged for shares of capital stock or other securities or property of another entity, or (iii) any sale by holders of the Company’s outstanding voting equity securities in a single transaction or series of related transactions of shares constituting a majority of the Company’s outstanding combined voting power, and (x) if the consideration received by the Company’s shareholders consists solely of cash and/or marketable securities, then holders of the pre-funded warrants will be deemed to have exercised their pre-funded warrants (without regard to the exercise limitations described above) immediately prior to the closing date of such transaction or (y) if the consideration received by the Company’s shareholders does not consist solely of cash and/or marketable securities, then the Company will cause the successor or surviving entity to assume the pre-funded warrants. Subject to applicable laws, the pre-funded warrants may be offered for sale, sold, transferred or assigned without the Company’s consent. The pre-funded warrants are governed by the laws of Switzerland. The foregoing description of the pre-funded warrants does not purport to be complete and is qualified in its entirety by reference to the form of pre-funded warrant, which is attached to this Current Report on Form 8-K as Exhibit 10.2.
Amendment to Loan Agreement
On October 7, 2026, the Company, certain subsidiaries of the Company, the lenders party thereto and Blue Owl Opportunistic Lending Master Fund I, L.P., as administrative agent and collateral agent, entered into a second amendment (the “Loan Agreement Amendment”) to the Loan Agreement and Guaranty, dated August 15, 2022 (as amended from time to time, the “Loan Agreement”). The effectiveness of the Loan Agreement Amendment is conditioned on, among other things, the prepayment of $70.0 million principal amount of term loans under the Loan Agreement, plus accrued and unpaid interest with respect thereto and any related fees and premiums, inclusive of the Company’s scheduled September 30, 2026 amortization payment. Immediately after such prepayment, if made, the principal amount of outstanding term loans under the Loan Agreement will be $50.0 million. Upon effectiveness, the Loan Agreement Amendment eliminates subsequent scheduled principal amortization, with the remaining principal payable at maturity unless earlier accelerated; eliminates the minimum liquidity covenant; and sets the minimum trailing four-quarter U.S. ZYNLONTA sales covenant at $65.0 million for the quarter ending December 31, 2026 and each quarter thereafter. The foregoing description of the Loan Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the Loan Agreement Amendment, which is attached to this Current Report on Form 8-K as Exhibit 10.3.
In connection with the Loan Agreement Amendment, the Company entered into amendments to the warrants to purchase an aggregate of 527,295 common shares, which were issued on August 15, 2022 in connection with the Loan Agreement (the “Lender Warrants”). The amendments reduce the exercise price of the Lender Warrants from $8.30 per share to $1.00 per share (being the lesser of $1.00 per share and the price per common share in the Private Placement). The effectiveness of the amendments to the Lender Warrants is conditioned upon the effectiveness of the Loan Agreement Amendment. The foregoing description of the amendments to the Lender Warrants does not purport to be complete and is qualified in its entirety by reference to the form of amendment to the Lender Warrants, which is attached to this Current Report on Form 8-K as Exhibit 10.4.
Amendment to Royalty Purchase and Sale Agreement
On October 7, 2026, the Company entered into Amendment No. 2 (the “HCR Amendment”) to its Purchase and Sale Agreement, dated August 25, 2021(as amended from time to time, the “HCR Agreement”), with certain entities managed by Healthcare Royalty Management, LLC (collectively, “HCR”). To date, HCR has provided $300 million of funding to the Company. The HCR Amendment eliminates the payment otherwise required solely upon a change of control and permits the Company (or its successor in interest) to exercise its option to buy out the remaining royalty obligations without a change of control by paying HCR $525 million (if the buyout occurs on or prior to December 31, 2029) or $750 million (if the buyout occurs on or after January 1, 2030), less the amount of royalties previously paid to HCR. If this option is not exercised, the royalty obligations under the HCR Agreement will continue until the Royalty Cap (as defined in the HCR Agreement). In addition, the HCR Amendment reduces the aggregate outstanding principal amount of third-party indebtedness of the Company and its subsidiaries are permitted to incur to $50.0 million. An uncured breach of this debt limitation covenant entitles HCR to elect to receive the non-performance payment equaling 1.5 times the difference between the $300 million aggregate purchase price and royalty payments and other qualifying credited amounts actually received by HCR, subject to a cure period. The HCR Amendment also requires the Company, subject to shareholder approval and applicable legal and fiduciary duties limitations, to use its best efforts to become a Delaware corporation. In addition, the HCR Amendment amends the warrants to purchase 9,834,776 common shares, which were issued on February 18, 2026 in connection with a previous amendment to the HCR Agreement (the “HCR Warrants”), by reducing the exercise price of the HCR Warrants from $3.8130 per share to $0.10 per share; by adding a provision that prohibits the exercise of the HCR Warrants if, upon giving effect to such exercise, the aggregate number of the Company’s common shares beneficially owned by the holder (together with its affiliates and certain attribution parties) would exceed 4.99% (or, 61 days after a written notice from such holder, any other percentage not in excess of 9.99%) of the number of the Company’s common shares outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the HCR Amendment; and removing the contractual restrictions on transfers of the HCR Warrants and shares issuable upon exercise of the HCR Warrants before January 1, 2028. The effectiveness of the HCR Amendment is conditioned upon the completion of the Private Placement by October 31, 2026 and effectiveness of the Loan Agreement Amendment. The foregoing description of the HCR Amendment does not purport to be complete and is qualified in its entirety by reference to the HCR Amendment, which is attached to this Current Report on Form 8-K as Exhibit 10.5.
Item 2.02. Results of Operations and Financial Condition.
On October 8, 2026, the Company issued a press release that includes the preliminary net product revenues from sales of ZYNLONTA for the quarter ended September 30, 2026 and the preliminary cash and cash equivalents as of September 30, 2026. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated by reference herein.
The ZYNLONTA net product revenues and cash and cash equivalents figures are preliminary and unaudited and reflect the Company’s estimated financial results. In preparing this information, management made a number of complex and subjective judgments and estimates about the appropriateness of certain reported amounts and disclosures. The Company’s actual financial results for the quarter ended September 30, 2026 have not yet been finalized by management. The preliminary financial information is not a comprehensive statement of all financial results for the quarter ended September 30, 2026. Subsequent information or events may lead to material differences between the foregoing preliminary financial results and those reported in the Company’s subsequent SEC filings. Accordingly, investors should not place undue reliance on these preliminary financial results.
The information contained in this Item 2.02 and Exhibit 99.1 shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth under Item 1.01 of this Current Report on Form 8-K with regards to the Private Placement, the Lender Warrants and the HCR Warrants is incorporated by reference in this Item 3.02.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ADC Therapeutics SA | ||
| Date: October 13, 2026 | ||
| By: | /s/ Peter J. Graham | |
| Name: | Peter J. Graham | |
| Title: | Chief Legal Officer | |
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of October 7, 2026, by and between ADC Therapeutics SA, a société anonyme domiciled in Epalinges, Canton of Vaud, Switzerland, and organized under the laws of Switzerland (the “Company”), and the undersigned investor (the “Investor”). Substantially concurrently with the execution of this Agreement, the Company is entering into separate purchase agreements (collectively, the “Additional Purchase Agreements”) with certain investors (the “Additional Investors”), severally and not jointly, to purchase securities from the Company in one or more transactions exempt from the registration requirements of the Securities Act (as defined below) pursuant to Section 4(a)(2) thereof (the transactions contemplated by this Agreement and the Additional Purchase Agreements, collectively, the “PIPE Transaction”).
In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. For the purposes of this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is controlled by, or is under common Control with, such Person.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
“Common Shares” means the common shares, par value CHF 0.08 per share, of the Company.
“Control” (including the terms “controlling,” “controlled by” or “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Health Care Laws” means (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.), the Public Health Service Act (42 U.S.C. §§ 201 et seq.); (ii) all applicable federal, state, local and all applicable foreign health care related fraud and abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the U.S. False Statements Law (42 U.S.C. § 1320a-7b(a)), the Civil Monetary Penalties Law (42 U.S.C. §1320a-7a), the U.S. Civil False Claims Act (31 U.S.C. § 3729 et seq.), all criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. §§ 286 and 287, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. §§ 1320d et seq.), the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h), the exclusion law (42 U.S.C. §1320a-7); (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. §§ 17921 et seq.); (iv) regulations promulgated pursuant to such statutes; and (v) any and all other applicable federal, state, or foreign health care laws and regulation applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company.
“NYSE” means the New York Stock Exchange.
“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
“Placement Agents” means each of Jefferies LLC, Guggenheim Securities, LLC and Cantor Fitzgerald & Co.
“Pre-Funded Warrants” means the pre-funded warrants of the Company, in the form attached as Exhibit A hereto.
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“Registrable Securities” means (i) the Shares and the Warrant Shares and (ii) any other Common Shares issued as a dividend or other distribution with respect to, in exchange for or in replacement of the Shares or the Warrant Shares; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, registration statement hereunder with respect thereto) upon the first to occur of (A) a registration statement with respect to the sale of such Registrable Securities being declared effective by the SEC under the Securities Act and such Registrable Securities having been disposed of or transferred by the holder thereof in accordance with such effective registration statement, (B) such Registrable Securities having been previously sold or transferred in accordance with Rule 144 (or another exemption from the registration requirements of the Securities Act), (C) such securities becoming eligible for resale without volume or manner-of-sale restrictions and without current public information requirements pursuant to Rule 144, (D) such securities are no longer outstanding or (E) the third anniversary of the Closing Date.
“Regulation D” means Regulation D as promulgated by the SEC under the Securities Act.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Documents” means the documents filed by the Company with the SEC pursuant to the Exchange Act on or after January 1, 2025.
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Shares).
“Trading Day” means a day on which the NYSE is open for trading.
“Transaction Documents” means this Agreement and the Warrants (as defined below).
“Warrant Shares” means the Common Shares issuable upon exercise of the Warrants in full without regard to any exercise limitations therein.
Section 2. Purchase and Sale of the Securities. At the Closing (as defined below), upon the terms of and subject to the conditions set forth in this Agreement, the Company will issue and sell to the Investor, and the Investor will purchase from the Company, (i) the number of Common Shares set forth under the heading “Number of Shares” on the Investor’s signature page to this Agreement (such Common Shares, collectively, the “Shares”), at a price per Share equal to $1.4200 and (ii) the number of Pre-Funded Warrants set forth under the heading “Number of Pre-Funded Warrants” on the Investor’s signature page to this Agreement (such Pre-Funded Warrants, collectively, the “Warrants” and, together with the Shares, the “Securities”), at a price per Warrant equal to $1.32400, which is the price per Share under this Agreement minus the U.S. dollar equivalent of the exercise price of such Warrant.
Section 3. Closing.
Section 3.1. The closing of the purchase and sale of the Securities pursuant to this Agreement (the “Closing”) shall be held remotely no later than 9:30 a.m. (New York City time) on October 22, 2026 (the “Closing Date”).
Section 3.2. At or prior to the Closing, the Investor shall execute any related agreements or other documents required to be executed under this Agreement, dated on or before the Closing Date, including but not limited to the Investor Questionnaire in the form attached as Annex A hereto (the “Investor Questionnaire”).
Section 3.3. At the Closing, (i) the Investor shall pay the purchase price of the Securities to the Company by wire transfer in immediately available U.S. federal funds to an account designated by the Company in writing not later than two Business Days prior to the Closing Date and (ii) the Company shall issue and deliver to the Investor the Shares in book-entry form and registered in the name of the Investor (or its nominee if specified in
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writing not later than two Business Days prior to the Closing Date) and the Warrants in electronic form and registered in the name of the Investor (or its nominee if specified in writing not later than two Business Days prior to the Closing Date).
Section 3.4. The book-entry positions evidencing the Shares and the Warrants, in each case, delivered on the Closing Date, shall bear the following legend: “THE SECURITIES REPRESENTED HEREBY (AND ANY SECURITIES ISSUED UPON THE EXERCISE OF THE SECURITIES REPRESENTED HEREBY) HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.”
Section 4. Representations and Warranties of the Company. The Company represents and warrants to the Investor, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date, in which case such representation and warranty is made as of such date):
Section 4.1. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Exchange Act. At the time of filing thereof, each SEC Document complied in all material respects with the Exchange Act. At the time of filing thereof, each SEC Document did 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, in light of the circumstances under which they were made, not misleading.
Section 4.2. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act and listed for trading on NYSE. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company by NYSE or the SEC, respectively, to prohibit or terminate the listing of the Common Shares on NYSE or to deregister the Common Shares under the Exchange Act.
Section 4.3. The Company has been duly incorporated and is validly existing as a Swiss stock corporation (société anonyme) in good standing (to the extent this concept applies) under the laws of Switzerland, has the corporate power and authority to own its property and to conduct its business, is not in liquidation or receivership or the subject of any insolvency or bankruptcy proceedings and is duly qualified to transact business (and, if applicable, is in good standing) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing (to the extent this concept applies) would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
Section 4.4. Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation (and, if applicable, in good standing) under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business, is not in liquidation or receivership or the subject of any insolvency or bankruptcy proceedings and is duly qualified to transact business (and, if applicable, is in good standing) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing (to the extent this concept applies) would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. Except as otherwise described in the SEC Documents, all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and such shares are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
Section 4.5. This Agreement has been duly authorized, executed and delivered by the Company. Assuming due authorization, execution and delivery of this Agreement by the Investor, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
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moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
Section 4.6. The Common Shares issued and outstanding prior to the issuance of the Securities have been duly authorized and are validly issued, fully paid and non-assessable.
Section 4.7. The Common Shares conform as to legal matters to the description thereof contained in the SEC Documents. Except as otherwise described in the SEC Documents or in connection with the PIPE Transaction, there are no outstanding rights (including, without limitation, subscription rights), warrants or options to acquire, or instruments, securities or rights convertible into or exchangeable for, any Common Shares or other equity interest in the Company to which the Company or any of its subsidiaries is a party, or any contract, commitment, or arrangement of any kind to which the Company or any of its subsidiaries is a party under which the Company or any of its subsidiaries have committed to issue any Common Shares or grant any such convertible or exchangeable securities or any such rights, warrants or options. Except as otherwise described in the SEC Documents, there are no outstanding rights (including, without limitation, subscription rights), warrants or options to acquire, or instruments, securities or rights convertible into or exchangeable for, any shares of any of the Company’s subsidiaries to which the Company or any of its subsidiaries is a party, or any contract, commitment, or arrangement of any kind to which the Company or any of its subsidiaries is a party under which the Company or any of its subsidiaries have committed to issue any shares, rights, warrants or options or instruments convertible into or exchangeable for, any shares of any subsidiary of the Company.
Section 4.8. The issuance and sale of the Securities will have been duly authorized on the Closing Date. The Shares, when delivered and paid for in the manner contemplated by this Agreement, will, at all times, be validly issued, fully paid and non-assessable. The Shares, when delivered and paid for in the manner contemplated by this Agreement, will be, subject only to any restrictions applicable under the Company’s articles of association or applicable laws, freely transferable except as described in the SEC Documents, and will not be subject to any pre-emptive right, third-party rights or similar rights (including, without limitation, any security interest under articles 24 and 25 of the Swiss Federal Act on Intermediated Securities) granted by the Company or any of its subsidiaries other than as contemplated by this Agreement. The Warrants, when executed and delivered by the Company, will be valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. The Warrant Shares, when issued and delivered upon exercise of the Warrants in accordance therewith, will, at all times, be validly issued, fully paid and non-assessable, and when delivered and paid for in the manner contemplated by the Warrants, will be, subject only to any restrictions applicable under the Company’s articles of association or applicable laws, freely transferable except as otherwise described in the SEC Documents, and will not be subject to any pre-emptive right, third-party rights or similar rights (including, without limitation, any security interest under articles 24 and 25 of the Swiss Federal Act on Intermediated Securities) granted by the Company or any of its subsidiaries other than as contemplated by the Warrants. The Company has a valid conditional share capital for financing purposes, out of which the Warrant Shares may be issued in compliance with the Company's articles of association (Statuts) and then delivered. On the Closing Date, the Company will have duly reserved in its conditional share capital for financing purposes the number of Warrant Shares that are issuable and deliverable upon the exercise of the Warrants.
Section 4.9. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Transaction Documents do not contravene any provision of (i) applicable law, (ii) the articles of association (Statuts) or the organizational regulations (Règlement d’organisation) of the Company or (iii) any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency, or court having jurisdiction over the Company or any subsidiary, except that in the case of clauses (i) and (iii) as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company or on the power and ability of the Company to perform its obligations under the Transaction Documents. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except (A) such as have been obtained or waived or as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Securities and the Warrant Shares, (B) the registration of the share capital increase for the
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Transaction with the Commercial Register of the Canton of Vaud, (C) the listing of the Shares and the Warrant Shares on the NYSE and (D) the registration of the Registrable Securities as contemplated by Section 7.9, subject to (A) to (B) being obtained or done on or prior to the Closing Date.
Section 4.10. There has not occurred any material adverse effect on the Company and its subsidiaries, taken as a whole, or any development involving a prospective material adverse effect on the Company and its subsidiaries, taken as a whole, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the SEC Documents or otherwise disclosed to the Investor.
Section 4.11. There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject, other than proceedings accurately described in all material respects in the SEC Documents and proceedings that would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Transaction Documents. There are no orders, writs, injunctions, judgments or decrees outstanding of any court or government agency or instrumentality and binding upon the Company or any of its subsidiaries, other than proceedings accurately described in all material respects in the SEC Documents and orders, writs, injunctions, judgments or decrees that would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Transaction Documents. Neither the Company nor any subsidiary, nor to the knowledge of the Company, any director or officer of the Company or any subsidiary, is, or within the last ten years has been, the subject of any action involving a claim of violation of or liability under federal or state securities laws relating to the Company or such subsidiary or a claim of breach of fiduciary duty relating to the Company or such subsidiary.
Section 4.12. The Company is not, and after giving effect to the offering and sale of the Securities contemplated hereby and the application of the proceeds thereof will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
Section 4.13. The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state, cantonal and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
Section 4.14. There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
Section 4.15. None of the Company or its subsidiaries or controlled Affiliates, or any director or officer, or, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled Affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
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office) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws. The Company and its subsidiaries and controlled Affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein. Neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
Section 4.16. The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including, to the extent applicable, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-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 Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
Section 4.17. Neither the Company nor any of its subsidiaries, nor any director or officer thereof, nor, to the Company’s knowledge, any employee, agent, controlled Affiliate or representative of the Company or any of its subsidiaries, is a Person that is, or is owned or controlled by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, the Swiss State Secretariat of Economic Affairs, the Swiss Directorate of International Law or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region located in Ukraine, and the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine as may be determined by the U.S. Secretary of the Treasury pursuant to Executive Order 14065). The Company will not, directly or indirectly, use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). Since April 24, 2019, the Company and its subsidiaries have not engaged in, are not now engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Section 4.18. Subsequent to December 31, 2025, except as described in the SEC Documents, in connection with the PIPE Transaction or otherwise disclosed to the Investor, (i) the Company and its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction, (ii) the Company has not purchased any of its outstanding share capital other than from its employees or other service providers in connection with the termination of their service pursuant to the terms of the equity compensation plans, nor declared, paid or otherwise made any dividend or distribution of any kind on its share capital and (iii) except for the issuance of Common Shares into treasury, there has not been any material change in the share capital (other than the exercise or settlement of equity awards or grants or forfeiture of equity awards granted pursuant to the equity compensation plans), short-term debt or long-term debt of the Company and its subsidiaries.
Section 4.19. The Company and its subsidiaries have good and marketable title to all real property and good and marketable title to all personal property (other than intellectual property, which is addressed exclusively in Section 4.20) owned by them which is material to the business of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in the SEC Documents or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. Any real property and buildings held
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under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in the SEC Documents.
Section 4.20. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) the Company and its subsidiaries own or have a valid license to all patents, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, “Intellectual Property Rights”) used in or reasonably necessary to the conduct of their businesses as now operated by them, and as proposed to be operated in the future (including upon the commercialization of the Company’s and its subsidiaries’ products or services), in each case as described in the SEC Documents (the “Company Intellectual Property”), (ii) to the Company’s knowledge, there are no third parties who have rights to any Company Intellectual Property, except for customary reversionary rights of third-party licensors, (iii) the Company Intellectual Property owned by the Company and its subsidiaries and, to the Company’s knowledge, the Company Intellectual Property licensed to the Company and its subsidiaries, are subsisting and, to the Company’s knowledge, valid and enforceable, (iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, scope or enforceability of any Company Intellectual Property, and, to the Company’s knowledge, the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim, (v) there is no pending or, to the Company’s knowledge, threatened in writing action, suit, proceeding or claim by others challenging the Company’s rights in or to any Company Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim, (vi) neither the Company nor any of its subsidiaries has received any written notice alleging any infringement, misappropriation or other violation of Intellectual Property Rights, (vii) to the Company’s knowledge, no third party is infringing, misappropriating or otherwise violating, or has infringed, misappropriated or otherwise violated, any Company Intellectual Property owned by the Company, (viii) to the Company’s knowledge, (A) neither the Company nor any of its subsidiaries infringes, misappropriates or otherwise violates, or has infringed, misappropriated or otherwise violated, any third-party Intellectual Property Rights, and (B) the commercialization of the products or services described in the SEC Documents as under development by the Company will not infringe, misappropriate, or otherwise violate any third-party Intellectual Property Rights, (ix) to the Company’s knowledge, the Company and its subsidiaries have complied with the terms of each agreement to which they are a party and pursuant to which Intellectual Property Rights have been licensed to the Company or its subsidiaries, and all such agreements are in full force and effect, (x) to the Company’s knowledge, during the prosecution of the patents and patent applications included in the Company Intellectual Property, the Company and its subsidiaries have complied with the duty of candor and good faith with respect to such patents and patent applications as required by the United States Patent and Trademark Office and all foreign offices having similar requirements, (xi) all employees or contractors engaged in the development of Company Intellectual Property on behalf of the Company or any subsidiary of the Company have executed an invention assignment agreement whereby such employees or contractors presently assign all of their right, title and interest in and to such Company Intellectual Property to the Company or the applicable subsidiary, and no such agreement has been breached or violated, (xii) to the Company’s knowledge, none of the Company Intellectual Property has been obtained, or is being used, by the Company or its subsidiary in violation of any contractual obligation binding on the Company or its subsidiaries or any of their respective officers, directors or employees or otherwise in violation of the rights of any persons and (xiii) the Company and its subsidiaries use, and have used, commercially reasonable efforts to appropriately maintain all information intended to be maintained as a trade secret.
Section 4.21. No labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the SEC Documents, or, to the knowledge of the Company, is imminent, in either case, that could have a material adverse effect on the Company and its subsidiaries, taken as a whole; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
Section 4.22. The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company reasonably believes are
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prudent and customary in the businesses in which they are engaged, except where the failure to be so insured would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. Neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for three years preceding the date of this Agreement. Neither the Company nor any of its subsidiaries 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, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the SEC Documents.
Section 4.23. The Company and its subsidiaries, taken as a whole, possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to obtain such certificates, authorization and permits would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the SEC Documents.
Section 4.24. The Company and its subsidiaries on a consolidated basis maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States (“GAAP”) and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) the interactive data in eXtensible Business Reporting Language included in the SEC Documents fairly presents the information called for in all material respects and is prepared in accordance with the SEC’s rules and guidelines applicable thereto.
Section 4.25. Except as described in each of the SEC Documents, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.
Section 4.26. The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
Section 4.27. The consolidated financial statements included in the SEC Documents, together with the related schedules and notes thereto, present fairly in all material respects the consolidated financial position of the Company as of the dates shown and its results of operations and cash flows for the periods shown, and, except as otherwise disclosed in the SEC Documents, such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods covered thereby except for any normal year-end adjustments in the Company’s quarterly financial statements and except as otherwise noted therein.
Section 4.28. PricewaterhouseCoopers SA, who has audited certain financial statements of the Company, is (i) an independent registered public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the SEC and the Public
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Company Accounting Oversight Board (United States) and (ii) an independent statutory auditor with respect to the Company and a state regulated audit firm (société d’audit réglementée par l’État) under the applicable provisions of the Swiss Code of Obligations, and the Swiss Audit Oversight Act (Loi fédérale sur l’agrément et la surveillance des réviseurs) and any ordinances promulgated thereunder, respectively.
Section 4.29. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) the pre-clinical studies and clinical trials conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or its subsidiaries or in which the Company or its subsidiaries have participated, that are described in the SEC Documents or the results of which are referred to in the SEC Documents, as applicable, were, and if still pending are, being conducted in accordance with the protocols submitted to the U.S. Food and Drug Administration (the “FDA”), the Swiss Agency for Therapeutic Products (“swissmedic”), and other applicable regulatory authorities (including, without limitation, any foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed by the FDA, FOPH, swissethics and swissmedic) (collectively, the “Regulatory Authorities”), the applicable rules and regulations of the Regulatory Authorities, and current Good Clinical Practices and Good Laboratory Practices, (ii) the descriptions in the SEC Documents of the results of such studies and trials are accurate and fairly present the data derived therefrom, (iii) the Company has no knowledge of any other studies or trials not described in the SEC Documents, the results of which call into question the results described or referred to in the SEC Documents, (iv) the Company and its subsidiaries have operated at all times and are currently in material compliance with all applicable statutes, rules and regulations of the Regulatory Authorities and (v) neither the Company nor any of its subsidiaries have received any written notices, correspondence or other communications from the Regulatory Authorities or any other governmental agency requiring or threatening the termination, modification or suspension of any pre-clinical studies or clinical trials that are described in the SEC Documents or the results of which are referred to in the SEC Documents, other than ordinary course communications with respect to modifications in connection with the design and implementation of such studies or trials, and, to the Company’s best knowledge, there are no reasonable grounds for the same.
Section 4.30. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, the Company has not failed to file with the Regulatory Authorities any required filing, declaration, listing, registration, report or submission that is a responsibility with the Company with respect to the Company’s product candidates that are described or referred to in the SEC Documents. All such filings, declarations, listings, registrations, reports or submissions were to the Company’s knowledge in compliance with applicable laws when filed. To the Company’s knowledge no deficiencies regarding compliance with applicable law have been asserted by any applicable Regulatory Authority with respect to any such filings, declarations, listings, registrations, reports or submissions.
Section 4.31. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, the Company and its subsidiaries are, and at all times have been, in compliance with all applicable Health Care Laws. Neither the Company nor its subsidiaries has received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that it is in violation of any Health Care Laws and, to the Company’s knowledge, no such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action is threatened. Neither the Company nor its subsidiaries, nor their respective officers, directors, employees, contractors or agents, is a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority. Additionally, neither the Company nor any of its employees, officers, directors, contractors or agents, nor its subsidiaries or any of the subsidiary’s employees, officers, directors, contractors or agents, has been excluded, suspended or debarred from participation in any U.S. federal health care program (as defined in 42 U.S.C. § 1320a-7b(f)) or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in such debarment, suspension, or exclusion. The Company and its subsidiaries have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by the Health Care Laws, and all such reports, documents, forms, notices, applications,
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records, claims, submissions and supplements or amendments were timely, complete, accurate and not misleading on the date filed in all material respects (or were corrected or supplemented by a subsequent submission).
Section 4.32. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) there has been no security breach or incident, unauthorized access or disclosure, or other compromise of the Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, technology, data and databases, including Personal Data (defined below), the data and information of their respective customers and employees, and any sensitive, confidential or regulated data maintained, processed or stored by the Company and its subsidiaries (collectively, “IT Systems and Data”); (ii) the IT Systems and Data are adequate for, and operate and perform as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted; (iii) the Company and its subsidiaries have used commercially reasonable efforts to implement and maintain, and have implemented and maintained, commercially reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, physical, technological and administrative safeguards and controls, and business continuity/disaster recovery and security plans that are designed to protect against and prevent security breaches, unauthorized use or access, disablement, misappropriation, modification, or other compromise or misuse of the IT Systems and Data, and maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data used in connection with the operation of the Company’s and its subsidiaries’ businesses, which are reasonably consistent with industry standards. “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) “personal data” as defined by GDPR (defined below); (iii) any information which would qualify as “protected health information” under HIPAA; and (iv) any other piece of information that (A) is regulated by an applicable privacy law, regulation or contract and (B) 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.
Section 4.33. Except as described in the SEC Documents and except as would not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) the Company and each of its subsidiaries have complied, and are presently in compliance, with all applicable internal and external privacy policies, contractual obligations, applicable state, federal and international data privacy and security laws and regulations, including, without limitation, HIPAA, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679), and other statutes, judgments, orders, rules and regulations of any applicable court or arbitrator or other governmental or regulatory authority (collectively, the “Data Security Obligations”), (ii) the Company has not received from any applicable governmental authority any written notification of or written complaint alleging non-compliance by the Company or its subsidiaries with any Data Security Obligation, (iii) there is no action, suit or proceeding by or before any applicable court or governmental agency, authority or body pending or threatened in writing alleging non-compliance by the Company or its subsidiaries, (iv) to ensure compliance with the Data Security Obligations, the Company and its subsidiaries have at all times had 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 that is subject to the Data Security Obligations (the “Policies”) and (v) the Company and its subsidiaries have made all disclosures of its then-current Policies 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.
Section 4.34. The Company maintains disclosure controls and procedures that comply with the requirements of the Exchange Act. Such disclosure controls and procedures have been designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and principal financial officer by others within the Company and such disclosure controls and procedures are effective at the reasonable assurance level.
Section 4.35. Other than the Placement Agents, no Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company or, to
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the Company’s knowledge, the Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company.
Section 4.36. Neither the Company nor any of its subsidiaries nor any Person acting on their behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D) in connection with the offer or sale of the Securities.
Section 4.37. Neither the Company nor any of its subsidiaries nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any Company security, under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) for the exemption from the registration requirements of the Securities Act for the transactions contemplated hereby or would require registration of the Securities under the Securities Act or cause this offering of the Securities to require approval of stockholders of the Company for purposes of the Securities Act or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of the NYSE.
Section 4.38. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 5, the offer and sale of the Securities by the Company to the Investor, and the issuance of the Warrant Shares upon exercise of the Warrants, is exempt from the registration requirements of the Securities Act. The issuance and sale of the Securities by the Company to the Investor, and the issuance of the Warrant Shares upon exercise of the Warrants, do not contravene the rules and regulations of the NYSE applicable to the Company. The Company is in compliance with applicable NYSE continued listing requirements.
Section 4.39. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i)(1) of the Securities Act.
Section 4.40. The Company acknowledges and agrees that, during the period beginning on the date of this Agreement and ending on the Closing Date, the Company will not enter into any Additional Purchase Agreements (or any side letter) with terms and conditions that are more advantageous to the investors thereunder than the terms and conditions set forth in this Agreement, unless such terms and conditions are also offered to the Investor. The Additional Purchase Agreements have not been amended or modified following the date of this Agreement. In addition, no amendment shall be made to an Additional Purchase Agreement, and no consideration shall be offered or paid to any Additional Investor to amend or consent to a waiver or modification of any provision of any of such Additional Investor’s Additional Purchase Agreement, unless the same amendment or consideration (other than the reimbursement of legal fees), as the case may be, also is offered to the Investor.
Section 5. Representations and Warranties of the Investors. The Investor represents and warrants to the Company, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date, in which case such representation and warranty is made as of such date):
Section 5.1. The Investor has been duly incorporated or formed, as applicable, and is validly existing and in good standing (to the extent this concept applies) under the laws of its jurisdiction of incorporation and is not in liquidation or receivership or the subject of any insolvency or bankruptcy proceedings, except to the extent that the failure to be so qualified or be in good standing (to the extent this concept applies) would not have a material adverse effect on the power and ability of the Investor to perform its obligations under this Agreement.
Section 5.2. This Agreement has been duly authorized, executed and delivered by the Investor. Assuming due authorization, execution and delivery of this Agreement by the Company, this Agreement constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
Section 5.3. The execution and delivery by the Investor of, and the performance by the Investor of its obligations under, this Agreement do not contravene any provision of (i) applicable law, (ii) certificate of incorporation, bylaws or other constitutive document of the Investor, or (iii) any agreement, or other instrument binding upon the Investor or any of its subsidiaries that is material to the Investor, or any judgment, order or decree of any governmental body, agency, or court having jurisdiction over the Investor or any subsidiary, except
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that in the case of clauses (i) and (iii) as would not, individually, or in the aggregate, reasonably be expected to have a material adverse effect on the power and ability of the Investor to perform its obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required on behalf of the Investor for the performance by the Investor of its obligations under this Agreement, except such as have been obtained or waived.
Section 5.4. The Securities will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by the Investor to hold the Securities for any period of time. The Investor is not a broker-dealer registered with the SEC under the Exchange Act or an entity engaged in a business that would require it to be so registered.
Section 5.5. The Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.
Section 5.6. The Investor has had an opportunity to receive, review and understand all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities, and has had the opportunity to conduct and complete its own independent due diligence. The Investor has received copies of the SEC Documents, which were made available to the Investor through the SEC’s EDGAR system. Based on the information the Investor has deemed appropriate, and without reliance upon the Placement Agents, it has independently made its own analysis and decision to enter into the Transaction Documents. The Investor is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the execution, delivery and performance of the Transaction Documents, the Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including, but not limited to, all business, legal, regulatory, accounting, credit and tax matters. The Investor has not relied on any advice furnished by or on behalf of the Placement Agents in connection with the transactions contemplated hereby. Neither such inquiries nor any other due diligence investigation conducted by the Investor shall modify, limit or otherwise affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement or on the truth, accuracy and completeness of the SEC Documents.
Section 5.7. The Investor understands that the Securities are “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances.
Section 5.8. The Investor is either an institution that is an “accredited investor” within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, and the Investor is an “institutional account” within the meaning of FINRA Rule 4512(c) and has executed and delivered to the Company its Investor Questionnaire, which the Investor represents and warrants is true, correct and complete. The Investor is a sophisticated institutional investor with sufficient knowledge, sophistication and experience in business, including transactions involving private investments in public equity, to properly evaluate the risks and merits of its purchase of the Securities. The Investor has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Securities and participation in the transactions contemplated by this Agreement (a) are fully consistent with its financial needs, objectives and condition, (b) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to the Investor and (c) are a fit, proper and suitable investment for the Investor, notwithstanding the substantial risks inherent in investing in or holding the Securities.
Section 5.9. The Investor hereby acknowledges and agrees that it has independently evaluated the merits of its decision to purchase the Securities, and that (i) the Placement Agents are acting solely as placement agents in connection with the execution, delivery and performance of this Agreement and are not acting
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as an underwriter or in any other capacity and are not and shall not be construed as fiduciaries for the Investor, the Company or any other person or entity in connection with the execution, delivery and performance of the Transaction Documents, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the execution, delivery and performance of the Transaction Documents, (c) the Placement Agents will not have any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the execution, delivery and performance of the Transaction Documents, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company and (d) the Placement Agents will not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Investor, the Company or any other person or entity), whether in contract, tort or otherwise, to the Investor, or to any person claiming through it, in respect of the execution, delivery and performance of the Transaction Documents.
Section 5.10. The Investor did not learn of the investment in the Securities as a result of any general solicitation or general advertising (as those terms are used in Regulation D).
Section 5.11. Other than the Placement Agents, no Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of such Investor.
Section 5.12. Other than consummating the transactions contemplated hereunder, the Investor has not, nor has any Person acting on behalf of or pursuant to any understanding with the Investor, directly or indirectly, executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that the Investor was first contacted by the Company, the Placement Agents or any other Person regarding the transactions contemplated hereby and ending on the date hereof. Notwithstanding the foregoing, in the case of the Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Investor’s assets and the portfolio managers have no direct knowledge of the investment decision made by the portfolio managers managing other portions of the Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities. The Investor, its Affiliates and, to the knowledge of such Investor, authorized representatives and advisors of the Investor who are aware of the transactions contemplated hereby, maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.
Section 6. Conditions to Closing.
Section 6.1. Conditions to the Investors’ Obligations. The obligation of the Investor to purchase Securities at the Closing is subject to the fulfillment to the Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by the Investor:
(a) The representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality or by material adverse effect, in which case such representations and warranties shall be true and correct in all respects) as of the date hereof and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.
(b) The Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
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(c) The Company shall have submitted with the NYSE a Supplemental Listing Application with respect to the Shares and the Warrant Shares.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated by the Transaction Documents.
(e) No stop order or suspension of trading shall have been imposed by the NYSE, the SEC or any other governmental or regulatory body with respect to public trading in the Common Shares.
Section 6.2. Conditions to Obligations of the Company. The obligation of the Company to issue and sell the Securities at the Closing is subject to the fulfillment to the Company’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by the Company:
(a) The representations and warranties made by the Investor in Section 5 hereof shall be true and correct in all material respects (except for those representations and warranties which are qualified as to materiality or material adverse effect, in which case such representations and warranties shall be true and correct in all respects) as of the date hereof and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date. The Investor shall have performed in all material respects all obligations and covenants herein required to be performed by them on or prior to the Closing Date.
(b) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated by the Transaction Documents.
(c) The Investor shall have provided to the Company the information set out in the Investor Questionnaire.
Section 6.3. Termination of Obligations to Effect Closing; Effects. The obligations of the Company, on the one hand, and the Investor, on the other hand, to effect the Closing shall terminate as follows:
(a) Upon the mutual written consent of the Company and Investor;
(b) By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived by the Company; or
(c) By the Investor if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived by the Investor.
Section 7. Covenants and Agreements of the Company.
Section 7.1. Disclosure of Transactions. No later than 9:00 a.m., New York City time, on October 8, 2026 (the “Disclosure Time”), the Company shall issue one or more press releases and/or file with the SEC one or more Current Reports on Form 8-K (including all exhibits thereto, the “Disclosure Document”) disclosing all material terms of the transactions contemplated by the Transaction Documents. By no later than 5:30 p.m., New York City time, on November 4, 2026 (the “Cleansing Time”), (i) any and all information provided to the Investor by or on behalf of the Company on a confidential basis in connection with the PIPE Transaction that as of such date and time constitutes material non-public information within the meaning of applicable securities laws will be made public by the Company or (ii) will have been determined by the Company to no longer be material information. Upon the Cleansing Time, the Investor will not be in possession of any material non-public information concerning the Company disclosed to the Investor by the Company or its representatives. Upon the Cleansing Time, the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with the Company or any of its officers, directors, affiliates, employees or agents, including, without limitation, the Placement Agents. The Company understands and confirms that the Investor will rely on the
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foregoing representations in effecting securities transactions. After the issuance or filing of the Disclosure Document, the Company shall not provide the Investor with any material non-public information concerning the Company without the Investor's prior written consent. Notwithstanding anything in this Agreement to the contrary, the Company shall not publicly disclose the name of the Investor or any of its Affiliates or advisers, or include the name of the Investor or any of its Affiliates or advisers, in any press release or filing with the SEC or any regulatory agency, without the prior written consent of the Investor, except as required by the federal securities law in connection with any registration statement contemplated by this Agreement or to the extent such disclosure is required by law or the applicable rules or regulations of the NYSE, in which case the Company shall allow the Investor, to the extent reasonably practicable in the circumstances, reasonable time to comment on such disclosure in advance of such disclosure.
Section 7.2. NYSE Listing. From the date hereof until such time as the Shares and the Warrant Shares no longer constitute Registrable Securities, the Company will use commercially reasonable efforts to continue the listing and trading of its Common Shares on the NYSE and, in accordance therewith, will use commercially reasonable efforts to comply in all respects with the Company’s reporting, filing and other obligations under the NYSE listing standards.
Section 7.3. Removal of Legends. In connection with any sale or disposition of the Shares or the Warrant Shares by the Investor pursuant to Rule 144 or pursuant to an effective registration statement, if requested by the Investor, the Company shall use its reasonable efforts to request that the Company’s transfer agent remove any restrictive legends related to the book-entry positions representing such Shares or Warrant Shares, provided that the Company has received customary representations and other documentation reasonably acceptable to the Company in connection therewith. Subject to receipt by the Company of customary representations and other documentation (which shall not include a legal opinion) reasonably acceptable to the Company in connection therewith, upon the earliest of such time as the Shares and Warrant Shares (a) have been sold or transferred pursuant to an effective registration statement, (b) have been sold pursuant to Rule 144 or (c) are eligible for resale under Rule 144 or any successor provision without volume or manner-of-sale restrictions and without current public information requirements, the Company shall (i) deliver to the Company’s transfer agent instructions to remove any restrictive legends related to the book-entry positions representing such Shares or Warrant Shares, as applicable, and (ii) cause its counsel to deliver to the Company’s transfer agent one or more opinions to the effect that the removal of such legends in such circumstances may be effected under the Securities Act. The Company shall be responsible for the fees of its transfer agent.
Section 7.4. Transfer Restrictions. The Investor agrees that it will sell, transfer or otherwise dispose of the Securities and the Warrant Shares only in compliance with all applicable state and federal securities laws.
Section 7.5. Reservation of Warrant Shares. Until the expiration of the Warrants, the Company shall take all action necessary to have authorized and reserved the Warrant Shares (without taking into account any limitations on exercise of the Warrants).
Section 7.6. Fees. The Company shall be responsible for the payment of any placement agent fees, financial advisory fees or broker’s commissions (other than for Persons engaged by the Investor) relating to or arising out of the transactions contemplated hereby, including any fees or commissions payable to the Placement Agents.
Section 7.7. Subsequent Equity Sales. The Company shall not, and shall use its commercially reasonable efforts to ensure that no controlled Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that will be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to the Investor or cause this offering of the Securities to require approval of stockholders of the Company for purposes of the Securities Act or any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of the NYSE. The Company shall not take any action or steps that would adversely affect reliance by the Company on Section 4(a)(2) for the exemption from the registration requirements of the Securities Act for the transactions contemplated hereby or require registration of the Securities under the Securities Act.
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Section 7.8. Confidentiality After the Date Hereof. The Investor covenants that until the earlier of the Cleansing Time and such time as all information provided to the Investor that constitutes “material non-public information” under applicable securities laws is publicly disclosed by the Company, the Investor will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction), other than to such Investor's outside attorney, accountant, auditor or investment advisor only to the extent necessary to permit evaluation of the investment, and the performance of the necessary or required tax, accounting, financial, legal, or administrative tasks and services and other than as may be required by law.
Section 7.9. Registration Rights and Rule 144.
(a) The Company shall use its reasonable best efforts to register the resale by the Investor of the Registrable Securities on a registration statement on Form S-3 (the “Registration Statement”) no later than 30 Business Days after the Closing Date, and shall provide the Investor with a copy of such draft Registration Statement for review not less than two Business Days before filing. The Company shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable, but in no event later than five Business Days after the SEC has notified the Company that it will not review, or has completed its review, of the Registration Statement; provided that the Company’s obligations to include the Registrable Securities in the Registration Statement are contingent upon the Investor furnishing in writing to the Company such information regarding the Investor or its permitted assigns, the securities of the Company held by the Investor and the intended method of disposition of the Registrable Securities (which shall be limited to non-underwritten public offerings) as shall be reasonably requested by the Company to effect the registration of the Registrable Securities, and the Investor shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations; provided, further, that the Investor shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Securities. Upon notification by the SEC that any Registration Statement has been declared effective by the SEC, within one Business Day thereafter, the Company shall file a final prospectus to the extent required by Rule 424 under the Securities Act. For the avoidance of doubt, the Registration Statement may register the securities issued and issuable (including pursuant to warrants issued) pursuant to the Additional Purchase Agreements in addition to the Investor’s Registrable Securities (but not any other securities). The Company shall use its reasonable best efforts to keep the Registration Statement effective (and the related prospectus current) with respect to the Registrable Securities as long as the Investor holds Registrable Securities. Neither the Company nor any affiliate thereof shall identify the Investor as an underwriter in any public disclosure or filing with the SEC applicable trading market without the prior written consent of such Investor, and any Investor being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement; provided that if the Investor is required to be named as an underwriter and the Investor does not consent to being so named, the Company shall be relieved of its obligations to register the Registrable Securities of the Investor.
(b) Notwithstanding anything to the contrary contained herein, the Company may, upon written notice to any holder of Registrable Securities included in a Registration Statement, suspend the use of any Registration Statement, including any prospectus that forms a part of a Registration Statement, if the Company (i) determines that it would be required to make disclosure of material information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (ii) determines it must amend or supplement the Registration Statement or the related prospectus so that such Registration Statement or prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the case of the prospectus in light of the circumstances under which they were made, not misleading or (iii) has experienced or is experiencing some other material nonpublic event, including a pending transaction involving the Company, the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company; provided, however, that in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 365-day period. Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby. The Investor may deliver written notice (an “Opt-Out Notice”) to the
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Company requesting that the Investor not receive notices from the Company otherwise required by this Section 7.9; provided, however, that the Investor may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the Investor (unless subsequently revoked), (a) the Company shall not deliver any notices pursuant to this Section 7.9 to the Investor and the Investor shall no longer be entitled to the rights associated with any such notice and (b) each time prior to the Investor’s intended use of an effective Registration Statement, the Investor will notify the Company in writing at least two Business Days in advance of such intended use, and if a notice of a suspension was previously delivered (or would have been delivered but for the provisions of this Section 7.9) and the related suspension period remains in effect, the Company will so notify the Investor, within one Business Day of the Investor’s notification to the Company, by delivering to the Investor a copy of such previous notice of a suspension, and thereafter will provide the Investor with the related notice of the conclusion of such suspension immediately upon the conclusion thereof (which notices shall not contain any material nonpublic information or subject the Investor to any duty of confidentiality).
(c) With a view to making available to the Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investor to sell Registrable Securities to the public without registration, the Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after such date as all of the Registrable Securities may be sold without restriction by the holders thereof pursuant to Rule 144 or any other rule of similar effect or (B) such date as there are no longer Registrable Securities; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and (iii) furnish electronically to each Investor upon request, as long as the Investor owns any Registrable Securities, a written statement by the Company that it has complied with the reporting requirements of the Securities Act.
Section 8. Indemnification.
Section 8.1. Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, the Investor, the officers, directors, partners, members and employees of the Investor, each Person who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members and employees of each such controlling Person (each, an "Investor Indemnified Party"), against any losses, claims, damages, liabilities and expenses (including reasonable attorney fees) to which such Investor Indemnified Party may become subject under the Securities Act, the Exchange Act, any other federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based in whole or in part upon (i) any breach of this Agreement or any Transaction Document by the Company, (ii) any untrue statement or alleged untrue statement or omission or alleged omission of any material fact contained in any Registration Statement, any preliminary prospectus or final prospectus thereto, or any amendment or supplement thereof or (iii) any action, claim or proceeding, pending or threatened, against an Investor Indemnified Party in any capacity by any third party (including a shareholder of the Company in a derivative capacity who is not an Affiliate of such Investor Indemnified Party) with respect to the transactions contemplated by the Transaction Documents, and will reimburse each Investor Indemnified Party for legal and other expenses reasonably incurred as such expenses are reasonably incurred by such Investor Indemnified Party in connection with investigating, defending, settling, compromising or paying such loss, claim, damage, liability, expense or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (a) the failure of such Investor Indemnified Party to comply with the covenants and agreements contained herein, (b) the inaccuracy of any representations made by such Investor Indemnified Party herein, (c) an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by an Investor Indemnified Party in writing specifically for use in the Registration Statement or a prospectus, (d) the use by an Investor Indemnified Party of an outdated or defective prospectus after the Company has notified such Investor in writing that such prospectus is outdated or defective or (e) an Investor Indemnified Party’s failure to send or give a copy of the prospectus or supplement (as then amended or supplemented), if required (and not exempted), to the persons asserting an untrue statement or omission or alleged untrue statement or omission at or prior to the written confirmation of the sale of Registrable Securities.
Section 8.2. Indemnification by the Investor. The Investor agrees to indemnify and hold harmless, to the fullest extent permitted by law, the Company, the officers, directors, partners, members and
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employees of the Company, each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members and employees of each such controlling Person (each, a “Company Indemnified Party”), against any losses, claims, damages, liabilities and expenses (including reasonable attorney fees), to which such Company Indemnified Party may become subject under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based in whole or in part on any untrue statement or alleged untrue statement or omission or alleged omission of any material fact relating to the Investor contained in any Registration Statement, any preliminary prospectus or final prospectus thereto, or any amendment or supplement thereof, and will reimburse each Company Indemnified Party for legal and other expenses reasonably incurred as such expenses are reasonably incurred by such Company Indemnified Party in connection with investigating, defending, settling, compromising or paying such loss, claim, damage, liability, expense or action; provided, however, that the Investor will be liable in any such case only to the extent that such untrue statement or omission relating to the Investor is contained in information furnished in writing by the Investor to the Company specifically for inclusion in the Registration Statement or prospectus or amendment or supplement thereto. In no event shall the liability of the Investor be greater than the dollar amount of the proceeds (net of all expenses paid by the Investor in connection with any claim relating to this Section 8.2 and the amount of any damages the Investor has otherwise been required to pay by reason of such untrue statement or omission) received by the Investor upon the sale of the Registrable Securities included in such Registration Statement giving rise to such indemnification obligation.
Section 8.3. Indemnification Procedure. Promptly after any indemnified party hereunder (the “Indemnified Party”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third Person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying Party”) written notice of such claim or the commencement of such action, suit or proceeding, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (a) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (b) if (i) the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (ii) the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not include any admission of wrongdoing or malfeasance by, the Indemnified Party.
Section 9. Miscellaneous.
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Section 9.1. Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investor, as applicable. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties.
Section 9.2. Counterparts; Email. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 9.3. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
Section 9.4. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified or (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day. All communications shall be sent to the respective parties at their electronic mail address or address as set forth below, or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 9.4.
If to the Company:
ADC Therapeutics SA
c/o ADC Therapeutics America, Inc.
430 Mountain Avenue, 4th Floor
Murray Hill, New Jersey 07974
Attention: Peter Graham
Email: peter.graham@adctherapeutics.com
With a copy (which will not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Attention: Yasin Keshvargar
Email: yasin.keshvargar@davispolk.com
If to the Investor:
to the contact information set forth on the signature page hereto.
Section 9.5. Expenses. The parties hereto shall pay their own costs and expenses in connection herewith regardless of whether the transactions contemplated hereby are consummated.
Section 9.6. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investor; provided that, notwithstanding the foregoing, Section 7.9 may be amended and the observance of any term of Section 7.9 may be waived (either generally or in a particular instance and either retroactively or prospectively) with the written consent of the Company and the Persons holding a majority of all securities sold in the PIPE Transaction then entitled to registration rights substantially similar to those set forth in Section 7.9. Notwithstanding anything to the contrary contained herein, no provision of this Agreement that is for the benefit of, or grants any right, protection, exculpation or right of reliance to, any Placement Agent or any of such Placement Agent’s Affiliates or representatives, may be amended, modified or waived without the prior written consent of such Placement Agent.
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Section 9.7. Publicity. Except as set forth above, no public release or announcement concerning the transactions contemplated hereby shall be issued by the Company or the Investor without the prior written consent of the Company (in the case of a release or announcement by the Investor) or the Investor (in the case of a release or announcement by the Company) (which consents shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange or securities market, in which case (other than with respect to any filings by the Investor required by Section 13 or Section 16 of the Exchange Act) the Company or the Investor, as the case may be, shall allow the Investor or the Company, as applicable, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance.
Section 9.8. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
Section 9.9. No Third-Party Beneficiaries. The Placement Agents shall be third-party beneficiaries of (i) the representations and warranties of the Company in Section 4 hereof and the representations and warranties of the Investor in Section 5 hereof and (ii) Section 9.10 hereof. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 8 and this Section 9.9.
Section 9.10. Exculpation of the Placement Agents. Each party hereto agrees for the express benefit of the Placements Agents and their Affiliates and representatives that:
(a) None of the Placement Agents, their respective Affiliates or any of their representatives (i) has any duties or obligations with respect to the transactions contemplated by the Transaction Documents, other than those specifically set forth herein or in the engagement letter, dated as of September 29, 2026, between the Company and the Placement Agents (the “Placement Agent Engagement Letter”), (ii) shall be liable for any improper payment made in accordance with the information provided by the Company, (iii) makes any representation or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to the Transaction Documents or in connection with any of the transactions contemplated hereby and thereby or (iv) shall be liable (x) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or any Transaction Document or (y) for anything which any of them may do or refrain from doing in connection with the Transaction Documents, except in each case, for such party’s own gross negligence, willful misconduct or bad faith.
(b) The Placement Agents, their Affiliates and their representatives shall be entitled to (i) rely on, and shall be protected in acting upon, any certificate, instrument, notice, letter, opinion or any other document or security delivered to any of them by or on behalf of the Company, and (ii) be indemnified by the Company for acting as the Placement Agents hereunder pursuant to the indemnification provisions set forth in the Placement Agent Engagement Letter.
Section 9.11. Entire Agreement. The Transaction Documents, including the signature pages and exhibits thereto, and any oral or written agreement between the Company and the Investor regarding confidentiality matters that was entered into in connection with the transactions contemplated hereby, constitute the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof.
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Section 9.12. Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.
Section 9.13. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof (other than Sections 5-1401 and 5-1402 of the General Obligations Law). Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
|
ADC Therapeutics SA | |||
| By: | |||
| Name: | Ameet Mallik | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
| [●] | |||
| By: | |||
| Name: | |||
| Title: | |||
Number of Shares:
Number of Pre-Funded Warrants:
Notice Information:
[Signature Page to Securities Purchase Agreement]
Exhibit A
Form of Warrant
[attached]
Exhibit A
Annex A
Investor Questionnaire
This Investor Questionnaire (“Questionnaire”) must be completed by each potential investor in connection with the offer and sale of the securities (the “Securities”) by ADC Therapeutics SA (the “Corporation”). The Securities are being offered and sold by the Corporation without registration under the Securities Act of 1933, as amended (the “Securities Act”), and the securities laws of certain states, in reliance on the exemptions contained in Section 4(a)(2) of the Securities Act and in reliance on similar exemptions under applicable state laws. The Corporation must determine that a potential investor meets certain suitability requirements before offering or selling the Securities to such investor. The purpose of this Questionnaire is to assure the Corporation that each investor will meet the applicable suitability requirements. The information supplied by you will be used in determining whether you meet such criteria, and reliance upon the private offering exemptions from registration is based in part on the information herein supplied.
This Questionnaire does not constitute an offer to sell or a solicitation of an offer to buy any security. By signing this Questionnaire, you will be authorizing the Corporation to provide a completed copy of this Questionnaire to such parties as the Corporation deems appropriate in order to ensure that the offer and sale of the Securities will not result in a violation of the Securities Act or the securities laws of any state and that you otherwise satisfy the suitability standards applicable to purchasers of the Securities. All potential investors must answer all applicable questions and complete, date and sign this Questionnaire. Please print or type your responses and attach additional sheets of paper if necessary to complete your answers to any item.
PART A. BACKGROUND INFORMATION
Name of Beneficial Owner of the Securities:
Name of Holder: ______________________________________________________________________
Address: ______________________________________________________________________
Type of entity: _________________________
State of formation: _____________________ Approximate date of formation: __________________
Telephone number: _______________________
Email: _______________________
Were you formed for the purpose of investing in the securities being offered? Yes ☐ No ☐
PART B. INVESTOR STATUS
QUALIFIED INSTITUTIONAL BUYER STATUS
(Please check the applicable subparagraphs):
| ☐ | We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
| OR |
| B. | ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs): |
| 1. | ☐ We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
| 2. | ☐ We are not a natural person. |
Appendix I
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”
| ☐ | Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
| ☐ | Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000, or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; |
| ☐ | Any private business development company; |
| ☐ | Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; |
| ☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
| ☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 calendar days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability; |
| ☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
| ☐ | Any trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person; |
| ☐ | Any entity in which all of the equity owners are accredited investors; |
| ☐ | Any entity of a type not listed first, second, third, fourth, ninth or tenth bullets of this section, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; |
| ☐ | Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Securities and Exchange Commission has designated as qualifying an individual for accredited investor status; |
| ☐ | Any natural person who is a “knowledgeable employee” as defined in rule 3c-5(a)(4) under the Investment Company Act of 1940 of the issuer of the securities being offered or sold where the issuer would be an |
Appendix I
investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act;
| ☐ | Any “family office,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended, with assets under management in excess of $5,000,000, not formed to acquire the securities offered, and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; or |
| ☐ | Any “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended, of a family office meeting the requirements set forth above and whose prospective investment in the issuer is directed by such family office pursuant to the requirements set forth above. |
| 3a. | Please indicate whether or not the Investor is, or is acting (directly or indirectly) on behalf of, (i) an employee benefit plan (within the meaning of Section 3(3) of ERISA), whether or not such plan is subject to ERISA, (ii) a plan, individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Code, whether or not such plan, account or arrangement is subject to Section 4975 of the Code, (iii) an insurance company using general account assets, if such general account assets are deemed to include the assets of any of the foregoing types of plans, accounts or arrangements for purposes of Title I of ERISA or Section 4975 of the Code under Section 401(c)(1)(A) of ERISA or the regulations promulgated thereunder, or (iv) an entity which is deemed to hold the assets of any of the foregoing types of plans, accounts or arrangements (each of the foregoing described in clauses (i), (ii), (iii) and (iv) being referred to as a “Plan Investor”). |
| ☐ | Yes |
| ☐ | No |
| 3b. | If question 3a above was answered “Yes,” please indicate whether or not the Plan Investor is subject to Title I of ERISA or Section 4975 of the Code. |
| ☐ | Yes |
| ☐ | No |
| 3c. | If question 3b above was answered “Yes,” please indicate what percentage of the Plan Investor’s assets invested in the Company are the assets of “benefit plan investors” as defined in Section 3(42) of ERISA. |
| __________________________% |
| By: | ||
| Name: | ||
| Title: | ||
Appendix I
Exhibit 10.2
THIS WARRANT AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT RELATED THERETO THAT IS IN EFFECT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.
WARRANT
TO PURCHASE COMMON SHARES OF
ADC THERAPEUTICS SA
| No. W-PF-[#] | October , 2026 |
The undersigned, ADC Therapeutics SA, a Swiss stock corporation (société anonyme) organized under the laws of Switzerland (together with its successors and assigns, the “Company”), hereby grants to [INVESTOR], subject to the terms and conditions herein, the right to subscribe for and purchase, at the Exercise Price per share, the Warrant Shares.
Section 1. Definitions. Capitalized terms used but not otherwise defined in this Warrant shall have the following meanings:
“Affiliates” means any affiliates (as defined in Rule 405 under the Securities Act) of the Warrantholder.
“Articles of Association” means the Articles of Association of the Company, as may be amended, modified, supplemented or restated from time to time in accordance with its terms and pursuant to applicable law.
“Business Day” means any day other than Saturday, Sunday or any other day on which banking institutions in the City of New York or in Lausanne, Switzerland are closed for business.
“Common Shares” means the Company’s common shares, par value CHF 0.08 per share, as presently constituted under the Articles of Association, and any class and/or series of Company capital stock for or into which such common shares may be converted or exchanged in a reorganization, recapitalization or similar transaction.
“Effective Date” means October , 2026.
“Exchange” means the New York Stock Exchange, or if the Common Shares are no longer listed on the New York Stock Exchange, the other securities exchange or market on which the Common Shares are then being principally traded.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Exercise Date” means, for any given exercise of this Warrant, the date on which the conditions to such exercise as set forth in Section 3(a) shall have been satisfied at or prior to 5:00 P.M., Eastern Time, on a Business Day, including, without limitation, the receipt by the Company of the applicable Exercise Price, it being understood that, if the conditions to such exercise are satisfied after 5:00 P.M., Eastern Time on a Business Day or are satisfied outside of a Business Day, then the Exercise Date shall be deemed to be the next Business Day.
“Exercise Price” means CHF 0.08 per Warrant Share.
“Liquid Sale” means a Merger Event in which the consideration received by the Company’s shareholders consists solely of cash and/or Marketable Securities.
“Marketable Securities,” in connection with a Merger Event, means securities meeting all of the following requirements: (i) the issuer of such securities is then subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act and is then current in its filing of all required reports and other information under the Securities Act and the Exchange Act; (ii) the class and series of such securities that would be received by the Warrantholder in such Merger Event were the Warrantholder to exercise this Warrant on or prior to the closing of
such Merger Event is then traded on a national securities exchange or over-the-counter market; and (iii) following the closing of such Merger Event, the Warrantholder would not be restricted from publicly re-selling all of such securities that would be received by the Warrantholder in such Merger Event were the Warrantholder to exercise this Warrant on or prior to the closing of such Merger Event, except to the extent that any such restriction (x) arises solely under federal or state securities laws, rules or regulations, and (y) does not extend beyond six months from the closing of such Merger Event.
“Merger Event” means any of the following: (i) a sale, lease or other transfer of all or substantially all assets of the Company, (ii) any merger or consolidation involving the Company in which the Company is not the surviving entity or in which the outstanding shares of the Company’s capital stock are otherwise converted into or exchanged for shares of capital stock or other equity securities or property of another entity, or (iii) any sale by holders of the outstanding voting equity securities of the Company in a single transaction or series of related transactions of shares constituting a majority of the outstanding combined voting power of the Company.
“Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity.
“Purchase Price” means USD 1.32400 multiplied by the number of Warrant Shares on the Effective Date.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Trading Day” means a day on which the Exchange is open for trading.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed or quoted on an Exchange, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date) on such market as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Shares are not then listed on an Exchange, the volume weighted average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Common Share so reported, or (d) in all other cases, the fair market value of a Common Share as determined by the Company’s board of directors in good faith.
“Warrant” means this warrant and any other warrants of like tenor issued in substitution or exchange for any thereof pursuant to the terms of this Warrant.
“Warrantholder” means the initial holder of the Warrant or its registered assign.
“Warrant Shares” means initially [NUMBER] Common Shares, and thereafter subject to adjustment as set forth herein, including reduction for each such Common Share as to which this Warrant has been exercised hereunder.
Section 2. Term.
(a) Term. The right to subscribe for and purchase Common Shares as granted herein shall commence on the Effective Date and, subject to Section 6(a), shall be exercisable until 4:00 P.M. (Zurich time) on the tenth anniversary of the Effective Date (such period, the “Term”). The Warrantholder shall not be entitled to the return or refund of all, or any portion, of the Purchase Price for any reason whatsoever, including in the event this Warrant shall not have been exercised during the Term.
(b) Replacement Warrant. At any time during the last 90 calendar days before the end of the Term, the Warrantholder shall have the right to request the Company, upon the Warrantholder’s return of this Warrant, to exchange this Warrant for a new warrant for the Warrant Shares then remaining under this Warrant, in form and substance substantially similar to this Warrant (with a subsequent ten year exercise period) (the “Replacement Warrant”). Within ten Business Days after the receipt of such request and the physical surrender of this Warrant to the Company, the Company shall issue and deliver the Replacement Warrant to the Warrantholder.
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Section 3. Exercise of the Purchase Rights.
(a) Exercise. The purchase rights represented by this Warrant are exercisable by the Warrantholder, in whole or in part (but not in relation to any fraction of a Common Share), at any time and from time to time, during the Term by tendering to the Company (by electronic mail in accordance with Section 11(c)) a duly completed and executed notice of exercise in the form attached as Exhibit A hereto (each, a “Notice of Exercise”), and payment of the applicable Exercise Price for all Warrant Shares to which the Notice of Exercise relates; provided that any exercise of the purchase rights represented by this Warrant must be for at least the lesser of (x) 50,000 Warrant Shares and (y) all remaining Warrant Shares available for purchase under this Warrant. Once received by the Company, a Notice of Exercise may not be revoked without the Company’s written consent.
(b) Exercise Price. The Warrantholder must pay the applicable Exercise Price for all Warrant Shares to which the applicable Notice of Exercise relates, in cash and without any deductions (including for bank fees) or withholdings, on the Exercise Date via wire transfer of immediately available funds to the bank account set out in Exhibit A hereto or to any other bank account designated by the Company to the Warrantholder in writing from time to time, unless the cashless exercise procedure specified in Section 3(g) below is specified in the applicable Notice of Exercise.
(c) Issuance of Warrant Shares. The Warrant Shares to be delivered upon the exercise of Warrants shall be, at the election of the Company, existing Common Shares held by the Company or newly issued Common Shares from the Company’s capital range (Kapitalband) or newly issued Common Shares from the Company’s conditional share capital (bedingtes Aktienkapital). Such Warrant Shares shall be in uncertificated form in accordance with article 973c CO as uncertificated securities (Wertrechte). Nothing in this Warrant shall be construed as requiring the Company to hold a certain amount of Common Shares in treasury at any time.
(d) Delivery of Common Shares. In the event of any exercise of the rights represented by this Warrant in accordance with and subject to the terms and conditions hereof, the Common Shares so purchased shall be delivered by the Company by causing the Company’s transfer agent (“Transfer Agent”) to electronically transmit the Common Shares issuable upon such exercise to the Warrantholder by crediting such Warrantholder’s account at the Transfer Agent within two Business Days of the Exercise Date (the “Delivery Deadline”); provided that the Company shall not be in default if the Company is unable to deliver Common Shares by the Delivery Deadline due to the relevant bank’s failure to issue, or delay in issuing, a confirmation of payment of the Exercise Price.
(e) Surrender and Cancellation. Except as provided in Section 2(b), the Warrantholder shall not be required to physically surrender this Warrant to the Company until the Warrantholder has purchased all of the Common Shares available hereunder and this Warrant has been exercised in full, in which case the Warrantholder shall surrender this Warrant to the Company for cancellation within three Business Days following the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant shall lower the number of Warrant Shares available hereunder by an amount equal to the applicable number of Warrant Shares purchased. The Warrantholder and the Company shall maintain records showing the number of Common Shares purchased and the remaining number of Common Shares available hereunder. The Warrantholder and any assignee of the Warrantholder, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Common Shares available hereunder, the Warrant Shares (and, therefore, the number of Common Shares available for purchase hereunder) at any given time may be less than the amount stated herein.
(f) Limitations on Exercise. The Warrantholder shall not have the right to exercise the rights represented by this Warrant, and the Company shall not effect any exercise of this Warrant, to the extent that after giving effect to such exercise, such Warrantholder (together with such Warrantholder’s Affiliates, any Persons acting as a group (as such term is used for purposes of Section 13(d) of the Exchange Act) together with the Warrantholder or its Affiliates, and any other Persons whose beneficial ownership of Common Shares is aggregated with the Warrantholder for purposes of Section 13(d) of the Exchange Act (such Persons, collectively, “Attribution Parties”)) would beneficially own in excess of 9.99% (the “Maximum Percentage”) of Common Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Common Shares beneficially owned by the Warrantholder and its Affiliates and Attribution Parties shall include the number of Common Shares issuable upon exercise of the rights represented by this Warrant with respect to which the determination of such sentence is being made, but shall exclude Common Shares which would be issuable upon
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(i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Warrantholder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Warrantholder or any of its Affiliates or Attribution Parties (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act, it being acknowledged that the Company is not representing to the Warrantholder that such calculation is in compliance with Section 13(d) of the Exchange Act. To the extent that the limitation contained in this Section 3(f) applies, the determination of whether this Warrant is exercisable and of which portion of this Warrant is exercisable shall be in the sole discretion of the Warrantholder and the submission of a Notice of Exercise shall be deemed to be the Warrantholder determination of whether this Warrant is exercisable and of which portion of this Warrant is exercisable, and the Company shall have no obligation to verify or confirm the accuracy of such determination. For purposes of this Warrant, in determining the number of outstanding Common Shares, the Warrantholder may rely on the number of outstanding Common Shares as reflected in (i) the Company’s most recent Form 10-K or Form 10-Q or other public filing by the Company with the SEC, as the case may be, (ii) a more recent public announcement by the Company or (iii) any other notice by the Company setting forth the number of Common Shares outstanding. Upon the written or oral request of the Warrantholder, which request indicates that it is being made pursuant to this Warrant, the Company shall within two Business Days confirm orally or in writing to the Warrantholder the number of Common Shares then outstanding. Upon delivery of a written notice to the Company, the Warrantholder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 19.99% as specified in such notice; provided that any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company. For purposes of clarity, the Common Shares issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Warrantholder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
(g) Cashless Exercise. Notwithstanding anything to the contrary set forth herein but subject to Section 3(h), this Warrant may be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Warrantholder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day or (ii) in all other cases, the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise;
(B) = the Exercise Price of this Warrant, as adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that for the purpose of Rule 144 under the Securities Act (as in effect on the Effective Date), the holding period of the Warrant Shares being issued may be tacked on to the Warrants being exercised. The Company agrees not to take any position contrary to this Section 3(g).
(h) Limitations on Cashless Exercise. In addition to any other limitations pursuant to this Warrant on the exercise of the rights represented by this Warrant, the following shall apply with respect to every cashless exercise pursuant to Section 3(g): If the Company, at the time of its receipt of an Exercise Notice electing a cashless exercise, (i) does not, or has reason to believe that it does not, have a sufficient amount of freely distributable equity to fund the nominal value of the number of Warrant Shares that it would be required to deliver upon such cashless
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exercise and (ii) (1) holds Common Shares representing more than 2.00% of its share capital registered in the commercial register at that time (the “Minimum Stock”) in treasury, then the Company shall not be obliged (but still has the right, at its sole discretion) to deliver more than such number of Warrant Shares to the Warrantholder as exceeds the Minimum Stock and (2) holds up to the Minimum Stock in treasury, then the Company shall not be obliged to deliver any Warrant Shares to the Warrantholder. The respective Exercise Notice shall be deemed to be null and void to the extent the Warrantholder receives fewer Warrant Shares pursuant to this Section 3(h) than such Exercise Notice relates to. Nothing in this Section 3(h) shall prevent the Warrantholder from duly exercising the rights represented by this Warrant with payment of the Exercise Price in cash.
Section 4. No Rights as Shareholder. Without limitation of any provision hereof, the Warrantholder agrees that this Warrant does not entitle the Warrantholder to any voting rights or other rights as a shareholder of the Company prior to the delivery of any Common Shares to the Warrantholder upon exercise of any of the purchase rights set forth in this Warrant.
Section 5. Warrantholder Registry. The Company shall maintain a registry showing the name and address of the registered holder of this Warrant. The Warrantholder’s initial address, for purposes of such registry, is set forth in Section 11(c) below. The Warrantholder may change such address by giving written notice of such changed address to the Company.
Section 6. Adjustments and Other Events. The Exercise Price and the number of Common Shares purchasable hereunder are subject to adjustment from time to time, as follows; provided that no single event shall cause an adjustment or distribution under more than one subsection of this Section 6 so as to result in duplication.
(a) Merger Event. If, during the Term, a Merger Event that is a Liquid Sale occurs with respect to the Company, the Warrantholder shall be deemed to have exercised the then-remaining purchase rights represented by this Warrant in full (without regard for Section 3(f)) immediately prior to the closing of such Liquid Sale, with the applicable Exercise Price to be withheld by the Company from the proceeds to which the Warrantholder would otherwise be entitled in connection with such Liquid Sale. If, during the Term, a Merger Event that is not a Liquid Sale occurs with respect to the Company, the Company shall cause the successor or surviving entity to assume this Warrant and the obligations of the Company hereunder on the closing of such Merger Event (with such appropriate adjustment to accommodate any changes in the jurisdiction of incorporation), and thereafter this Warrant shall represent the right to purchase the same number and type of securities or other property as the Warrantholder would have received in consideration for the Common Shares issuable hereunder had it exercised this Warrant in full (without regard for Section 3(f)) as of immediately prior to such closing, at an aggregate Exercise Price no greater than the aggregate Exercise Price in effect as of immediately prior to such closing, and subject to further adjustment from time to time in accordance with the provisions of this Warrant. The provisions of this Section 6(a) shall similarly apply to successive Merger Events.
(b) Reclassification of Shares. Except for Merger Events subject to Section 6(a), if the Company at any time shall, by combination, reclassification, exchange or subdivision of securities or otherwise, change any of the securities as to which purchase rights under this Warrant exist into the same or a different number of securities of any other class or classes of securities, this Warrant shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities which were subject to the purchase rights under this Warrant immediately prior to such combination, reclassification, exchange, subdivision or other change. The provisions of this Section 6(b) shall similarly apply to successive combination, reclassification, exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall combine or subdivide its Common Shares, (i) in the case of a subdivision, the Exercise Price shall be proportionately decreased and the number of shares for which this Warrant is exercisable shall be proportionately increased, or (ii) in the case of a combination, the Exercise Price shall be proportionately increased and the number of shares for which this Warrant is exercisable shall be proportionately decreased.
(d) Dividends. If the Company at any time while this Warrant is outstanding and unexpired shall:
(i) pay a dividend with respect to the Common Shares payable in additional Common Shares, then the Exercise Price shall be adjusted, from and after the date of determination of shareholders
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entitled to receive such dividend, to that price determined by multiplying the Exercise Price in effect immediately prior to such date of determination by a fraction (A) the numerator of which shall be the total number of Common Shares outstanding immediately prior to such dividend or distribution, and (B) the denominator of which shall be the total number of Common Shares outstanding immediately after such dividend or distribution, and the number of Common Shares for which this Warrant is exercisable shall be proportionately increased; or
(ii) make any other dividend or distribution on or with respect to Common Shares, except any dividend or distribution specifically provided for in any other clause of this Section 6, then, in each such case, provision shall be made by the Company such that the Warrantholder shall receive a proportionate share of any such dividend or distribution as though it were the holder of the Common Shares (or other capital stock for which the Common Shares is convertible) as of the record date fixed for the determination of the shareholders of the Company entitled to receive such dividend or distribution without regard for Section 3(f) (a “Dividend Compensation Payment”).
(e) Limitations on Adjustments. Notwithstanding anything to the contrary in this Section 6, (i) all calculations under this Section 6 shall be made to the nearest one-hundredth (1/100th) of a cent or to the nearest one-tenth (l/10th) of a share, as the case may be, (ii) no adjustment in the Exercise Price shall be made if the amount of such adjustment would be less than $0.01, (iii) no adjustment in the number of Common Shares into which this Warrant is exercisable shall be made if the amount of such adjustment would be less than one (1) Common Share, and (iv) if an adjustment in Exercise Price would reduce the Exercise Price to an amount below the then-applicable par value of the Common Shares, then such adjustment in the Exercise Price shall reduce the Exercise Price to such par value of the Common Shares.
Section 7. Transfers. Subject to compliance with applicable federal and state securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the holder hereof (except for transfer taxes) by executing an assignment declaration in wet ink in the form attached as Exhibit B hereto (the “Transfer Notice”) and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer. Until the Company receives a copy of such duly signed Transfer Notice and, if applicable, such transfer taxes and other governmental charges, the Company may treat the registered owner hereof as the owner for all purposes. Upon receipt of a copy of such duly signed Transfer Notice and, if applicable, such transfer taxes and other governmental charges, the Company shall update its registry of warrantholders.
Section 8. Tax Matters.
(a) Withholding. The Company and its paying agent shall be entitled to deduct and withhold taxes on any Dividend Compensation Payment, or any other amount distributed or deemed distributed, to the extent required by applicable law. To the extent that any such amounts are so deducted or withheld and remitted to the applicable governmental authority, such deducted or withheld amounts shall be treated for all purposes of this Warrant as having been paid to the Person in respect of which such deduction or withholding was made. In the event the Company previously remitted any such amounts to a governmental authority on account of taxes required to be deducted or withheld in respect of any Dividend Compensation Payment, the Company shall be entitled (i) to offset any such amounts against any amounts otherwise payable in respect of such Warrant, any Common Shares otherwise required to be issued upon the exercise of such Warrant or any amounts otherwise payable in respect of Common Shares received upon the exercise of such Warrant, or (ii) to require the Person in respect of whom such deduction or withholding was made to reimburse the Company for such amounts (and such Person shall promptly so reimburse the Company upon demand). The Company shall provide a receipt or other evidence of payment of any taxes deducted or withheld reasonably acceptable to the Warrantholder within 30 days after making any deduction or withholding of such taxes and shall collaborate with and provide to the Warrantholder all documentation necessary to obtain a refund of such tax amounts deducted and withheld.
(b) Transfer and Stamp Taxes. Each party shall bear and pay any transfer, stamp, issue, registration, documentary, sales, use, or similar taxes or obligations imposed on such party with respect to any amounts payable in connection with this Warrant.
Section 9. Certain Representations and Agreements of the Company.
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The Company represents, covenants and agrees:
(a) This Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly issued.
(b) All Warrant Shares issuable upon the exercise of this Warrant pursuant to the terms hereof will be, upon issuance, validly issued, fully paid and non-assessable. The Company has allocated and reserved, and for so long as this Warrant is outstanding the Company will continue to reserve, the Company’s capital range under article 4a or the Company’s conditional share capital under article 4c of the Articles of Association in such an amount as is necessary to deliver such number of Common Shares as are required to settle the exercise in full of this Warrant.
(c) The Company shall take all such actions as may be necessary to ensure that all Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any securities exchange upon which the Warrant Shares will be listed upon their issuance.
(d) The board of directors of the Company will, as long as any Warrants are outstanding, not make any proposal to the general meeting of shareholders of the Company regarding the amendment or modification of any provision of the Articles of Association in any manner that would materially and adversely affect the powers, preferences or relative participating, optional or other special rights of the Common Shares in a manner which would disproportionately and adversely affect the rights of the Warrantholder.
Section 10. Certain Representations and Agreements of the Warrantholder.
The Warrantholder represents, covenants and agrees:
(a) This Warrant is, and the Common Shares issued upon exercise of this Warrant will be, acquired for the Warrantholder’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act.
(b) The Warrantholder is an institution that is an “accredited investor” within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act.
(c) No public market exists for the Warrants, and such market may never develop.
Section 11. Miscellaneous.
(a) Severability. In the event any one or more of the provisions of this Warrant shall for any reason be held invalid, illegal or unenforceable, the remaining provisions of this Warrant shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
(b) Successors and Assigns. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the Company and the Warrantholder and their respective successors and permitted assigns (subject to Section 6 with respect to the Warrantholder); provided that the Company shall not assign its obligations under this Warrant except in connection with a Merger Event as provided in Section 6(a).
(c) Notices. Except as otherwise provided herein, any notice, demand, request, consent, approval, declaration, service of process or other communication that is required, contemplated, or permitted under this Warrant or with respect to the subject matter hereof shall be in writing, and shall be deemed to have been validly served, given, delivered, and received: (i) for personal delivery, upon personal delivery to the party to be notified, or (ii) for email, upon the earlier of (x) confirmation of receipt (other than automatically generated confirmations of receipt), (y) if sent during normal business hours of the recipient, upon delivery and (z) if sent after normal business hours of the recipient, then on the next Business Day, and shall be addressed to the party to be notified as follows: (i) if to the Warrantholder: [●], or to such other address as each party may designate for itself by like notice.
(d) Entire Agreement; Amendments. This Warrant constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof, and supersedes and replaces in their entirety any prior
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proposals, term sheets, letters, negotiations or other documents or agreements, whether written or oral, with respect to the subject matter hereof. None of the terms of this Warrant may be amended except by an instrument executed by each of the parties hereto.
(e) No Waiver. No omission or delay by the Warrantholder at any time to enforce any right or remedy reserved to it, or to require performance of any of the terms, covenants or provisions hereof by the Company at any time designated, shall be a waiver of any such right or remedy to which the Warrantholder is entitled, nor shall it in any way affect the right of the Warrantholder to enforce such provisions thereafter during the term of this Warrant.
(f) Governing Law, Consent to Jurisdiction and Venue. This Warrant and any claim, controversy or dispute arising out of or related to this Warrant, any of the transactions contemplated hereby, the relationship of the Parties hereunder, or the interpretation and enforcement of the rights and duties of the Parties, whether arising in contract, tort or otherwise, shall be governed by and construed in accordance with the substantive laws of Switzerland, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Switzerland. The exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to this Warrant (or subsequent amendments thereof), including, without limitation, disputes, claims or controversies regarding its existence, validity, interpretation, performance, breach or termination, shall be the city of Lausanne, Switzerland.
(g) Counterparts. This Warrant and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts (including by facsimile or electronic delivery (PDF), and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument.
(h) Legends. To the extent required by applicable laws, this Warrant and the Common Shares issuable upon the exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion of such Common Shares, if any) may be imprinted with a restricted securities legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT RELATED THERETO THAT IS IN EFFECT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has duly executed this Warrant.
Dated: October , 2026.
|
ADC THERAPEUTICS SA
| |||
| By: | |||
| Name: | |||
| Title: | |||
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Dated: October , 2026.
Agreed and Acknowledged:
| [INVESTOR] | ||
| By: | ||
| By: | ||
| Name: | ||
| Title: | ||
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EXHIBIT A
FORM OF EXERCISE NOTICE
(To be executed by the registered holder hereof)
Reference is made to (i) the attached Warrant to Purchase Common Shares of ADC Therapeutics SA No. W-PF-_____ (the “Warrant”) and (ii) if applicable, article 4(c) of the articles of association of the Company.
The undersigned registered owner of the Warrant hereby irrevocably exercises the right to purchase represented by the Warrant for, and hereby purchases thereunder, ______ Common Shares (such number of Common Shares, the “Exercise Number”), of ADC THERAPEUTICS SA (the “Company”), as provided for therein in accordance with Section 3 and the other terms and conditions of the Warrant, as well as the articles of association of the Company. All capitalized terms used but not defined in this exercise notice shall have the meanings ascribed thereto in the Warrant. Following this exercise, the Warrant Shares shall be reduced by the Exercise Number.
Payment shall take the form of (check applicable box):
[__] in cash to the following ADC Therapeutics SA bank account:
| Account number: | 381032793732 |
| Active ACH Blocks/Filters on file: | Yes |
| Routing number ACH/EFT: | 021200339 |
| Routing number DOM. WIRES: | 026009593 |
| SWIFT Code INTL WIRES: | BOFAUS3N (U.S DOMESTIC) BOFAUS6S (FOREIGN CURRENCY) |
| Account name: | ADC THERAPEUTICS SA |
| Account Address: | BIOPOLE ROUTE DE LA CORNICHE 3 B, EPALINGES 1066 |
Or
[__] the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 3(g), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 3(g).
Please issue the Common Shares in the name of the undersigned and to the following address:
Issue to: ____________________________
Address: ____________________________
Email Address: ____________________________
DTC Details (if applicable): ____________________________
| Dated: | Name of Holder | |
| Signature | ||
| Address | ||
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EXHIBIT B
TRANSFER NOTICE
(To transfer or assign the enclosed Warrant execute this form and supply required information. Do not use this form to purchase shares.)
The enclosed Warrant and all rights evidenced thereby are hereby transferred and assigned to:
| Name of Transferee: | |
| Address of Transferee: | |
| Name of Transferor: | |
| Signature of Transferor: | |
| Dated: |
Accepted:
| Name of Transferee: | |
| Signature of Transferee: | |
| Dated: |
NOTE: The name of the transferor must correspond with the name as it appears on the face of the Warrant. The signature(s) of the individual(s) signing this Transfer Notice on behalf of the transferor must be made in wet ink. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the enclosed Warrant.
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Exhibit 10.3
SECOND AMENDMENT TO LOAN AGREEMENT AND GUARANTY AND FIRST AMENDMENT TO FEE LETTER
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND GUARANTY AND FIRST AMENDMENT TO FEE LETTER (this “Amendment”) is entered into as of October 7, 2026 among ADC THERAPEUTICS SA, a company formed under the laws of Switzerland (the “Borrower”), each of the Borrower’s Subsidiaries party hereto, the Lenders party hereto and BLUE OWL OPPORTUNISTIC LENDING MASTER FUND I, L.P. (formerly known as Owl Rock Opportunistic Master Fund I, L.P.), a New York limited partnership, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
WITNESSETH:
WHEREAS, the Borrower, each of the Borrower’s Subsidiaries party thereto from time to time, the Agent and the Lenders party thereto from time to time are parties to that certain Loan Agreement and Guaranty, dated as of August 15, 2022 (as amended by that certain First Amendment to Loan Agreement and Guaranty dated as of January 16, 2024 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Loan Agreement” and as amended by this Amendment, the “Loan Agreement”; unless otherwise defined herein, all capitalized terms used herein that are defined in the Loan Agreement shall have the meanings given such terms in the Loan Agreement);
WHEREAS, the Borrower, the Agent and each of the Lenders is party to that certain Fee Letter, dated August 15, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Fee Letter” and as amended by this Amendment, the “Fee Letter”);
WHEREAS, on or prior to the Second Amendment Effective Date (as defined below), the Borrower will prepay a portion of outstanding principal amount of the Term Loans, together with all accrued and unpaid interest with respect thereto, any Yield Protection Premium (if applicable), the Exit Fee (as defined in the Fee Letter after giving effect to this Amendment), any SOFR funding breakage costs in accordance with Section 2.7 of the Loan Agreement and all other fees and amounts owing under the Loan Documents at such time, such that immediately following such prepayment, the aggregate principal amount of the Term Loans outstanding under the Loan Agreement shall be $50,000,000 (the “Second Amendment Prepayment”); provided, for the avoidance of doubt, the Borrower’s regularly scheduled amortization payment on September 30, 2026 shall be deemed part of the Second Amendment Prepayment for all purposes hereunder, under the Fee Letter and under the Loan Agreement notwithstanding being made prior to the Second Amendment Effective Date including with respect to payment of the Exit Fee;
WHEREAS, in anticipation of the Second Amendment Prepayment, the Borrower has requested that the Agent and the Lenders make, and, subject to the terms and conditions of this Amendment, the Agent and the Lenders party hereto (constituting all of the Lenders as of the date hereof) have agreed to make, certain other amendments to the Existing Loan Agreement and the Existing Fee Letter as more fully set forth herein.
NOW THEREFORE, in consideration of the premises contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Amendments to Existing Loan Agreement.
Subject to the occurrence of the Second Amendment Effective Date and in reliance upon the representations, warranties, covenants and agreements contained in this Amendment, the parties hereto hereby agree as follows:
1.1 Section 1 of the Existing Loan Agreement is hereby amended by inserting the following defined terms in the appropriate alphabetical location:
“Second Amendment” means that certain Second Amendment to Loan Agreement and Guaranty and First Amendment to Fee Letter, dated as of October 7, 2026, by and among the Borrower, the other Loan Parties, the Agent and the Lenders.
“Second Amendment Effective Date” has the meaning specified in the Second Amendment.
1.2 Section 1 of the Existing Loan Agreement is hereby amended by amending and restating the following defined terms in their entirety to read as follows:
“Fee Letter” means the Fee Letter, dated the date of this Agreement, among the Borrower, the Lenders party thereto and the Agent, as amended by the Second Amendment, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Permitted Borrower Reorganization” means a transaction or series of substantially concurrent transactions, the purpose of which is to result in the Borrower being either (x) redomiciled as a Delaware corporation or (y) being merged with or into a Delaware corporation (that is a shell entity formed for the purposes of such transaction), with such Delaware corporation being the surviving entity, in a transaction that does not constitute a Change in Control, in each case of clauses (x) and (y), including any transaction or series of transactions effecting the transfer of assets, liabilities and contracts of the Borrower to one or more new or existing wholly owned direct or indirect Swiss or U.S. subsidiaries of the Borrower, each of which subsidiary shall become a Loan Party if Collateral should be transferred to it prior to or substantially concurrently with such transfer; provided that (i) with respect to a transaction described in clause (y) above, such Delaware corporation shall have expressly assumed all Obligations as the “Borrower” under this Agreement and the other Loan Documents, pursuant to documentation in the form agreed between the Borrower and the Agent prior to the First Amendment Effective Date, (ii) to the extent such transaction or series of transactions would constitute a “Merger Event” as defined in the Warrants, or in which Section 7(b) of the Warrants would apply, such transaction or series of transactions shall provide for the exchange of any outstanding Warrants of the Borrower at such time for warrants to acquire common stock of such Delaware corporation on terms no less favorable to the holder thereof than under the Warrants, (iii) no Default or Event of
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Default shall have occurred and be continuing, or would result from such transaction(s), (iv) each of the representations and warranties of the Loan Parties set forth in Section 5 of this Agreement (except that the date “December 31, 2021” in Section 5.4 shall be deemed to be “December 31, 2025” and the Borrower shall be permitted to be a Delaware corporation) and in the other Loan Documents shall be true and correct in all material respects (or, if such representation or warranty is already qualified as to materiality or Material Adverse Effect, in all respects) with the same effect as though made on and as of the date of such transaction(s), except to the extent such representations and warranties expressly relate to an earlier date, (v) the Agent shall have received the documents described in Section 4.1(e), (f) and (g) of the Loan Agreement for each new Loan Party formed or organized for the purposes of the Permitted Borrower Reorganization, to the extent applicable in the new Loan Party's jurisdiction (or, to the extent certified versions of the documents described in Section 4.1(e) of the Loan Agreement are not available, then final forms of such documents, with certified versions to be delivered to the Agent promptly upon the same becoming available) and Section 4.1(k) for the Borrower or the new Borrower, as applicable, (vi) the Collateral immediately after giving effect to such transaction(s) is substantially the same as the Collateral immediately prior to giving effect to such transaction(s), and the Lien and security interest of Agent in the Collateral is not impaired as a result of such transaction(s), and the Loan Parties shall take all actions reasonably requested by the Agent in connection with granting and/or perfecting the Liens and security interest of the Agent in the Collateral (including, without limitation, with respect to any Swiss Intellectual Property transferred in connection with such transaction(s), prior or contemporaneous filing of new or amended security interest filings with the Swiss Federal Institute of Intellectual Property), (vii) the Borrower has received advice from a nationally recognized tax advisor, and, solely with respect to any Swiss taxes, Swiss tax rulings confirming, that (A) such transaction(s) should not result in a deemed exchange of the Term Loan for U.S. federal income tax purposes, (B) such transaction(s) should qualify as a reorganization within the meaning of Section 368(a) of the Code for U.S. federal income tax purposes in which no gain would be recognized by the holders of the Warrants or the holders of the Common Shares, assuming that (x) the shareholders described in Treasury Regulations Section 1.367(b)-3(c)(1) make the election described in Treasury Regulations Section 1.367(b)-3(c)(3), (y) the shareholders who are treated as holding their Common Shares in a passive foreign investment company (within the meaning of Section 1297 of the Code) make a QEF election with respect to their Common Shares and (z) the currently applicable U.S. federal income tax rules governing holding warrants in a passive foreign investment company (within the meaning of Section 1297 of the Code) do not change in a manner that would reasonably be expected to cause any Lender to recognize gain in the reorganization as a result of holding the Warrants and (C) such transaction(s) do not otherwise result in (x) adverse income tax consequences in Switzerland for the Lenders, the holders of the Warrants or the holders of the Common Shares and/or (y) Swiss withholding tax consequences for the Borrower (or otherwise) which are adverse to the Lenders, the holders of the Warrants or the holders of the Common Shares, (viii) the Borrower, as promptly as reasonably possible and in any event in a timely manner, shall provide to each Lender such information necessary for each such Lender to make the election described in Treasury Regulations Section 1.367(b)-3(c)(3) and a QEF election with respect to its Common Shares, (ix) all earnings and profits amount as defined
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in Treasury Regulations Section 1.367(b)-2(d) is zero, (x) at least 10 Business Days prior to the anticipated effective date of such Permitted Borrower Reorganization, the Agent shall have received a certificate, in form and substance reasonably satisfactory to the Required Lenders, signed by an Authorized Officer of the Borrower and certifying that all the conditions set forth in this definition of “Permitted Borrower Reorganization” (other than clauses (viii) through (x)) shall be satisfied as of the date of such transaction(s), (xi) to the extent such transactions or series of transactions would lead to the transfer of assets of the Borrower which are subject to Liens and security interests created in favor of the Agent and/or the Lenders pursuant to the Loan Documents to a wholly owned direct or indirect subsidiary of the Borrower, the relevant parties hereto undertake to amend or restate the relevant Loan Documents to reflect such transfer of such assets to maintain such Liens and security interests and (xii) upon the occurrence of the Permitted Borrower Reorganization and the Borrower ceasing to be a taxable Person for Swiss withholding Tax purposes, automatically, and without the action of any Agent, any Loan Party or Lender, this Agreement shall be amended as set forth in Exhibit A to the First Amendment.
1.3 Section 1 of the Existing Loan Agreement is hereby amended by deleting the definition of “Principal Payment Date”.
1.4 Notwithstanding anything in the Existing Loan Agreement or any other Loan Document to the contrary, from and after the Second Amendment Effective Date no scheduled installment or amortization payment of principal of the Term Loans shall be due or payable prior to the Term Loan Maturity Date, and each reference in the Loan Agreement and the other Loan Documents to “Principal Payment Date” is hereby deleted; provided, that, for the avoidance of doubt, nothing in this Amendment shall restrict (i) the Agent’s or the Lenders’ right to accelerate the maturity of the Obligations in accordance with terms of the Loan Agreement or any other Loan Document or (ii) any voluntary prepayments allowed, or mandatory prepayments required, in accordance with the terms of the Loan Agreement and the other Loan Documents.
1.5 Section 2.2(e)(iii) of the Existing Loan Agreement is hereby amended and restated in its entirety to read as follows:
“(iii) The Borrower shall pay to the Agent for the account of each Lender on the earlier of the Term Loan Maturity Date and the date of the acceleration of the Secured Obligations hereunder, all outstanding Secured Obligations in full (together with the Exit Fee, accrued and unpaid interest, and any other accrued and unpaid charges thereon and all other obligations due and payable by the Borrower under this Agreement).”
1.6 Section 7.14 of the Existing Loan Agreement is hereby amended and restated in its entirety to read as follows:
“Minimum Liquidity. At all times prior to the Second Amendment Effective Date, the Loan Parties and their Subsidiaries shall maintain Qualified Cash of no less than $60,000,000 plus the Qualified Cash A/P Amount. For the avoidance of doubt, on and after the Second Amendment Effective Date, no compliance with this Section 7.14 shall be required. The Borrower shall provide Agent evidence of compliance with this Section 7.14 in each Compliance Certificate delivered for periods ending prior to the Second
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Amendment Effective Date, and upon request of the Agent or the Required Lenders, in form and substance reasonably acceptable to the Required Lenders and supporting documentation reasonably requested by the Agent or the Required Lenders (which supporting documentation may include bank statements upon the Agent’s or the Required Lenders’ request).”
1.7 Schedule 7.23 of the Existing Loan Agreement is hereby amended and restated in its entirety in the form attached hereto as Schedule 7.23.
1.8 Exhibit E to the Existing Loan Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit E.
SECTION 2. Amendment to Existing Fee Letter.
Subject to the occurrence of the Second Amendment Effective Date and in reliance upon the representations, warranties, covenants and agreements contained in this Amendment, the parties hereto hereby agree that paragraph (d) of the Existing Fee Letter is hereby amended and restated as set forth on Schedule FL hereto.
SECTION 3. Conditions Precedent. The effectiveness of this Amendment is subject to satisfaction of each of the following conditions precedent (the date on which all such conditions precedent have been so satisfied or waived in writing by the Agent and the Lenders shall be the “Second Amendment Effective Date”):
3.1 Executed Amendment. Agent shall have received counterparts of this Amendment duly executed by the Borrower, the other Loan Parties and each of the Lenders.
3.2 Second Amendment Prepayment. (i) Borrower shall have made the Second Amendment Prepayment in accordance with Section 2.6 of the Loan Agreement, and (ii) after giving effect to the Second Amendment Prepayment, the outstanding principal amount of the Term Loans shall be $50,000,000; provided that, for the avoidance of doubt, the Exit Fee payable with respect to the Second Amendment Prepayment shall be determined in accordance with the Fee Letter as amended by this Amendment.
3.3 Absence of Defaults. No Default or Event of Default shall have occurred and be continuing as of the date of the Second Amendment and immediately prior to giving effect to this Amendment, or immediately after giving effect to this Amendment.
3.4 Representations and Warranties. The representations and warranties set forth in Section 4 of this Amendment shall be true and correct as of the date of the Second Amendment and the Second Amendment Effective Date, respectively;
3.5 Fees and Expenses. The Borrower shall have paid all reasonable and documented out-of-pocket fees, costs and expenses due and payable to the Agent and each Lender and reimbursement of Agent’s and each Lender’s current expenses reimbursable pursuant to Section 11.12 of the Loan Agreement, including all reasonable and documented out-of-pocket expenses of the Agent and the Lenders incurred in connection with this Amendment (including the Agent’s
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and the Lenders’ legal fees and expenses reimbursable pursuant to Section 11.12 of the Loan Agreement); and
3.6 Outside Date. The Second Amendment Effective Date shall have occurred no later than October 31, 2026, or such later date as the Agent and the Lenders shall agree in writing in their respective sole discretion (the “Outside Date”).
SECTION 4. Representations and Warranties.
In order to induce the Agent and the Lenders to enter into this Amendment, each of the Borrower and the other Loan Parties hereby represent and warrants to the Agent and the Lenders that:
4.1 Accuracy of Representations and Warranties. Each of the representations and warranties of the Loan Parties set forth in Section 5 of the Loan Agreement (except that the date “December 31, 2021” in Section 5.4 shall be deemed to be “December 31, 2025”) and in the other Loan Documents are true and correct in all material respects (or, if such representation or warranty is already qualified as to materiality or Material Adverse Effect, in all respects) with the same effect as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date; provided that the applicable representation and warranties set forth in Section 5 of the Loan Agreement shall be qualified so as to exclude each of the relevant matters disclosed to the Agent and Lenders party hereto prior to the Second Amendment Effective Date.
4.2 No Conflicts. Each Loan Party’s execution, delivery and performance of this Amendment (i) have been duly authorized by all necessary corporate action of such Loan Party, (ii) will not result in the creation or imposition of any Lien upon the Collateral, other than Permitted Liens and the Liens created by the Loan Agreement and the other Loan Documents, (iii) do not violate any provisions of such Loan Party’s constitutional documents, trust deeds, or other Organizational Documents (as applicable), bylaws or other equivalent governing document, or any law, regulation, order, injunction, judgment, decree or writ to which such Loan Party is subject, and (iv) do not violate any material contract or agreement, including any Material Agreements, or require any material consent or approval of any other Person which has not already been obtained. The individual or individuals executing this Amendment are duly authorized to do so.
4.3 Enforceability. This Amendment constitute a legal, valid and binding obligation of each Loan Party party hereto, enforceable against each such Loan Party in accordance with its terms, except as the enforcement hereof may be limited by insolvency, bankruptcy, reorganization, moratorium or other similar applicable laws affecting creditors rights generally or by general equitable principles (whether considered in a proceeding in equity or at law).
4.4 Passive Foreign Investment Company. The Borrower, together with its consolidated subsidiaries, was not a passive foreign investment company (within the meaning of Section 1297 of the Code) for the year ended December 31, 2025.
4.5 Tax Treatment. The Borrower agrees (i) to consult with the Lenders before performing any reporting of the US tax consequences of the Amendment (e.g., on Form 8937 or otherwise), and shall cooperate with the Lenders on such reporting, and (ii) that the Amendment
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shall not result in (x) any adverse income tax consequences in Switzerland for the Lenders and/or (y) Swiss withholding tax consequences for the Borrower (or otherwise) which are adverse to the Lenders.
SECTION 5. Miscellaneous.
5.1 Confirmation and Effect. The provisions of the Loan Agreement (as amended by this Amendment) shall remain in full force and effect in accordance with its terms following the effectiveness of this Amendment, and this Amendment shall not constitute a waiver of any provision of the Loan Agreement or any other Loan Document. Each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof’, “herein”, or words of like import shall mean and be a reference to the Loan Agreement as amended hereby, and each reference to the Loan Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Loan Agreement shall mean and be a reference to the Loan Agreement as amended hereby.
5.2 Ratification and Affirmation of Loan Parties. Each Loan Party hereby ratifies and reaffirms (i) the Secured Obligations under and as defined in the Loan Agreement and all of the covenants, duties, indemnities, indebtedness and liabilities under the Loan Agreement and the other Loan Documents to which it is a party and (ii) the Liens and security interests created in favor of the Agent and/or the Lenders pursuant to the Loan Documents, which Liens and security interests are in full force and effect and shall continue in full force and effect during the term of the Loan Agreement, and shall continue to secure the Secured Obligations under and as defined in the Loan Agreement, in each case, on and subject to the terms and conditions set forth in the Loan Agreement and the other Loan Documents, and nothing herein shall be construed to deem any such Secured Obligations paid, or to release or terminate any Lien or security interest given to secure any such Secured Obligations or any guarantee thereof (the security interests created in favor of the Agent and/or the Lenders pursuant to the Loan Documents governed by Swiss law, the “Swiss Security Interests”). Each Loan Party confirms that, assuming all UCC financing statements naming the Agent, as secured party, and a Loan Party, as debtor, filed in connection with the Loan Agreement have not been terminated or amended, such UCC financing statements remain effective and authorized by the Loan Parties to continue perfection of the security interests in the Collateral.
5.3 Release. By its execution of the Amendment and in consideration of the agreements contained herein and other accommodations granted to the Loan Parties hereunder, each Loan Party, on behalf of itself and each of its Subsidiaries, and its or their successors, assigns and agents, hereby expressly forever waives, releases and discharges any and all claims (including cross-claims, counterclaims, and rights of setoff and recoupment), causes of action (whether direct or derivative in nature), demands, suits, costs, expenses and damages (collectively, the “Claims”) any of them may, as a result of actions or inactions occurring on or prior to the Second Amendment Effective Date, have or allege to have as of the date of this Amendment or at any time thereafter (and all defenses that may arise out of any of the foregoing) of any nature, description, or kind whatsoever, based in whole or in part on facts, whether actual, contingent or otherwise, now known, unknown, or subsequently discovered, whether arising in law, at equity or otherwise, against the Agent or any Lender, any of their respective Affiliates or any of the agents, principals, managers, managing members, members, stockholders, “controlling persons” (within the meaning of the United States federal securities laws), directors, officers, employees, attorneys, consultants,
7
advisors, trusts, trustors, beneficiaries, heirs, executors and administrators of each of the foregoing (collectively, the “Released Parties”) arising out of, or relating to, this Amendment, the Loan Agreement, the other Loan Documents and any or all of the actions and transactions contemplated hereby or thereby on or prior to the Second Amendment Effective Date, including any actual or alleged performance or non-performance of any of the Released Parties hereunder or under the Loan Documents, except in each case, to the extent of liabilities resulting solely from the gross negligence or willful misconduct of any Released Party (as determined by a court of competent jurisdiction in a final and non-appealable decision). Subject to the immediately preceding sentence, each Loan Party hereby acknowledges that the agreements in this Section 5.3 are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Claims. In entering into this Amendment, each Loan Party expressly disclaims any reliance on any representations, acts, or omissions by any of the Released Parties and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above does not depend in any way on any such representation, acts and/or omissions or the accuracy, completeness, or validity thereof. The provisions of this Section 5.3 shall survive the termination of the Loan Documents and the payment in full in of all Secured Obligations of the Loan Parties under or in respect of the Loan Agreement and other Loan Documents and all other amounts owing thereunder.
5.4 Parties in Interest. All of the terms and provisions of this Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
5.5 Counterparts; Electronic Execution. This Amendment and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts, and by different parties hereto in separate counterparts, each of which when so delivered shall be deemed an original, but all of which counterparts shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act and/or any other similar, applicable laws of the jurisdiction of formation, organization or incorporation, as applicable, of any Loan Party.
5.6 Entire Agreement. This Amendment and the other Loan Documents constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and thereof, and supersede and replace in their entirety any prior proposals, term sheets, non-disclosure or confidentiality agreements, letters, negotiations or other documents or agreements, whether written or oral, with respect to the subject matter hereof or thereof. EACH LOAN PARTY ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IN DECIDING TO ENTER
8
INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS OR IN TAKING OR NOT TAKING ANY ACTION HEREUNDER OR THEREUNDER, IT HAS NOT RELIED, AND WILL NOT RELY, ON ANY STATEMENT, REPRESENTATION, WARRANTY, COVENANT, AGREEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, OF OR WITH AGENT OR THE LENDERS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS.
5.7 Severability. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective only to the extent and duration of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
5.8 Loan Document. The parties hereto acknowledge and agree that this Amendment is a Loan Document.
5.9 Governing Law; Consent to Jurisdiction and Venue; Mutual Waiver of Jury Trial. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5.9, THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING CONFLICT OF LAWS PRINCIPLES THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY OTHER JURISDICTION. Sections 11.10 and 11.11 of the Loan Agreement are hereby incorporated by reference as if fully set forth in this Amendment mutatis mutandis. To the extent that this Amendment relates to the confirmation of the Swiss Security Interests, the relevant parts of this Amendment shall in all respects, including, without limitation, all the rights in rem aspects be governed by and construed in accordance with the substantive laws of Switzerland and be submitted to the exclusive jurisdiction of the courts of the city of Zurich, Switzerland in accordance with the terms of the relevant Loan Document governed by Swiss law.
5.10 Termination. If the Second Amendment Effective Date shall not have occurred by the Outside Date, this Amendment shall automatically terminate and be of no further force or effect; provided that (i) Sections 5.3, 5.6, 5.7 and 5.9 of this Amendment shall survive such termination and (ii) no party hereto shall have any liability to any other party hereunder solely by reason of such termination.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers on the date and year first above written.
| BORROWER: | ||
| ADC THERAPEUTICS SA | ||
| By: | /s/ Ameet Mallik | |
| Name: | Ameet Mallik | |
| Title: | CEO | |
| GUARANTORS: | ||
| ADC THERAPEUTICS (UK) LIMITED | ||
| By: | /s/ Peter Graham | |
| Name: | Peter Graham | |
| Title: | Director | |
| ADC THERAPEUTICS AMERICA, INC. | ||
| By: | /s/ Ameet Mallik | |
| Name: | Ameet Mallik | |
| Title: | CEO | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| AGENT: | ||
| BLUE OWL OPPORTUNISTIC LENDING MASTER FUND I, L.P. | ||
| By: | Blue Owl Opportunistic Lending GP, LLC its General Partner | |
| By: | /s/ Meenal Mehta | |
| Name: | Meenal Mehta | |
| Title: | Authorized Signatory | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| BLUE OWL OPPORTUNISTIC LENDING DL (C), L.P. | ||
| By: | Blue Owl Opportunistic Lending DL (C) GP, LLC its General Partner | |
| By: | Blue Owl Credit Private Fund Advisors LLC its Sole Member | |
| By: | /s/ Meenal Mehta | |
| Name: | Meenal Mehta | |
| Title: | Authorized Signatory | |
| BLUE OWL OPPORTUNISTIC LENDING MASTER FUND I, L.P. | ||
| By: | Blue Owl Opportunistic Lending GP, LLC its General Partner | |
| By: | /s/ Meenal Mehta | |
| Name: | Meenal Mehta | |
| Title: | Authorized Signatory | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE LSL FUND HOLDINGS EURRC S.À R.L. | ||
| 26A, boulevard Royal L-2449 Luxembourg | ||
| R.C.S Number: B269245 | ||
| By: | /s/ Martin Eckel | |
| Name: | Martin Eckel | |
| Title: | Manager | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE LSL HOLDINGS EURRC S.À R.L., a private limited liability company (société à responsabilité limitée) governed by the laws of the Grand Duchy of Luxembourg, having its registered office at 26A, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg) under number B263341. | ||
| By: | /s/ Martin Eckel | |
| Name: | Martin Eckel | |
| Title: | Manager | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE SPECIALTY LENDING CORPORATION | ||
| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
| By: | /s/ Mary Gallegly | |
| Name: | Mary Gallegly | |
| Title: | Managing Director | |
| By: | /s/ Jessica Dombroff | |
| Name: | Jessica Dombroff | |
| Title: | Managing Director | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE AZ STRATEGIC LENDING FUND, L.P. | ||
| By: | Oaktree AZ Strategic Lending Fund GP, L.P. | |
| Its: | General Partner | |
| By: | Oaktree Fund GP IIA, LLC | |
| Its: | General Partner | |
| By: | Oaktree Fund GP II, L.P. | |
| Its: | Managing Member | |
| By: | /s/ Mary Gallegly | |
| Name: | Mary Gallegly | |
| Title: | Authorized Signatory | |
| By: | /s/ Jessica Dombroff | |
| Name: | Jessica Dombroff | |
| Title: | Authorized Signatory | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE STRATEGIC CREDIT FUND | ||
| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
| By: | /s/ Mary Gallegly | |
| Name: | Mary Gallegly | |
| Title: | Managing Director | |
| By: | /s/ Jessica Dombroff | |
| Name: | Jessica Dombroff | |
| Title: | Managing Director | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
| LENDERS: | ||
| OAKTREE DIVERSIFIED INCOME FUND, INC. | ||
| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Advisor | |
| By: | /s/ Mary Gallegly | |
| Name: | Mary Gallegly | |
| Title: | Managing Director | |
| By: | /s/ Jessica Dombroff | |
| Name: | Jessica Dombroff | |
| Title: | Managing Director | |
[Signature Page to Second Amendment to Loan Agreement and First Amendment to Fee Letter]
SCHEDULE 7.23
MINIMUM
U.S. ZYNLONTA SALES
| Fiscal Quarter Ending | Minimum U.S. ZYNLONTA Sales |
| June 30, 2024 | $45,450,000 |
| September 30, 2024 | $61,206,000 |
| December 31, 2024 | $61,894,568 |
| March 31, 2025 | $62,590,881 |
| June 30, 2025 | $63,295,029 |
| September 30, 2025 | $64,007,098 |
| December 31, 2025 | $65,210,993 |
| March 31, 2026 | $66,414,889 |
| June 30, 2026 | $67,719,108 |
| September 30, 2026 | $68,923,004 |
| December 31, 2026 and each fiscal quarter ending thereafter | $65,000,000 |
SCHEDULE FL
Reserved.
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Blue Owl Opportunistic Lending Master Fund I, L.P.
399 Park Avenue, 38th Floor
NY, NY 10022 US
Attn: Matt Southworth/Admin Agent
Email: Matt.Southworth@alterdomus.com; adminagent@blueowl.com
Reference is made to that certain Loan Agreement and Guaranty dated as of August 15, 2022 and the Loan Documents (as defined therein) entered into in connection with such Loan Agreement and Guaranty all as may be amended from time to time (hereinafter referred to collectively as the “Loan Agreement”) by and among the Agent, the several banks and other financial institutions or entities from time to time party thereto as lenders (collectively, the “Lenders”) and ADC Therapeutics SA (the “Company”) as Borrower and each Guarantor party thereto from time to time. All capitalized terms not defined herein shall have the same meaning as defined in the Loan Agreement.
The undersigned is Authorized Officer of the Company, knowledgeable of all Company financial matters, and is authorized to provide certification of information regarding the Company; hereby certifies, in such capacity, that in accordance with the terms and conditions of the Loan Agreement, except as set forth below, each Loan Party is in compliance for the period ending _____________ of all covenants, conditions and terms. The undersigned further certifies the attached financial statements are prepared in accordance with GAAP (except for the absence of footnotes with respect to unaudited financial statement and subject to normal year-end adjustments) and are consistent from one period to the next except as explained below.
Exceptions:
| REPORTING REQUIREMENT | REQUIRED | CHECK IF ATTACHED |
| Report on Cash of the Borrower and its Subsidiaries | Monthly within 14 days | ☐ |
| Interim Financial Statements | Quarterly within 60 days | ☐ |
| Audited Financial Statements | FYE within 90 days | ☐ |
| Annual Operating Budget | Earlier of (i) FYE within 60 days OR (ii) 10 Business Days after approval by the Borrower’s board of directors | ☐ |
ACCOUNTS
The undersigned hereby also confirms the below disclosed accounts represent all depository accounts and securities accounts presently open in the name of each Loan Party or Subsidiary, as applicable.
Have any Deposit Accounts, Securities Accounts or Commodity Accounts been opened since the last Compliance Certificate? YES/NO1
Are the Loan Parties in compliance with Section 7.12 based on the below disclosed Deposit Accounts, Securities Accounts or Commodity Accounts? YES/NO
| Depository AC # |
Financial Institution |
Account Type (Depository / Securities) |
Last Month Ending Account Balance |
Purpose of Account | ||
| LOAN PARTY Name/Address: |
||||||
| 1 | ||||||
| 2 | ||||||
| 3 | ||||||
| 4 | ||||||
| 5 | ||||||
| 6 | ||||||
| 7 | ||||||
| LOAN PARTY/ SUBSIDIARY Name/Address |
||||||
| 1 | ||||||
| 2 | ||||||
| 3 | ||||||
| 4 | ||||||
| 5 | ||||||
| 6 | ||||||
| 7 |
MINIMUM U.S. ZYNLONTA SALES (7.23)2
[The U.S. ZYNLONTA Sales for the applicable fiscal quarter on a trailing four fiscal quarter basis is: $ , and evidence thereof is attached to this Compliance Certificate.]
1 If YES, indicate which accounts on the chart below have been opened since the last Compliance Certificate.
2 Note: to be included with any quarterly compliance certificate, starting with the fiscal quarter ending June 30, 2024.
[The 30-Day Average Market Capitalization of the Borrower as of the last day of the applicable fiscal quarter is: $ , and evidence thereof is attached to this Compliance Certificate.]3
Are the Loan Parties in compliance with Section 7.23 of the Loan Agreement for the fiscal quarter covered by this Compliance Certificate? YES/NO
INSURANCE4
Have the Loan Parties amended or entered into any new insurance policies or amended any existing insurance policies since the last quarterly Compliance Certificate? YES/NO
If YES, have the Loan Parties provided the Agent updated insurance certificates, policies and endorsements with respect to such new or amended policies? YES/NO
COMMERCIAL TORT CLAIMS5
Has any Loan Party created, acquired or otherwise obtained any Commercial Tort Claims having a value greater than Two Hundred Fifty Thousand Dollars ($250,000 individually) since the last quarterly Compliance Certificate? YES/NO
If YES, a reasonably detailed description of such Commercial Tort Claim(s) is attached to this Compliance Certificate.
INTELLECTUAL PROPERTY6
Has any Loan Party (i) created, acquired or otherwise obtained ownership of any Patent, registered Trademark, registered Copyright, registered mask work, or any pending application for any of the foregoing, or any in-bound exclusive registered Copyright License, or (ii) applied for any Patent (other than provisional patent applications) or the registration of any Trademark, in each case since the last quarterly Compliance Certificate? YES/NO
If YES, a description of such Intellectual Property is attached to this Compliance Certificate.
3 Note: Testing is not required for any fiscal quarter in which the 30-Day Average Market Capitalization of the Borrower is at least $650,000,000 as of the last day of such fiscal quarter.
4 Note: to be included with any quarterly compliance certificate.
5 Note: to be included with any quarterly compliance certificate.
6 Note: to be included with any quarterly compliance certificate and may include Material Agreements.
Disclosure Letter7
Has any information in Schedules 1 or 1E of the Disclosure Letter changed since the last quarterly Compliance Certificate? YES/NO
If YES, new Schedules 1 and/or 1E (as applicable) of the Disclosure Letter are attached to this Compliance Certificate.
Security Agreement Schedules8
Has any information in any of the Schedules to the Security Agreement since the last quarterly Compliance Certificate? YES/NO
If YES, new applicable Schedules to the Security Agreement are attached to this Compliance Certificate.
[Signature Page Follows]
7 Note: To be included with any quarterly Compliance Certificate.
8 Note: To be included with any quarterly Compliance Certificate.
| Very Truly Yours, | ||
| ADC THERAPEUTICS SA | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.4
AMENDMENT TO WARRANT TO PURCHASE COMMON SHARES OF ADC THERAPEUTICS SA
This Amendment to the Warrant to Purchase Common Shares of ADC Therapeutics SA (the “Amendment”), is dated October 7, 2026, and is made between ADC Therapeutics SA, a Swiss stock corporation (société anonyme) organized under the laws of Switzerland (the “Company”), and [W-L-1: BLUE OWL OPPORTUNISTIC LENDING MASTER FUND II, L.P.] [W-L-2: BLUE OWL OPPORTUNISTIC LENDING DL (C), L.P.] [W-L-3: OAKTREE LSL FUND HOLDINGS EURRC S.à r.l] [W-L-4: OAKTREE STRATEGIC CREDIT FUND] [W-L-5: OAKTREE AZ STRATEGIC LENDING FUND, L.P.] [W-L-6: OAKTREE SPECIALTY LENDING CORPORATION] [W-L-7: OAKTREE LSL HOLDINGS EURRC S.À R.L.] [W-L-8: OAKTREE DIVERSIFIED INCOME FUND, INC.] or its registered assign (the “Warrantholder”).
WHEREAS, on August 15, 2022, the Company issued a warrant (No. W-L-[1][2][3][4][5][6][7][8]) (the “Warrant”) to the Warrantholder providing for the right of the Warrantholder to subscribe for and purchase, at the Exercise Price per share, the Warrant Share Number of duly authorized, validly issued, fully paid and non-assessable Common Shares; and
WHEREAS, as of the date of this Amendment, the Warrant Share Number is [W-L-1: 256,116] [W-L-2: 7,532] [W-L-3: 123,525] [W-L-4: 45,727] [W-L-5: 39,083] [W-L-6: 28,948] [W-L-7: 21,376] [W-L-8: 4,988] Common Shares;
WHEREAS, as of the date of this Amendment, the total number of Common Shares issuable upon exercise of the Warrant, together with all other warrants issued to the lenders under the Loan Agreement and Guaranty, dated August 15, 2022, between the Company, certain subsidiaries of the Company, the lenders party thereto and Blue Owl Opportunistic Lending Master Fund I, L.P., as administrative agent and collateral agent, is 527,295 Common Shares;
WHEREAS, subject to the occurrence of the Amendment No. 1 Effective Date (as defined below), the parties desire to amend the Warrant to amend the Exercise Price, without changing the number of Common Shares that the Warrant represents the right to subscribe for and purchase, such that the Warrant Share Number immediately following the Amendment No. 1 Effective Date is equal to the Warrant Share Number immediately before the Amendment No. 1 Effective Date.
NOW, THEREFORE, the parties agree as follows:
| 1. | Amendment to the Warrant. Subject to the occurrence of the Amendment No. 1 Effective Date, in Section 1 of the Warrant, the definitions of Exercise Price and Warrant Share Number are respectively amended and restated in their entirety as follows: |
“Exercise Price” means the lesser of (i) $1.00 per Warrant Share and (ii) the price per Common Share paid by institutional investors in the next private placement involving Common Shares following October 7, 2026 (but in any case, no later than April 7, 2027), in each case, subject to adjustment from time to time in accordance with the provisions of this Warrant.
“Warrant Share Number” means [W-L-1: 256,116] [W-L-2: 7,532] [W-L-3: 123,525] [W-L-4: 45,727] [W-L-5: 39,083] [W-L-6: 28,948] [W-L-7: 21,376] [W-L-8: 4,988] Common Shares, subject to adjustment as set forth herein, including reduction for each such Common Share as to which this Warrant has been exercised (whether pursuant to a Cash Exercise or a Cashless Exercise) hereunder.
| 2. | Conditions to Effectiveness. The effectiveness of this Amendment is subject to satisfaction of each of the following conditions precedent (the date on which all such conditions precedent have been so satisfied shall be the “Amendment No. 1 Effective Date”: |
| a. | the Warrantholder shall have received a counterpart of this Amendment duly executed by the Company; and |
| b. | the Second Amendment Effective Date under and as defined in that certain Second Amendment to Loan Agreement and Guaranty and First Amendment to Fee Letter, dated October 7, 2026 (the “Credit Agreement Amendment”), by and among the Company, each of the Company’s subsidiaries party thereto, the lenders party |
thereto and Blue Owl Opportunistic Lending Master Fund I, L.P., as agent, shall have occurred and the Credit Agreement Amendment shall be in full force and effect.
| 3. | Tax Treatment. The Company agrees (i) to consult with the Warrantholder before performing any reporting of the US tax consequences of the Amendment (e.g., on Form 8937 or otherwise), and shall cooperate with the Warrantholder on such reporting, and (ii) that the Amendment shall not result in (x) any adverse income tax consequences in Switzerland for the Warrantholder and/or (y) Swiss withholding tax consequences for the Company (or otherwise) which are adverse to the Warrantholder. |
| 4. | No Further Amendments. Except as expressly modified by this Amendment on the Amendment No. 1 Effective Date, the Warrant will remain unmodified and in full force and effect in accordance with its terms. |
| 5. | Counterparts. This Amendment may be executed in counterparts (including electronically transmitted counterparts), each of which will be considered an original instrument, but which, taken together, will constitute one and the same instrument. |
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or caused this Amendment to be executed and delivered, as of the date first written above.
| ADC Therapeutics SA | ||
| By: | ||
| Name: | ||
| Title: | ||
| [____] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.5
AMENDMENT NO. 2 TO PURCHASE AND SALE AGREEMENT
This Amendment No. 2 to Purchase and Sale Agreement (this “Amendment”), dated as of October 7, 2026, is made and entered into by and between ADC THERAPEUTICS SA, a Swiss société anonyme (the “Seller”), and the entities managed by Healthcare Royalty Management, LLC listed on the signature pages hereto and on Exhibit F to the Agreement (collectively, the “Buyer”); provided that, for purposes of this Amendment and the Amendment No. 1 Warrants, “Buyer” shall include each Person executing this Amendment in its capacity as a Buyer or Warrantholder.
RECITALS:
WHEREAS, the Seller and the Buyer are parties to that certain Purchase and Sale Agreement, dated as of August 25, 2021 (the “Agreement”);
WHEREAS, the Buyer has previously paid the Closing Price and the EMA Milestone Payment, comprising an aggregate Purchase Price of $300,000,000 in total;
WHEREAS, the Seller and the Buyer entered into that certain Amendment No. 1 to Purchase and Sale Agreement, dated as of February 18, 2026 (“Amendment No. 1”), pursuant to which the Seller and the Buyer amended the Agreement and the Seller issued to the Buyer (or its designees) warrants to purchase common shares of the Seller (the “Amendment No. 1 Warrants”);
WHEREAS, the Seller and the Buyer desire to further amend the Agreement to remove the Change of Control payment added by Amendment No. 1, make conforming changes to the Royalty Cap and Buyout Option provisions, amend the exercise price under each of the Amendment No. 1 Warrants, and add certain effectiveness conditions and covenants, in consideration of the amendments to the Amendment No. 1 Warrants and the other agreements of the Seller set forth herein, in each case on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined in this Amendment shall have the meanings ascribed to such terms in the Agreement, as amended. References in Section 3 to the “Company” are to the Seller in its capacity as issuer of the Amendment No. 1 Warrants.
2. Amendments to the Agreement.
(a) Royalty Cap Definition. Section 1.1 of the Agreement is hereby amended to delete the last sentence of the definition of “Royalty Cap” in its entirety and replace it with the following sentence, which shall be the last sentence of such definition:
“For clarity, amounts actually paid by or on behalf of the Seller to or on behalf of any Buyer Indemnified Party in respect of Losses consisting of missing, delayed or diminished Royalty Payments (whether under Article 6 or otherwise) shall be credited towards the Royalty Cap, provided that no amount paid (i) in respect of attorneys’ fees, costs of enforcement or other out-of-pocket costs or expenses of any Buyer Indemnified Party or (ii) in respect of any Third Party Claim under Section 6.1(a)(iii) shall be so credited.”
(b) Change of Control Payment. Section 2.3(a) of the Agreement, as amended by Amendment No. 1, is hereby deleted in its entirety and replaced with “[Reserved].” For the avoidance of doubt, from and after the Amendment No. 2 Effective Date, the closing of a Change of Control shall not by itself require any payment, prepayment, buyout, mandatory termination of the Revenue Participation Right, or other amount to be paid to the Buyer, unless the Seller separately elects to exercise the Buyout Option pursuant to Section 2.3(b).
In connection with any Change of Control, the Seller shall cause the surviving or acquiring Person (if other than the Seller) to assume in writing all obligations of the Seller under the Agreement, Amendment No. 1, this Amendment and the Amendment No. 1 Warrants, without limiting Section 9.4 of the Agreement.
The defined term “CoC Payment” and each reference thereto in the definition of “Royalty Cap” and in Section 2.3(b) of the Agreement are hereby deleted.
(c) Buyout Option. Section 2.3(b) of the Agreement is hereby amended and restated in its entirety as follows:
“(b) The Seller (or its permitted successor in interest) may elect to purchase the remainder of the Revenue Participation Right in full (the “Buyout Option”) by paying to the Buyer an amount (the “Buyout Payment”) equal to either:
(i) 1.75 times the Purchase Price, less the aggregate amount of all Royalty Payments or other amounts expressly credited towards the Royalty Cap pursuant to this Agreement (including, without duplication of amounts already credited towards the Royalty Cap, amounts constituting late fees pursuant to Section 5.2(a), amounts paid to Buyer Indemnified Parties under Article 6 (other than amounts described in the proviso to the last sentence of the definition of “Royalty Cap”) and payments received by Buyer in respect of Indemnified Taxes, but not crediting any amounts that Buyer does not receive because they are paid to any taxing authority as withholding in respect of Indemnified Taxes), if the Buyout Payment is made on or prior to December 31, 2029; or
(ii) 2.50 times the Purchase Price, less the aggregate amount of all Royalty Payments or other amounts expressly credited towards the Royalty Cap pursuant to this Agreement (including, without duplication of amounts already credited towards the Royalty Cap, amounts constituting late fees pursuant to Section 5.2(a), amounts paid to Buyer Indemnified Parties under Article 6 (other than amounts described in the proviso to
the last sentence of the definition of “Royalty Cap”) and payments received by Buyer in respect of Indemnified Taxes, but not crediting any amounts that Buyer does not receive because they are paid to any taxing authority as withholding in respect of Indemnified Taxes), if the Buyout Payment is made after December 31, 2029.
Upon receipt by the Buyer of the Buyout Payment, if any, by wire transfer of immediately available funds, no further payments of the Revenue Participation Right shall be due to the Buyer hereunder and the Royalty Termination Date shall be deemed to have immediately and automatically occurred. For the avoidance of doubt, if the Seller does not make the Buyout Payment, the payments of the Revenue Participation Right shall continue to be paid to the Buyer until the Royalty Termination Date.”
(d) Automatic Termination. Section 8.2 of the Agreement is hereby amended by replacing “including following prepayment as provided in Section 2.3(a)” with “including following payment of the Buyout Payment as provided in Section 2.3(b)”.
(e) Deerfield and Subordination Agreement References. Section 1.1 of the Agreement is hereby amended by (i) deleting the definitions of “Buyout Rate,” “Deerfield,” “Deerfield Facility Agreement,” “Deerfield Loan” and “Subordination Agreement”; (ii) adding the following definitions in alphabetical order: “Amendment No. 2” means Amendment No. 2 to this Agreement, dated as of October 7, 2026, between the Seller and the Buyer; and “Existing Credit Facility Agreement” means the Senior Credit Agreement (as defined in Amendment No. 2); and (iii) in the definition of “Permitted Liens,” deleting “or the Subordination Agreement” from clause (d); and (iv) in the definition of “Restricted Indebtedness,” amending and restating clauses (a) and (b) and the proviso thereto in their entirety to read: “(a) Third Party Indebtedness of the Seller and its Subsidiaries (including Indebtedness under the Existing Credit Facility Agreement and any refinancing, replacement or substitution thereof), so long as the aggregate outstanding principal amount of all such Indebtedness (including any interest paid in kind and added to principal) does not at any time exceed $50,000,000.” Sections 7.2(a)(ix) and 9.14 of the Agreement are hereby deleted and replaced with “[Intentionally Omitted]”; Section 9.3 of the Agreement is hereby amended by deleting “and the Subordination Agreement”; Section 9.4 of the Agreement is hereby amended by deleting clause (a)(i) of the second sentence thereof; and Exhibit A to the Agreement is hereby deleted.
(f) Exhibit F. Exhibit F to the Agreement is hereby amended and restated in the form of Exhibit A to this Amendment. The Seller acknowledges that (i) each of HCR Stafford Fund, L.P. and HCR Potomac Fund, L.P. merged with and into HCRX Investments HoldCo, L.P., a Delaware limited partnership, effective February 15, 2023, and HCRX Investments HoldCo, L.P., as the surviving entity, succeeded by operation of law to all of the rights and obligations of HCR Stafford Fund, L.P. and HCR Potomac Fund, L.P. under the Agreement, (ii) effective April 1, 2023, all of the limited partnership interests in HCRP Overflow Fund, L.P. were acquired by HCRX Investments HoldCo, L.P. and its Affiliates, and HCRP Overflow Fund, L.P. remains a
Buyer under the Agreement, and (iii) HCRX Holdings, L.P., an Affiliate of the foregoing, executed Amendment No. 1 as a Buyer and Warrantholder, and each of HCRX Investments HoldCo, L.P. and HCRP Overflow Fund, L.P., by its execution of this Amendment, ratifies and confirms Amendment No. 1 and the Amendment No. 1 Warrants; and the Seller confirms that Amendment No. 1 was duly executed and delivered by all Parties and is binding on the Seller in accordance with its terms.
3. Amendment of Warrants. Effective as of the Amendment No. 2 Effective Date, each Amendment No. 1 Warrant identified on Schedule A is hereby separately amended as follows: (a) the definition of “Exercise Price” is amended and restated in its entirety to read as follows: “‘Exercise Price’ means $0.10 per Warrant Share, subject to adjustment from time to time in accordance with the provisions of this Warrant, provided that in no event shall the Exercise Price be less than the then-applicable par or nominal value of a Common Share.”; (b) the following is added as a new Section 3(i) of each Amendment No. 1 Warrant: “Notwithstanding anything herein to the contrary, the Company shall not effect any exercise of this Warrant, and the Warrantholder shall not have the right to exercise any portion of this Warrant, to the extent that after giving effect to such exercise the Warrantholder, together with its Affiliates and any other Persons whose beneficial ownership would be aggregated with the Warrantholder’s for purposes of Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”), would beneficially own in excess of 4.99% of the Common Shares outstanding immediately after giving effect to such exercise, with beneficial ownership determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder but excluding Common Shares issuable upon the exercise or conversion of the unexercised or unconverted portion of any securities of the Company held and/or beneficially owned by such Warrantholder, together with its Affiliates and any other Persons whose beneficial ownership would be aggregated with the Warrantholder’s for purposes of Section 13(d) of the Exchange Act, that are subject to a limitation on conversion or exercise analogous to the limitation contained herein; provided that the Warrantholder may, upon not less than 61 days’ prior written notice to the Company, increase such percentage to any percentage not exceeding 9.99%. The Warrantholder shall disclose to the Company the number of Common Shares that it, together with its Affiliates and any other Persons whose beneficial ownership would be aggregated with the Warrantholder’s for purposes of Section 13(d) of the Exchange Act, holds and/or beneficially owns and has the right to acquire through the exercise of derivative securities and any limitations on exercise or conversion analogous to the limitation contained herein contemporaneously or immediately prior to submitting a Notice of Exercise.”; and (c) effective as of the Amendment No. 2 Effective Date, the restrictions on transfer of each Amendment No. 1 Warrant and of the Common Shares issuable upon exercise thereof prior to January 1, 2028 (including the first two sentences and the last sentence of the section of each Amendment No. 1 Warrant titled “Transfers” and the related legend) are deleted, and each Amendment No. 1 Warrant and such Common Shares shall be transferable, in whole or in part, subject only to compliance with the Seller’s articles of association and applicable federal and state securities law. Promptly after the Seller becomes a
Delaware corporation (the “redomiciliation”), if requested by the Warrantholders, the Company and the Warrantholders shall amend the Amendment No. 1 Warrants to reflect such redomiciliation and remove Section 3(h) of each Amendment No. 1 Warrant. The Seller represents that, assuming that all representations and warranties of each Warrantholder are true and correct and all covenants and agreements of each Warrantholder have been complied with in all respects as of the Amendment No. 2 Effective Date, all corporate, shareholder, stock exchange, securities-law and contractual approvals required to effect the amendments contemplated by clauses (a), (b) and (c) above have been obtained or will be obtained as a condition to the Amendment No. 2 Effective Date. Except as expressly amended by this Section 3, no other terms of the Amendment No. 1 Warrants are amended by this Amendment. Each Buyer executing this Amendment as a Warrantholder agrees that its execution constitutes the written instrument required to amend its respective Amendment No. 1 Warrant. The Seller and each applicable Warrantholder shall execute and deliver any further amendment, acknowledgment or instrument reasonably requested by the Buyer to evidence or implement the foregoing.
4. Conditions Precedent to Effectiveness. Except for this Section 4, Section 6(a), Section 6(e) and Sections 7(c), 8 and 9, which shall be effective as of the date hereof, this Amendment shall not become effective unless and until each of the following conditions precedent has been satisfied or waived in writing by the Buyer, and the date on which all such conditions precedent have been so satisfied or waived shall be the “Amendment No. 2 Effective Date”: (a) the Seller, each Buyer and each applicable Warrantholder shall have executed and delivered this Amendment in each applicable capacity; (b) all documents, instruments and agreements contemplated by the last sentence of Section 3 shall have been executed and delivered; (c) the Seller shall have consummated the Qualifying Equity Raise (as defined below), and the Amendment No. 2 Effective Date shall occur concurrently with the closing thereof in accordance with the last paragraph of this Section 4; (d) no stop order has been issued by the Securities and Exchange Commission suspending the effectiveness of the Seller’s resale shelf registration statement relating to all shares issuable upon exercise of the Amendment No. 1 Warrants; (e) no consents are required to the effectiveness of this Amendment under the Seller’s Loan and Guaranty Agreement, dated as of August 15, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Senior Credit Agreement”), by and among the Seller, certain subsidiaries of the Seller as guarantors, Blue Owl Opportunistic Lending Master Fund I, L.P. as administrative agent and the other secured parties party thereto, other than those consents that have been obtained and remain in full force and effect; (f) the Seller shall have delivered an officer’s certificate, in form and substance reasonably satisfactory to the Buyer, certifying satisfaction of the conditions in clauses (c), (d), (e) and (h), that the representations and warranties in Section 5 are true and correct as of the Amendment No. 2 Effective Date, that all required corporate and shareholder approvals (if any) have been obtained, and that no default or event of default exists under the Senior Credit Agreement or any other material agreement; (g) the Seller shall have reimbursed the Buyer for all reasonable and documented out-of-pocket costs
and expenses, including attorneys’ fees and expenses, incurred by the Buyer in connection with the negotiation, preparation, execution and delivery of this Amendment and the transactions contemplated hereby and invoiced at least three (3) Business Days prior to the date hereof; and (h) the Senior Credit Agreement shall have been amended, on terms reasonably satisfactory to the Buyer, to (i) reduce the aggregate outstanding principal amount of the Term Loans (as defined therein) to not more than $50,000,000 (whether by prepayment, cancellation, exchange or otherwise), (ii) eliminate the minimum liquidity covenant in Section 7.14 thereof and (iii) defer all scheduled amortization of the Term Loans to the Term Loan Maturity Date (as defined therein), such amendment shall be in full force and effect, and the Buyer shall have received a true and complete copy thereof.
For purposes of this Amendment, “Qualifying Equity Raise” means one or more issuances by the Seller, for cash, of Common Shares and/or pre-funded warrants to purchase Common Shares (with an exercise price not less than the nominal value thereof and without price-based anti-dilution protection), to Persons that are not Affiliates of the Seller (existing shareholders participating on the same terms as unaffiliated investors excepted), resulting in aggregate gross cash proceeds to the Seller of not less than $60,000,000, the closing of which occurs on or before October 31, 2026 or such later date as the Buyer may agree in writing. The Seller shall use its reasonable best efforts to consummate the Qualifying Equity Raise. The Parties shall deliver their signatures to this Amendment into escrow with counsel to the Buyer, to be released automatically upon the funding of the Qualifying Equity Raise and the satisfaction or waiver of the other conditions in this Section 4, and the Amendment No. 2 Effective Date shall be the date of such release. If the Amendment No. 2 Effective Date has not occurred on or before December 31, 2026, this Amendment shall terminate and be of no further force or effect (other than this sentence and Sections 7(c), 8 and 9, which shall survive), and the Agreement (as amended by Amendment No. 1) and the Amendment No. 1 Warrants shall continue in full force and effect without giving effect to this Amendment.
5. Representations and Warranties. The Seller represents and warrants to the Buyer on the date hereof and as of the Amendment No. 2 Effective Date that: (a) it is a société anonyme duly incorporated and validly existing under the laws of Switzerland; (b) it has all requisite corporate power and authority to execute, deliver and perform this Amendment; (c) all board, shareholder and other corporate action required under applicable Swiss law and the Seller’s organizational documents for the foregoing has been duly taken and remains effective; (d) all governmental, contractual and other consents required for the execution, delivery, effectiveness and performance of this Amendment have been obtained and remain effective or, solely with respect to actions not yet required to be completed, will be obtained by the applicable outside date; (e) none of the execution, delivery or effectiveness of this Amendment violates or triggers any default, event of default, mandatory prepayment, consent requirement, lien, impairment or other adverse consequence under the Senior Credit Agreement or any other material agreement binding upon the Seller or its Affiliates; (f) the Seller has reserved out of its
capital range under Article 4a or its conditional share capital under Article 4c of its Articles of Association Common Shares sufficient to permit the exercise in full of the Amendment No. 1 Warrants as amended hereby, and the Common Shares issued upon such exercise at the Exercise Price will be validly issued, fully paid and non-assessable and issued in compliance with the Articles of Association and applicable law; (g) neither the execution nor delivery of this Amendment will result in any adjustment to the exercise, conversion or purchase price of, or the number of shares issuable under, any other outstanding warrant, option, convertible security or other right to acquire Common Shares; (h) no default or event of default exists under the Senior Credit Agreement, and the Seller is not over-indebted at liquidation values within the meaning of Article 725b of the Swiss Code of Obligations; and (i) all Royalty Payments and Royalty Reports due under the Agreement through the date hereof have been paid and delivered in full in accordance with the Agreement, and the Seller has no claim of set-off, recoupment, counterclaim or defense against the Buyer in respect of the Agreement.
6. Continuing Covenants. (a) The Seller will, within four Business Days after the date of this Amendment, file a Current Report on Form 8-K describing the material terms of this Amendment, which the Seller acknowledges the Buyer may rely upon as public disclosure of all material non-public information furnished by or on behalf of the Seller to the Buyer in connection herewith. (b) Subject to approval by the Seller’s shareholders, the Seller shall use its best efforts to effect the redomiciliation, and shall use best efforts to take, and cause its controlled Affiliates to take, all actions necessary or appropriate to effect the redomiciliation; provided that the foregoing shall not require the Seller to take any action that would cause the Seller to violate applicable law or would cause a director or officer of the Seller to violate a duty owed to the Seller or its shareholders. (c) The Seller shall not, and shall not permit any Subsidiary to, create, incur, assume or suffer to exist any Third Party Indebtedness (including under the Senior Credit Agreement and any refinancing, replacement or substitution thereof) if, after giving effect thereto, the aggregate outstanding principal amount of all Third Party Indebtedness of the Seller and its Subsidiaries (including any interest paid in kind and added to principal) would exceed $50,000,000 (after giving effect to any paydown of the Senior Credit Agreement on or before the Amendment No. 2 Effective Date). (d) The Seller hereby ratifies and reaffirms the Back-Up Security Interest, the financing statements filed in respect thereof and the Bank Account Pledge Agreement between the Seller and the Buyer in respect of the Lockbox Account, each of which shall continue in full force and effect and secure the obligations of the Seller under the Agreement as amended hereby. (e) Except as required by applicable law or stock exchange rule, neither Party shall issue any press release naming the other Party without its prior written consent. (f) If the Seller breaches Section 6(c), such breach shall constitute an breach for purposes of Section 6.5 of the Agreement, subject to the same cure periods set forth therein, and if uncured with such cure period, the Buyer shall be entitled, at its election, to the Non-Performance Payment in accordance with Section 6.5 of the Agreement as if Section 6(c) of this Amendment were expressly referenced therein.
7. Reference to and Effect on the Agreement.
(a) On and after the Amendment No. 2 Effective Date, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” or words of like import referring to the Agreement shall mean and be a reference to the Agreement as amended by this Amendment.
(b) The Agreement, as specifically amended by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.
(c) Except as expressly set forth herein, nothing in this Amendment shall constitute or be deemed to constitute a waiver, release, amendment or modification of any breach, default, event of default, claim, reporting failure, payment failure, audit right, indemnity claim, right to payment, right to information, right to inspect or audit, right to enforce, or other right or remedy of the Buyer under the Agreement, Amendment No. 1, the Amendment No. 1 Warrants or any related transaction document, all of which are hereby expressly reserved.
(d) The Seller shall, at its sole cost and expense, execute and deliver such further documents, instruments, agreements, filings, certificates, opinions and other deliverables, and take such further actions, as the Buyer may reasonably request to carry out the purposes of this Amendment.
8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. Sections 9.9 and 9.10 of the Agreement shall apply to this Amendment, mutatis mutandis.
9. Counterparts. This Amendment may be executed in any number of counterparts and by the Parties 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. Copies of executed counterparts transmitted by telecopy, facsimile, electronic mail, DocuSign or other similar means of electronic transmission (including “PDF”) shall be considered original executed counterparts.
* * *
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed and delivered by their respective representatives thereunto duly authorized as of the date first above written.
SELLER:
| ADC THERAPEUTICS SA | ||
| By: | /s/ Ameet Mallik | |
| Name: | Ameet Mallik | |
| Title: | CEO | |
BUYER AND WARRANTHOLDER:
| HEALTHCARE ROYALTY PARTNERS IV, L.P. | ||
| By: | HealthCare Royalty GP IV, LLC, its General Partner | |
| By: | HealthCare Royalty Management, LLC, its Investment Manager | |
| By: | /s/ Clarke B. Futch | |
| Name: | Clarke B. Futch | |
| Title: | Authorized Signatory | |
BUYER AND WARRANTHOLDER:
| HCRX HOLDINGS, L.P. | ||
| By: | HCRX Master GP, LLC, its General Partner | |
| By: | /s/ Clarke B. Futch | |
| Name: | Clarke B. Futch | |
| Title: | Chairman & Chief Executive Officer | |
BUYER AND WARRANTHOLDER:
| HCR CANARY FUND, L.P. | ||
| By: | HCR Canary Fund GP, LLC, its General Partner | |
| By: | HealthCare Royalty Management, LLC, its Investment Manager | |
| By: | /s/ Clarke B. Futch | |
| Name: | Clarke B. Futch | |
| Title: | Authorized Signatory | |
BUYER AND WARRANTHOLDER:
| HCR MOLAG FUND, L.P. | ||
| By: | HCR Molag Fund GP, LLC, its General Partner | |
| By: | HealthCare Royalty Management, LLC, its Investment Manager | |
| By: | /s/ Clarke B. Futch | |
| Name: | Clarke B. Futch | |
| Title: | Authorized Signatory | |
Schedule A
Repriced Amendment No. 1 Warrants
| Warrantholder | Warrant No. | Original Warrant Shares | Original Exercise Price | Amended Exercise Price |
| HEALTHCARE ROYALTY PARTNERS IV, L.P. | W-2026-1 | 3,722,084 | $3.8130 | $0.10, subject to Section 3(a) |
| HCRX HOLDINGS, L.P. | W-2026-4 | 5,522,605 | $3.8130 | $0.10, subject to Section 3(a) |
| HCR MOLAG FUND, L.P. | W-2026-2 | 45,392 | $3.8130 | $0.10, subject to Section 3(a) |
| HCR CANARY FUND, L.P. | W-2026-3 | 544,695 | $3.8130 | $0.10, subject to Section 3(a) |
Exhibit A
Amended and Restated Exhibit F to the Agreement Buyer Entities
Buyer Entities
HEALTHCARE ROYALTY PARTNERS IV, L.P.
HCRX HOLDINGS, L.P.
HCRX INVESTMENTS HOLDCO, L.P. (as successor by merger to HCR STAFFORD FUND, L.P. and HCR POTOMAC FUND, L.P.)
HCRP OVERFLOW FUND, L.P.
HCR CANARY FUND, L.P.
HCR MOLAG FUND, L.P.
For the avoidance of doubt, the Royalty Payments (and any other amounts credited towards the Royalty Cap or otherwise payable by the Seller under the Agreement) shall be divided among the entities listed above as such entities shall collectively determine and the Seller shall not be responsible for how such payments are divided among such entities.
Exhibit 99.1
ADC Therapeutics Announces Comprehensive Strategic
Financial Restructuring
Marking Key Capital Structure Improvements
$86.6 Million Private Placement announced, with
participation from new and existing investors, extending expected cash runway into 2029
HealthCare Royalty financing agreement amended,
removing change-of-control payment
Senior secure loan refinanced, decreasing principal to $50M with bullet payment in August 2029 and no minimum liquidity
LAUSANNE, Switzerland — October 8, 2026 — ADC Therapeutics SA (NYSE: ADCT), a commercial-stage global leader and pioneer in the field of antibody drug conjugates (ADCs), today announced a comprehensive strategic financial restructuring designed to strengthen its balance sheet, reduce leverage, and increase strategic optionality to maximize shareholder value while extending the expected cash runway into 2029. The strategic initiative includes securing new equity financing, restructuring the HealthCare Royalty (HCR) agreement, and reducing the outstanding loan principal.
“We are pleased to announce this robust set of improvements to our capital structure which reflect confidence in ZYNLONTA’s growth potential from both long-standing and new investors as well as from HCR and our lenders,” said Ameet Mallik, Chief Executive Officer of ADC Therapeutics. “These efforts extend our expected cash runway and increase strategic optionality, as we approach much anticipated LOTIS-7 and MZL data abstracts in early November with presentations in December at the 68th American Society of Hematology Annual Meeting.”
Strategic Financing
ADC Therapeutics has entered into securities purchase agreements for the sale of its equity securities to certain institutional investors, including new investor Bain Capital Life Sciences and existing investors Redmile, TCGX, and Nantahala Capital, in a $86.6 million private investment in public equity (“PIPE”) financing. In the PIPE, ADC Therapeutics is selling 12.9 million common shares at $1.42 per share and pre-funded warrants to purchase 48.1 million common shares at $1.32, per pre-funded warrant, which is the price per common share in the PIPE minus the exercise price of CHF 0.08 per pre-funded warrant.
Gross proceeds from the PIPE, assuming cash exercise of the pre-funded warrants, are anticipated to be approximately $86.6 million before deducting placement agent fees and offering expenses. The PIPE is expected to close on October 22, 2026, subject to customary closing conditions. ADC Therapeutics
intends to use the net proceeds from the PIPE to invest in continued funding of ZYNLONTA pipeline studies, including the Phase 3 trials in diffuse large B-cell lymphoma (ZYNLONTA plus glofitamab) and marginal zone lymphoma (ZYNLONTA monotherapy), and strengthen the balance sheet, in addition to funding working capital and general corporate purposes.
The offer and sale of the foregoing securities are made in a transaction not involving a public offering, and the foregoing securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or applicable state securities laws, and are being offered and sold in reliance on Section 4(a)(2) of the Securities Act. The securities may not be reoffered or resold in the United States except pursuant to an effective registration statement or an applicable exemption from the registration requirements of the Securities Act and other applicable securities laws. ADC Therapeutics has agreed to file a registration statement with the Securities and Exchange Commission registering the resale of the common shares to be sold in the PIPE and the common shares issuable upon exercise of the pre-funded warrants to be sold in the PIPE.
Amendment to Royalty Purchase and Sale Agreement
On October 7, 2026, ADC Therapeutics entered into Amendment No. 2 (the “HCR Amendment”) to its Purchase and Sale Agreement, dated August 25, 2021 (as amended from time to time, the “HCR Agreement”), with certain entities managed by HealthCare Royalty Management, LLC (collectively, “HCR”). To date, HCR has provided $300 million of funding to the Company. The HCR Amendment eliminates the $150 million payment otherwise required solely upon a change of control.
In addition, the HCR Amendment reduces the aggregate outstanding principal amount of third-party indebtedness of the Company and its subsidiaries are permitted to incur to $50.0 million. An uncured breach of this debt limitation covenant entitles HCR to elect to receive the non-performance payment equaling 1.5 times the difference between the $300 million aggregate purchase price and royalty payments and other qualifying credited amounts actually received by HCR, subject to a cure period. The HCR Amendment also requires the Company, subject to shareholder approval and applicable legal and fiduciary duties, to use its best efforts to become a Delaware corporation. In addition, the HCR Amendment amends the warrants to purchase 9,834,776 common shares, which were issued on February 18, 2026, in connection with a previous amendment to the HCR Agreement (the “HCR Warrants”), by reducing the exercise price of the HCR Warrants from $3.8130 per share to $0.10 per share; by adding a provision that prohibits the exercise of the HCR Warrants if, upon giving effect to such exercise, the aggregate number of the Company’s common shares beneficially owned by the holder (together with its affiliates and certain attribution parties) would exceed 4.99% (or, 61 days after a written notice from such holder, any other percentage not in excess of 9.99%) of the number of the Company’s common shares outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the HCR Amendment; and removing the contractual restrictions on transfers of the HCR Warrants and shares issuable upon exercise of the HCR Warrants before January 1, 2028. The effectiveness of the HCR Amendment is conditioned upon the completion of the PIPE by October 31, 2026, and the effectiveness of the Loan Agreement Amendment. All other terms of the HCR Agreement remain unchanged including the ongoing royalty obligations which will continue until the Royalty Cap (as defined in the HCR Agreement).
Amendment to Loan Agreement
On October 7, 2026, ADC Therapeutics, certain subsidiaries of the Company, the lenders party thereto and Blue Owl Opportunistic Lending Master Fund I, L.P., as administrative agent and collateral agent, entered into a second amendment (the “Loan Agreement Amendment”) to the Loan Agreement and Guaranty, dated August 15, 2022 (as amended from time to time, the “Loan Agreement”).
The Loan Agreement Amendment provides for the prepayment of $70.0 million principal amount of term loans under the Loan Agreement, plus accrued and unpaid interest with respect thereto and any related fees and premiums, inclusive of the Company’s scheduled September 30, 2026, amortization payment. Immediately after such prepayment, the principal amount of outstanding term loans under the Loan Agreement will be $50.0 million. The Loan Agreement Amendment eliminates subsequent scheduled principal amortization, with the remaining principal payable at maturity unless earlier accelerated; eliminates the minimum liquidity covenant; and sets the minimum trailing four-quarter U.S. ZYNLONTA sales covenant at $65.0 million for the quarter ending December 31, 2026, and each quarter thereafter. The effectiveness of the Loan Agreement Amendment, including the consummation of the prepayment contemplated thereunder, is conditioned upon the completion of the PIPE.
In connection with the Loan Agreement Amendment, the Company entered into amendments to the warrants to purchase an aggregate of 527,295 common shares, which were issued on August 15, 2022, in connection with the Loan Agreement (the “Lender Warrants”). The amendments reduce the exercise price of the Lender Warrants from $8.30 per share to $1.00 per share (being the lesser of $1.00 per share and the price per common share in the PIPE). The effectiveness of the amendments to the Lender Warrants is conditioned upon the effectiveness of the Loan Agreement Amendment.
The company expects net product revenues from sales of ZYNLONTA to be approximately $21.0 million for the third quarter ended September 30, 2026 with cash and cash equivalents totaling $189.2 million as of September 30, 2026. On a proforma basis, giving effect to the estimated net cash proceeds from the PIPE of approximately $76.3 million (after deducting placement agent fees and estimated offering expenses), and the partial principal prepayment of $69.6 million (including fees) on the senior secured term loan, the Company would have had approximately $196 million of cash and cash equivalents as of that date.
Jefferies, Guggenheim Securities, and Cantor are acting as placement agents for the PIPE. Davis Polk & Wardwell LLP and Homburger AG are acting as legal advisors to ADC Therapeutics.
This press release shall not constitute an offer to sell or a solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.
The Company has uploaded an updated corporate presentation to the Investor portion of its website.
About ZYNLONTA®
ZYNLONTA® is a CD19-directed antibody drug conjugate (ADC). Once bound to a CD19-expressing cell, ZYNLONTA is internalized by the cell, where enzymes release a pyrrolobenzodiazepine (PBD) payload. The potent payload binds to DNA minor groove with little distortion, remaining less visible to DNA repair mechanisms. This ultimately results in cell cycle arrest and tumor cell death.
The U.S. Food and Drug Administration (FDA) and the European Medicines Agency (EMA) have approved ZYNLONTA (loncastuximab tesirine-lpyl) for the treatment of adult patients with relapsed or refractory (r/r) large B-cell lymphoma after two or more lines of systemic therapy, including diffuse large B-cell lymphoma (DLBCL) not otherwise specified (NOS), DLBCL arising from low-grade lymphoma and also high-grade B-cell lymphoma. The trial included a broad spectrum of heavily pre-treated patients (median three prior lines of therapy) with difficult-to-treat disease, including patients who did not respond to first-line therapy, patients refractory to all prior lines of therapy, patients with double/triple hit genetics and patients who had stem cell transplant and CAR-T therapy prior to their treatment with ZYNLONTA. This indication is approved by the FDA under accelerated approval and in the European Union under conditional approval based on overall response rate and continued approval for this indication may be contingent upon verification and description of clinical benefit in a confirmatory trial. Please see full prescribing information including important safety information about ZYNLONTA at www.ZYNLONTA.com.
ZYNLONTA is also being evaluated as a therapeutic option in combination studies in other B-cell malignancies and earlier lines of therapy.
About ADC Therapeutics
ADC Therapeutics (NYSE: ADCT) is a commercial-stage global leader and pioneer in the field of antibody drug conjugates (ADCs), transforming treatment for patients through our focused portfolio with ZYNLONTA® (loncastuximab tesirine-lpyl).
ADC Therapeutics' CD19-directed ADC ZYNLONTA received accelerated approval by the FDA and conditional approval from the European Commission for the treatment of relapsed or refractory diffuse large B-cell lymphoma after two or more lines of systemic therapy. ZYNLONTA is also in development in combination with other agents and in earlier lines of therapy.
Headquartered in Lausanne (Biopôle), Switzerland, with operations in New Jersey, ADC Therapeutics is focused on driving innovation in ADC development with specialized capabilities from clinical to manufacturing and commercialization.
ZYNLONTA® is a registered trademark of ADC Therapeutics SA.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. In some cases you can identify forward-looking statements by terminology such as "may", "will", "should", "would", "expect", "intend", "plan", "anticipate", "believe", "estimate", "predict", "potential", "seem", "seek", "future", "continue", or "appear" or the negative of
these terms or similar expressions, although not all forward-looking statements contain these identifying words. Forward-looking statements are subject to certain risks and uncertainties that can cause actual results to differ materially from those described. Factors that may cause such differences include, but are not limited to: the adequacy of the LOTIS-5 clinical trial data to support full regulatory approval and our ability to maintain accelerated approval in the United States and foreign jurisdictions for our product; our ability to identify and execute on potential regulatory and compendia pathways; the timing, content and outcome of meetings with and feedback or other communications provided by regulatory authorities including U.S. FDA including our ability to adequately address the serious concerns related to the LOTIS-5 trial results raised by the FDA at the recent pre-sBLA submission meeting; the timing, submission and outcome of an sBLA related to LOTIS-5 and potential approval; the actual and perceived benefit-risk profile for ZYNLONTA as studied in the LOTIS-5 trial; the assessment of the data from LOTIS-5 study, including additional analyses of outcomes observed for safety, efficacy and within key geographic regions and across certain patient sub-populations; the path for full regulatory approval for ZYNLONTA in the United States and foreign jurisdictions and into earlier lines of therapy; whether future LOTIS-7 results will be consistent with or different from the prior disclosure, the timing, results and publication of the full LOTIS-7 trial data and potential compendia inclusion; future regulatory strategy for a Phase 3 trial for the combination of ZYNLONTA plus glofitamab; our expected revenue growth in 2027 and the Company's ability to sustain or grow ZYNLONTA® revenue in the future; our ability to effect the proposed amendments to the HCR agreement and the loan agreement; our expected cash runway into at least 2028 which assumes use of the minimum liquidity amount required to be maintained under its loan agreement covenants; our ability to comply with the terms of our indebtedness; changes in our regulatory and commercial strategy; the ability of our partners to commercialize ZYNLONTA® in foreign markets, the timing and amount of future revenue and payments to us from such partnerships and their ability to obtain or maintain regulatory approval for ZYNLONTA® in foreign jurisdictions; the timing and results of the Company's clinical trials; the timing, publication and results of investigator-initiated trials including those studying FL and MZL and the potential regulatory and/or compendia strategy and the future opportunity; the timing and outcome of regulatory submissions for the Company's products or product candidates; actions by the FDA or foreign regulatory authorities; projected revenue and expenses; the Company's indebtedness, including HealthCare Royalty Management and Blue Owl and Oaktree facilities, and the restrictions imposed on the Company's activities by such indebtedness, the ability to comply with the terms of the various agreements and repay such indebtedness and the significant cash required to service such indebtedness; the Company's ability to obtain financial and other resources for its research, development, clinical, and commercial activities; uncertainties related to a potential change in domicile from Switzerland to Delaware, including the outcome of tax analyses associated with such redomiciliation, the receipt of requisite shareholder approval, and the ability to complete the redomiciliation on the anticipated terms and timeline, if at all; and the uncertainties of international trade policies, including tariffs, sanctions, trade barriers and most favored nation drug pricing and the potential impact they may have on our business, financial condition, and results of operations. Additional information concerning these and other factors that may cause actual results to differ materially from those anticipated in the forward-looking statements is contained in the "Risk Factors" section of the Company's Annual Report on Form 10-K and in the Company's other periodic and current reports and filings with the U.S. Securities and Exchange Commission. These statements involve known and unknown risks, uncertainties and other
factors that may cause actual results, performance, achievements or prospects to be materially different from any future results, performance, achievements or prospects expressed in or implied by such forward-looking statements. The Company cautions investors not to place undue reliance on the forward-looking statements contained in this document.
The ZYNLONTA net sales and cash and cash equivalents figures included in this press release are preliminary and unaudited and reflect the Company’s estimated financial results. In preparing this information, management made a number of complex and subjective judgments and estimates about the appropriateness of certain reported amounts and disclosures. The Company’s actual financial results for the quarter ended September 30, 2026 have not yet been finalized by management. The preliminary financial information is not a comprehensive statement of all financial results for the quarter ended September 30, 2026. Subsequent information or events may lead to material differences between the foregoing preliminary financial results and those reported in the Company’s subsequent SEC filings. Accordingly, investors should not place undue reliance on these preliminary financial results.
CONTACTS:
Investors & Media
Nicole Riley
ADC Therapeutics
Nicole.Riley@adctherapeutics.com
+1 862-926-9040