ADC Therapeutics SA 6-K, filed Feb 6, 2023
ADC Therapeutics SA (ADCT)
About this 6-K
ADC Therapeutics SA filed this 6-K on February 6, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2023.
Commission File Number: 001-39071
ADC Therapeutics SA
(Exact name of registrant as specified in its charter)
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
| Form 20-F |
☒ |
Form 40-F |
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
INFORMATION CONTAINED IN THIS REPORT ON FORM 6-K
On February 6, 2023, A.T. Holdings II Sàrl (“A.T. Holdings II”) completed a public offering of 12,000,000 common shares of ADC Therapeutics SA (the “Company” or “we”), at a public offering price of $5.00 per share, pursuant to an underwriting agreement (the “Underwriting Agreement”) among the Company, A.T. Holdings II and Jefferies LLC. The Underwriting Agreement includes the terms and conditions for the offering and sale of the securities, indemnification and contribution obligations, and other terms and conditions customary in agreements of this type. The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to the Underwriting Agreement, which is attached to this Report on Form 6-K as Exhibit 1.1. The securities have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form F-3 (File No. 333-256807) (the “Registration Statement”). The Company has filed with the U.S. Securities and Exchange Commission a prospectus supplement dated February 2, 2023, together with an accompanying prospectus dated June 4, 2021, relating to the offer and sale of the securities. Opinion of counsel regarding the validity of the securities is attached to this Report on Form 6-K as Exhibit 5.1 and the consent of such counsel relating to the incorporation of such opinion into the Registration Statement is attached to this Report on Form 6-K as Exhibit 23.1.
As previously disclosed, on February 2, 2023, we entered into a letter agreement (the “Auven Agreement”) with A.T. Holdings II. In consideration for our assistance in the public offering described above, A.T. Holdings II agreed that, without our prior written consent, until February 2, 2024, it will not, and will not publicly disclose an intention to offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any of our common shares or any other securities convertible into or exercisable or exchangeable for our common shares, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of our common shares. The foregoing restrictions do not apply to any transfers or dispositions to affiliates (provided that such recipient enters into a customary lock-up agreement with us), any transfers or dispositions to partners, members, stockholders or other equity holders or those of a subsidiary (provided that such recipient is not the lockup party or an affiliate of the lockup party and such recipient enters into a customary lock-up agreement with us), sales in the potential public offering described above, pledges to Oaktree Fund Administration, LLC (“Oaktree”) pursuant to debt agreements and any transfers to Oaktree upon foreclosure, and transfers in connection with a change-of-control transaction. We, in our sole discretion, may release the common shares and other securities subject to the foregoing restrictions in whole or in part at any time. In addition, A.T. Holdings II has agreed that, if during the restricted period, we launch and close an underwritten equity primary financing resulting in at least $50 million net proceeds (after underwriting discount and commission), it will enter into a customary 90-day lockup agreement with the underwriters of such offering. The foregoing description of the Auven Agreement is qualified in its entirety by reference to the Auven Agreement, which is attached to this Report on Form 6-K as Exhibit 99.1.
As previously disclosed, on February 6, 2023, upon the closing of the public offering described above, we entered into a lockup and registration rights agreement (the “Oaktree Agreement”) with Oaktree Fund Administration LLC, OCM Strategic Credit Investments S.à r.l., OCM Strategic Credit Investments 2 S.à.r.l., OCM Strategic Credit Investments 3 S.à r.l., Oaktree Gilead Investment Fund AIF (Delaware), L.P., Oaktree Huntington-GCF Investment Fund (Direct Lending AIF), L.P., Oaktree Specialty Lending Corporation, and Pathway Strategic Credit Fund III, L.P. (collectively, the “Counterparties”), pursuant to which we agreed, after a default by A.T. Holdings II and in the event of a foreclosure or other exercise of remedies by the Counterparties on any shares held by A.T. Holdings II pledged to the Counterparties pursuant to the certain Credit and Security Agreement, dated April 27, 2020 (as amended, the “Credit and Security Agreement”), among A.T. Holdings II, Oaktree, as agent, and the lenders party thereto, that were not sold in the public offering described above (such common shares, the “Remaining Shares”), to file after the restricted period described below, if requested by such parties, a registration statement registering for
resale under the Securities Act such common shares. We will be required to keep such registration statement effective until all such common shares have been sold, are no longer outstanding, are no longer held by persons entitled to registration rights or until the date that is three years from the initial effective date of such registration statement. We and the Counterparties also agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act. In the Oaktree Agreement, the Counterparties agreed that, without our prior written consent, until February 2, 2024, they will not, and will not publicly disclose an intention to offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any of the Remaining Shares, or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Remaining Shares. The foregoing restrictions do not apply to any transfers or dispositions to affiliates (provided that such recipient enters into a customary lock-up agreement with us), any transfer or dispositions to partners, members, stockholders or other equity holders (provided that such recipient enters into a customary lock-up agreement with us), and transfers in connection with a change-of-control transaction. We, in our sole discretion, may release the common shares subject to the foregoing restrictions in whole or in part at any time. In addition, the Counterparties agreed that, if during the restricted period, we launch and close an underwritten equity primary financing resulting in at least $50 million net proceeds (after underwriting discount and commission), they will enter into a customary 90-day lockup agreement with the underwriters of such offering with respect to the Remaining Shares. The foregoing description of the Oaktree Agreement is qualified in its entirety by reference to the Oaktree Agreement, which is attached to this Report on Form 6-K as Exhibit 4.1.
INCORPORATION BY REFERENCE
This Report on Form 6-K, including Exhibits 1.1, 4.1, 5.1, 23.1 and 99.1, shall be deemed to be incorporated by reference into the registration statement on Form F-3 (Registration No. 333-256807) of ADC Therapeutics SA and to be a part thereof from the date on which this report is filed, to the extent not superseded by documents or reports subsequently filed or furnished.
This Report on Form 6-K (other than Exhibits 1.1, 4.1, 5.1, 23.1 and 99.1) shall be deemed to be incorporated by reference into the registration statements on Form F-3 (Registration Nos. 333-267293 and 333-267295) of ADC Therapeutics SA and to be a part thereof from the date on which this report is filed, to the extent not superseded by documents or reports subsequently filed or furnished.
EXHIBIT INDEX
| Exhibit No. | Description |
| 1.1 | Underwriting Agreement, dated February 2, 2023, among ADC Therapeutics SA, A.T. Holdings II Sàrl and Jefferies LLC |
| 4.1 | Registration Rights Agreement, dated February 6, 2023, between ADC Therapeutics SA and Oaktree Fund Administration LLC, OCM Strategic Credit Investments S.à r.l., OCM Strategic Credit Investments 2 S.à.r.l., OCM Strategic Credit Investments 3 S.à r.l., Oaktree Gilead Investment Fund AIF (Delaware), L.P., Oaktree Huntington-GCF Investment Fund (Direct Lending AIF), L.P., Oaktree Specialty Lending Corporation, and Pathway Strategic Credit Fund III, L.P. |
| 5.1 | Opinion of Homburger AG |
| 23.1 | Consent of Homburger AG (included in Exhibit 5.1) |
| 99.1 | Letter Agreement, dated February 2, 2023, between ADC Therapeutics SA and A.T. Holdings II Sàrl |
SIGNATURE
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, thereunto duly authorized.
| ADC Therapeutics SA | ||
| Date: February 6, 2023 | ||
| By: | /s/ Peter J. Graham | |
| Name: | Peter J. Graham | |
| Title: | Authorized Signatory | |
EXHIBIT 1.1
12,000,000 Shares
ADC Therapeutics SA
Common
SHares, nominal Value CHF 0.08 PER SHARE
UNDERWRITING AGREEMENT
February 2, 2023
February 2, 2023
Jefferies LLC
As Representative of the several Underwriters named in Schedule II hereto
| c/o | Jefferies LLC 520 Madison Avenue New York, New York 10022 |
Ladies and Gentlemen:
The shareholder named in Schedule I hereto (the “Selling Shareholder”) proposes, subject to the terms and conditions stated herein, to sell to the Underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting as representative (the “Representative”), an aggregate of 12,000,000 common shares, nominal value CHF 0.08 per share, of ADC Therapeutics SA, a société anonyme domiciled in Epalinges, Switzerland, and organized under the laws of Switzerland (the “Company”). The common shares, nominal value CHF 0.08 per share, of the Company are hereinafter referred to as the “Common Shares.” The aggregate of 12,000,000 Common Shares to be sold by the Selling Shareholder is herein called the “Shares.” In the event only one underwriter is listed in Schedule II hereto, any references in this Underwriting Agreement (the “Agreement”) to the “Underwriters” shall be deemed to refer to the sole underwriter in the singular form listed in such Schedule II.
The Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form F-3ASR (File No. 333-256807), including a prospectus, relating to the securities (the “Shelf Securities”), including the Shares, to be issued from time to time by the Company. The registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated June 4, 2021 in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by a prospectus supplement specifically relating to the Shares, is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the documents and pricing information set forth opposite the caption “Time of Sale Prospectus” in Schedule III hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the Company’s knowledge, threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, or as of the Closing Date (as defined in Section 5), will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement,
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the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use therein, it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the information contained in the first two sentences of first paragraph under the section entitled “Commission and Expenses"; the first sentence of the first paragraph under the section entitled “Stabilization”; and the first and fourth sentences under the section entitled “Electronic Distribution” under the caption “Underwriting” (collectively, the “Underwriter Information”).
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies, or if filed after the effective date of this Agreement, will comply when filed, in all material respects with the applicable requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any, each furnished to the Representative before first use, the Company has not prepared, used or referred to, and will not, without the Representative’s prior consent, prepare, use or refer to, any free writing prospectus.
(d) 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 as described in the Time of Sale Prospectus, 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 have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) 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 as described in the Time of Sale Prospectus, 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 have a material adverse
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effect on the Company and its subsidiaries, taken as a whole. Except as otherwise described in each of the Prospectus, as of its date, the Registration Statement and the Time of Sale Prospectus, 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.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The Common Shares (including the Shares) have been duly authorized and are validly issued, fully paid and non-assessable.
(h) (i) The issued and outstanding share capital of the Company and the authorized and conditional share capital of the Company conform as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus, as of its date, (ii) except as otherwise described in each of the Prospectus, as of its date, the Registration Statement and the Time of Sale Prospectus, 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 and (iii) except as otherwise described in each of the Prospectus, as of its date, the Registration Statement and the Time of Sale Prospectus, 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.
(i) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement does not contravene any provision of (i) applicable law, (ii) the articles of association (Statuts) or the organizational regulations (Règlement d'organisation) of the Company (iii) or 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, have a material adverse effect on the Company or on the power and ability of the Company to perform its obligations under this Agreement; and 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
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this Agreement, except 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 Shares.
(j) Except as otherwise described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, all dividends, if any, and other distributions declared and payable on the Shares may under the current laws and regulations of Switzerland be paid in freely convertible CHF and, except for certain restrictions with respect to national and international sanctions relating to certain countries, may be freely transferred out of Switzerland without there being required any authorization by any governmental body or agency.
(k) 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 Time of Sale Prospectus.
(l) 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 (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not reasonably be 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 Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(m) Each preliminary prospectus, if any, filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(o) 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
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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, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) 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, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) Except as otherwise have been validly waived or complied with in connection with the sale of the Shares contemplated hereby or as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(r) (i) 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 office) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (ii) 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.
(s) 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
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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.
(t) (i) 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 an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury (“HMT”), the Swiss State Secretariat of Economic Affairs (“SECO”), the Swiss Directorate of International Law (“DIL”) or other relevant sanctions authority (collectively, “Sanctions”), or
(B) 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).
(ii) For the past five (5) years, 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.
(u) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (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 or equity awards or grants or forfeiture of equity awards outstanding as of such respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, in each case granted pursuant to the equity compensation plans described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus), short-term debt or long-term debt of the Company and its subsidiaries, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
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(v) 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 1(w)) 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 Time of Sale Prospectus 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; and any real property and buildings held 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 Time of Sale Prospectus.
(w) Except as described in each of the Prospectus, the Registration Statement or the Time of Sale Prospectus and except as would not 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 Registration Statement, Prospectus or the Time of Sale Prospectus (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 Prospectus, the Registration Statement or the Time of Sale Prospectus as
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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.
(x) No labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Time of Sale Prospectus, 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.
(y) 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 prudent and customary in the businesses in which they are engaged, except where the failure to be so insured would not reasonably be 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; and 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 reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(z) 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
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failure to obtain such certificates, authorization and permits would not, individually or in the aggregate, 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 Time of Sale Prospectus.
(aa) 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 International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS”) and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(bb) Except as described in each of the Registration Statement, the Prospectus and the Time of Sale Prospectus, 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.
(cc) Except as described in each of the Registration Statement, the Prospectus and the Time of Sale Prospectus, the Company has not sold, issued or distributed any Common Shares, during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(dd) 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, 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 IFRS 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
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reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ee) The consolidated financial statements included in the Time of Sale Prospectus, 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 Time of Sale Prospectus, such financial statements have been prepared in conformity with IFRS 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.
(ff) 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 Commission and the Public 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 CO, and the Swiss Audit Oversight Act (Loi fédérale sur l’agrément et la surveillance des réviseurs) and any ordinances promulgated thereunder, respectively.
(gg) The Company (i) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule IV hereto. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) or 163B of the Securities Act. Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
(hh) As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of (A) the Time of Sale Prospectus, (B) any free writing prospectus, when considered together with the Time of Sale Prospectus, and (C) any individual Written Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(ii) Except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, no stamp, documentary, issuance, registration, transfer, withholding or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Switzerland or to any taxing authority thereof or therein in connection with the execution, delivery or consummation of this Agreement.
(jj) It is not necessary under the laws of Switzerland (i) to enable the Underwriters to enforce their rights under this Agreement, to enable any holder of the Shares to enforce their respective rights thereunder, provided that they are not otherwise engaged in business in Switzerland or (ii) solely by reason of the execution, delivery or consummation of this Agreement for any of the Underwriters or any holder of the Shares of the Company to be qualified or entitled to carry out business in Switzerland.
(kk) This Agreement is in proper form under the laws of Switzerland for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability or admissibility into evidence in Switzerland of this Agreement.
(ll) The Company is a “foreign private issuer” as defined in Rule 405 of the Securities Act.
(mm) The courts of Switzerland would recognize as a valid judgment any final monetary judgment obtained against the Company in the courts of the State of New York, unless the judgment would be deemed incompatible with Swiss public policy.
(nn) Neither the Company nor any of its subsidiaries has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Switzerland; provided, however, that (i) such choice of law may not extend to non-contractual obligations, (ii) the contents of the chosen law of the State of New York may need to be proven as a matter of fact and (iii) a Swiss court would apply Swiss procedural rules. The irrevocable and unconditional waiver and agreement of the Company contained in Section 18 not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Switzerland.
(oo) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Switzerland and will be honored by the courts of Switzerland, provided, however, that (i) such choice of law may not extend to non-contractual obligations, (ii) the contents of the chosen law of the State of New York may need to be proven as a matter of fact and (iii) a Swiss court would apply Swiss procedural rules. The Company has the power to submit, and pursuant to Section 18 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18), and has the power to designate, appoint and empower, and pursuant to Section 19, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
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(pp) Neither the Company nor any of its subsidiaries or affiliates has any securities rated by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(qq) Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus is not based on or derived from sources that are reliable and accurate.
(rr) Except as described in each of the Registration Statement, the Prospectus or the Time of Sale Prospectus, and except as would not 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 Registration Statement, the Time of Sale Prospectus and the Prospectus, or the results of which are referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus, 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 Registration Statement, the Time of Sale Prospectus and the Prospectus 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 Registration Statement, the Time of Sale Prospectus and the Prospectus, the results of which call into question the results described or referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus; (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 Registration Statement, the Time of Sale Prospectus and the Prospectus or the results of which are referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus, 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.
(ss) Except as described in each of the Registration Statement, the Prospectus or the Time of Sale Prospectus and except as would not 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
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to the Company’s product candidates that are described or referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus; all such filings, declarations, listings, registrations, reports or submissions were to the Company’s knowledge in compliance with applicable laws when filed; and 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.
(tt) Except as described in each of the Registration Statement, the Prospectus or the Time of Sale Prospectus and except as would 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. For purposes of this Agreement, “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. 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,
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applications, records, claims, submissions and supplements or amendments as required by the Health Care Laws, and all such reports, documents, forms, notices, applications, 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).
(uu) Except as described in each of the Registration Statement, the Prospectus or the Time of Sale Prospectus and except as would not 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.
(vv) Except as described in each of the Prospectus, the Registration Statement or the Time of Sale Prospectus and except as would not 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
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(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.
(ww) 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.
2. Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, and constitutes the valid and binding agreement of the Selling Shareholder.
(b) At the Closing and upon execution and delivery of the Letter Agreement re: Share Sale (the “Letter Agreement”) between the Selling Shareholder, Oaktree Fund Administration, LLC and Oaktree Capital Management, L.P. (together with Oaktree Fund Administration, LLC, “Oaktree”), the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the custody agreement signed by the Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares (the “Custody Agreement”) will not contravene any provision of (i) applicable law, or (ii) the certificate of incorporation or by-laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or (iii) any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except that in the case of clauses (i) and (iii) as would not individually, or in the aggregate, have a material adverse effect on the Selling Shareholder or on the power and ability of the Selling Shareholder to perform its obligations under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the
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performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder (i) has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares, which will, as of the Closing Date and upon execution and delivery by Oaktree of the Letter Agreement, be free and clear of all security interests, claims, liens, equities or other encumbrances, and (ii) has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares or a security entitlement in respect of such Shares.
(d) The Custody Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and constitutes the valid and binding agreement of the Selling Shareholder.
(e) Upon payment for the Shares pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder has delivered to the Representative an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set
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forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell the Shares pursuant to this Agreement.
(h) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, with respect to the Selling Shareholder Information (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that that the representations and warranties set forth in this Section 2(h) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon the Underwriter Information; and provided further that the representations and warranties set forth in this Section 2(h) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing to the Company by the Selling Shareholder specifically for use therein; it being understood that the only such information furnished in writing to the Company by the Selling Shareholder specifically for use therein is that information relating to the Selling Shareholder under the caption “Selling Shareholder” in the Registration Statement, the Time of Sale Prospectus or the Prospectus (such information, the “Selling Shareholder Information”).
(i) (i) Neither the Selling Shareholder nor any of its subsidiaries, nor, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) 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
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determined by the U.S. Secretary of the Treasury pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) 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
(B) 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).
(iii) The Selling Shareholder has not knowingly engaged in, is not now knowingly 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.
(iv) (a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof 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 in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries 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; and (c) neither the Selling Shareholder nor any of 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.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable 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 Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or to the knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the
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Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) Except for any Swiss federal stamp duty on transfers of securities for consideration in the secondary market, which may be due by, or pertain to, such Underwriters or such purchasers procured by Underwriters that are qualified as Swiss securities dealers for purposes of Swiss federal stamp duty legislation, no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Switzerland or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 18 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18), and has the power to designate, appoint and empower, and pursuant to Section 18, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(m) Neither the Selling Shareholder nor any of its subsidiaries has taken, directly or indirectly, without giving effect to the activities of the Underwriters, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or of any “reference security” (as defined in Regulation M) with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
3. Agreements to Sell and Purchase. The Selling Shareholder hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Selling Shareholder the respective number of Shares set forth in Schedule II hereto opposite its name at $4.875 per share (the “Purchase Price”).
4. Terms of Public Offering. The Selling Shareholder is advised by the Representative that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in the Representative’s judgment is advisable. The Selling Shareholder is further advised by the Representative that the Shares are to be offered to the public initially at $5.00 per share (the “Public Offering Price”) and to certain dealers selected by the Representative at a price that represents a concession not in excess of $0.07500 per share under the Public Offering Price.
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5. Payment and Delivery. Payment for the Shares shall be made to the Selling Shareholder in Federal or other funds immediately available in New York City against delivery of the Shares for the respective accounts of the several Underwriters at 10:00 a.m. (New York City time) on February 6, 2023 or at such other time on the same or such other date, not later than February 13, 2023, as shall be designated in writing by the Representative. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Not later than 9:15 a.m. (New York City time) on the Closing Date, the Selling Shareholder will take all steps necessary to ensure that the Shares will be (A) duly recorded as intermediated securities (Bucheffekten) in DTC, (B) delivered for, and duly recorded in, the respective accounts of the several Underwriters at DTC in such names and in such denominations as the Representative shall request in writing not later than one full business day prior to the Closing Date, and (C) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Company), in accordance with the instructions of the Representative. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters duly paid and (ii) any withholding required by law.
6. Conditions to the Underwriters’ Obligations. The obligations of the Selling Shareholder to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than 4:00 p.m. (New York City time) on the date hereof, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or contemplated under the Securities Act.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date there shall not have occurred any change, or any development involving a prospective change, 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 Time of Sale Prospectus that, in the Representative’s judgment, is material and adverse and that makes it, in the Representative’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
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(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Davis Polk & Wardwell LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Homburger AG, Swiss counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of Medler Ferro Woodhouse & Mills PLLC, outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the underwriters.
(f) The Underwriters shall have received on the Closing Date an opinion of Foley & Lardner LLP, outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date an opinion of Mewburn Ellis LLP, outside intellectual property counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(h) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Cooley LLP, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Underwriters.
(i) The Underwriters shall have received on the Closing Date an opinion of each of Bär & Karrer AG and Akin Gump Strauss Hauer & Feld LLP, counsel for the Selling Shareholder, dated the Closing Date, in form and substance satisfactory to the Underwriters.
With respect to Section 6(c) and 6(h) above, Davis Polk & Wardwell LLP and Cooley LLP, respectively, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(i) above, each of Bär & Karrer AG and Akin Gump Strauss Hauer & Feld LLP may rely upon an opinion or opinions of counsel for the Selling Shareholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Shareholder contained herein and in any documents and instruments; provided that (A) each such counsel for the Selling Shareholder is satisfactory to the Representative’s counsel, (B) a copy of each opinion so relied upon is delivered to the Representative and is in form and substance satisfactory to the Representative’s counsel, (C) copies of any such documents and instruments shall be delivered to the Representative and shall be in form and substance satisfactory to the Representative’s counsel and (D) each of Bär & Karrer AG and Akin Gump Strauss Hauer & Feld LLP shall state in their opinion that they are justified in relying on each such other opinion.
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The opinions of Davis Polk & Wardwell LLP, Homburger AG, Medler Ferro Woodhouse & Mills PLLC, Foley & Lardner LLP and Mewburn Ellis LLP described in Section 6(c), 6(d), 6(e), 6(f) and 6(g) above shall be rendered to the Underwriters at the request of the Company, as the case may be, and shall so state therein.
(j) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers SA, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than two business days prior to the date thereof.
(k) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between Jefferies LLC and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of Common Shares or certain other securities, delivered to the Representative on or before the date hereof, shall be in full force and effect on the Closing Date.
(l) The Underwriters shall have received certificates from the Chief Financial Officer of the Company, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Representative, on such matters as indicated and substantially in the form and substance set forth in Exhibit C hereto.
(m) (i) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Custody Agreement shall not contravene any provision of (x) applicable law, or (y) the certificate of incorporation or by laws of the Selling Shareholder (if the Selling Shareholder is a corporation), or (z) any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except that in the case of clauses (x) and (z) as would not individually, or in the aggregate, have a material adverse effect on the Selling Shareholder or on the power and ability of the Selling Shareholder to perform its obligations under this Agreement; (ii) no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares; (iii) the Shares shall be free and clear of all security interests, claims, liens, equities or other encumbrances; and (iv) the Letter Agreement shall have been duly executed and delivered by the parties thereto.
7. Covenants of the Company. The Company covenants with each Underwriter as follows:
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(a) The Company undertakes to keep an uncertificated securities book (Wertrechtebuch) in accordance with article 973c paragraph 2 CO.
(b) To furnish to the Representative, without charge, two signed copies of the Registration Statement (including exhibits thereto and documents incorporated by reference) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but including documents incorporated by reference) and to furnish to the Representative in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(h) or 7(i) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as the Representative may reasonably request; provided, however, that the requirements of this Section 7(b) shall be satisfied to the extent that such documents are available on EDGAR.
(c) All sums payable by the Company under this Agreement shall be paid free and clear of and without deductions or withholdings of any present or future taxes or duties, unless the deduction or withholding is required by law, in which case the Company shall pay such additional amount as will result in the receipt by each Underwriter of the full amount that would have been received had no deduction or withholding been made.
(d) All sums payable to an Underwriter shall be considered exclusive of any value added or similar taxes. Where the Company is obliged to pay value added or similar tax on any amount payable hereunder to an Underwriter, the Company shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
(e) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representative a copy of each such proposed amendment or supplement and not to file or publish any such proposed amendment or supplement to which the Representative reasonably objects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(f) To furnish to the Representative a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(g) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and
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any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(i) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) to which Shares may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(j) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request; provided, however, that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, to execute or file a general consent to serve of process in any jurisdiction or to subject itself to taxation in any jurisdiction in which it is not otherwise subject.
(k) To make generally available to the Company’s shareholders and to the Representative as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
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(l) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) the reasonable, documented cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(j) hereof, including filing fees and the reasonable, documented fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iii) all filing fees and the reasonably incurred fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority (provided that the amount payable by the Company with respect to fees and disbursements of counsel for the Underwriters pursuant to subsections (ii) and (iii) shall not exceed $35,000), (iv) all costs and expenses incident to listing the Shares on NYSE and other national securities exchanges and foreign stock exchanges, (v) the cost of printing certificates representing the Shares, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, fifty percent (50%) of the cost of any aircraft chartered in connection with the road show to be used by both the Company and Underwriters with the prior approval of the Company (the remaining fifty percent (50%) of the cost of such aircraft to be paid by the Underwriters), (viii) the document production charges and expenses associated with printing this Agreement, and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section; provided that the provisions of this Section 7(l) will not modify rights for reimbursement of any of such costs, expenses and fees pursuant to any separate agreement between the Selling Shareholder (or any affiliate of the Selling Shareholder) and the Company. It is understood, however, that except as provided in this Section, Section 10 entitled “Indemnity and Contribution”, and the last paragraph of Section 12 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers
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they may make and all travel and other expenses of the Underwriters or any of their employees incurred by them in connection with participation in investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, other than the cost of aircraft chartered in connection with the road show with the prior approval of the Company, for which the Underwriters agree to pay for the other fifty percent (50%) not paid for by the Company, as described above.
The provisions of this Section 7(l) shall not supersede or otherwise affect any agreement that the Company and the Selling Shareholder (or any affiliate of the Selling Shareholder) may otherwise have for the allocation of such expenses among themselves. Notwithstanding anything to the contrary contained in this Section 7(l), the Company shall only pay or reimburse the Underwriter for expenses listed herein to the extent required by any agreement between the Company and Selling Shareholder (or any affiliate of the Selling Shareholder). For the avoidance of doubt, any payment or reimbursement payable to the Underwriter pursuant to this agreement that is not paid or reimbursed to the Underwriter by the Company, shall be reimbursed by the Selling Shareholder, and in no event shall the expenses detailed herein be the ultimate obligation of the Underwriter.
(m) If the Selling Shareholder is not a U.S. person for U.S. federal income tax purposes, the Company will deliver to each Underwriter (or its agent), on or before the Closing Date, (i) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the IRS of the required notice, as described in Treasury Regulations 1.897-2(h)(2).
(n) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
The Company also covenants with each Underwriter that, without the prior written consent of Jefferies LLC on behalf of the Underwriters, it will not, during the period ending 60 days after the date of the Prospectus (the “Restricted Period”), (1) issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, grant any instruction rights pursuant to article 25 of the Swiss Federal Act on Intermediated Securities (Weisungsrechte) or otherwise transfer or dispose of (or publicly announce any such issuance, offer, sale or disposal), directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares or (2) enter into any swap, hedge or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by
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delivery of Common Shares or such other securities, in cash or otherwise, (3) file any registration statement with the Commission relating to the offering of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares or (4) announce its intention to do any of the foregoing.
The restrictions contained in the preceding paragraph shall not apply to (a) the issuance by the Company of Common Shares upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and described in the Time of Sale Prospectus of which the Underwriters have been advised in writing, (b) grants or settlement of options, restricted shares or restricted share units to officers, directors, employees and consultants of the Company or its subsidiaries in accordance with the terms of any incentive compensation plan in effect or approved by the Board of Directors of the Company or the issuance by the Company of Common Shares upon the exercise of options or the filing by the Company of a registration statement with the Commission on Form S-8 in connection therewith, (c) the offer or issuance by the Company of Common Shares in connection with an acquisition, joint venture, commercial or collaborative relationship or the acquisition or license by the Company of the securities, business, property or other assets of another person or entity or pursuant to any employee benefit plan as assumed by the Company in connection with any such acquisition (provided that the aggregate number of Common Shares that the Company may offer or issue pursuant to this clause (c) shall not exceed 10% of the total number of Common Shares issued and outstanding immediately following the completion of the transactions contemplated by this Agreement), (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Shares or other securities, provided that (x) such plan does not provide for the transfer of Common Shares during the Restricted Period and (y) no public report or filing shall be made during the Restricted Period unless required by the Exchange Act and such filing shall clearly indicate, in the footnotes thereto or otherwise, that the filing relates to the circumstances described in this clause (d), (e) any amendments, and the effectiveness, of existing resale registration statements with the Commission with respect to Common Shares issued and issuable upon the conversion of securities outstanding on the date hereof exclusively as a result of contractual obligations contained in existing registration rights agreements described in the Time of Sale Prospectus, (f) any amendments, and the effectiveness, of a registration statement with the Commission with respect to Common Shares held by Oaktree Fund Administration LLC, OCM Strategic Credit Investments S.à r.l., OCM Strategic Credit Investments 2 S.à.r.l., Oaktree Gilead Investment Fund AIF (Delaware), L.P., Oaktree Huntington-GCF Investment Fund (Direct Lending AIF), L.P., Oaktree Specialty Lending Corporation and Pathway Strategic Credit Fund III, L.P. (the “Oaktree Entities”) as a result of contractual obligations contained in a registration rights agreement with the Oaktree Entities to be entered into upon the closing of this offering, (g) the offer and sale of Common Shares under the Company’s existing Open Market Sale AgreementSM, dated as of June 4, 2021, by and between the Company and Jefferies LLC, (h) the confidential submission and public filing by the Company, and the effectiveness, of any post-effective amendments to its registration statement with the Commission on Form F-3ASR (File No. 333-256807) for the purpose of including disclosure required for a registrant other than a well-known seasoned issuer, identifying the securities being registered, registering a specific amount of securities and paying the associated filing fee and the filing of a post-effective amendment or other registration statement on Form F-3 to replace any other current registration statement on Form F-3 or (k) the issuance of securities convertible into Common Shares to officers, directors, employees and consultants of the Company or its subsidiaries in connection
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with the surrender, exchange, repurchase or redemption of outstanding securities convertible into Common Shares; and provided that in the case of any transfer, distribution, offer or issuance pursuant to clause (c), any recipient of Common Shares pursuant to clause (c) shall enter into a written agreement substantially in the form of Exhibit B hereto, in the case of clause (d), (i) such plan does not provide for the transfer of Common Shares or other securities during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Shares or other securities may be made under such plan during the Restricted Period and in the case of clause (h), the Company will not offer or sell any Common Shares pursuant to its registration statement on Form F-3ASR (File No. 333-256807) during the Restricted Period, except as provided for in clause (g).
8. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
9. Covenants of the Selling Shareholder. The Selling Shareholder covenants with each Underwriter as follows:
(a) The Selling Shareholder will deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
(b) The Selling Shareholder will deliver to each Underwriter (or its agent), on the date of execution of this Agreement, a properly completed and executed specification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Selling Shareholder undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the foregoing Certification.
(c) All sums payable by the Selling Shareholder under this Agreement shall be paid free and clear of and without deductions or withholdings of any present or future taxes or duties, unless the deduction or withholding is required by law, in which case the Selling Shareholder shall pay such additional amount as will result in the receipt by each Underwriter of the full amount that would have been received had no deduction or withholding been made.
(d) All sums payable to an Underwriter shall be considered exclusive of any value added or similar taxes. Where the Selling Shareholder is obliged to pay value added or similar tax on any amount payable hereunder to an Underwriter, the Selling Shareholder shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
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(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon.
(f) The Selling Shareholder shall pay, and shall indemnify and hold the Underwriters harmless against, any stamp, issue, registration, documentary, sales, transfer or other similar taxes or duties imposed under the laws of Switzerland or any political sub-division or taxing authority thereof or therein that is payable in connection with (i) the execution, delivery, consummation or enforcement of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
10. Indemnity and Contribution. (a) (i) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use therein, it being understood that the only such information is the Underwriter Information. (ii) The Selling Shareholder agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act to the extent and in the manner set forth in Section 10(a)(i) above; provided, however, that the Selling Shareholder shall be liable only to the extent that such untrue statement or alleged untrue statement or such omission or alleged omission has been made in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, a road show, or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication in reliance upon and in conformity with the Selling Shareholder Information relating to the Selling Shareholder; provided, further, that the liability of the Selling Shareholder under the indemnity
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agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Shareholder, the Company’s directors, the Company’s officers who sign the Registration Statement and each person, if any, who controls the Company or the Selling Shareholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter and from the Selling Shareholder to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in the Registration Statement, or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus, road show or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication, it being understood that the only such information is the Underwriter Information.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 10(a), 10(b) or 10(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred, documented fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the reasonably incurred fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the reasonably incurred fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling
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Shareholder and all persons, if any, who control the Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representative. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate firm for the Selling Shareholder and such control persons of the Selling Shareholder, such firm shall be designated in writing by the Selling Shareholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 10(a), 10(b) or 10(c) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 10(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 10(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Selling Shareholder on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Selling Shareholder and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the
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cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Selling Shareholder on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Selling Shareholder or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 10 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The liability of the Selling Shareholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement. The Company and the Selling Stockholder may agree, as among themselves and without limiting the rights of the Underwriter under this Agreement, as to the respective amounts of such liability for which they each shall be responsible.
(e) The Selling Shareholder and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 10(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 10 and the representations, warranties and other statements of the Company and the Selling Shareholder contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, by or on behalf of the Selling Shareholder or any person controlling the Selling Shareholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
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11. Termination. The Underwriters may terminate this Agreement by notice given by the Representative to the Company and the Selling Shareholder, if after the execution and delivery of this Agreement and prior to the Closing Date, as the case may be, (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, the SIX Swiss Exchange, NYSE, the NYSE MKT, or the Nasdaq Global Market (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States or Switzerland shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal, New York State, Swiss or relevant foreign country authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representative’s judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representative’s judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Shares set forth opposite their respective names in Schedule II bears to the aggregate number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representative may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 12 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase the Shares and the aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased on such date, and arrangements satisfactory to the Representative, the Company and the Selling Shareholder for the purchase of the Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholder. In any such case either the Representative, the Company or the Selling Shareholder shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company or Selling Shareholder to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or Selling
34
Shareholder shall be unable to perform its obligations under this Agreement, the Company and the Selling Shareholder will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all reasonably incurred and documented out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder; provided that, the Company and Selling Shareholder shall not be required to reimburse the Underwriters in the event any such termination is effected pursuant to Section 11(i), 11(iii), 11(iv) or 11(v).
13. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company and the Selling Shareholder acknowledge that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, the Selling Shareholder or any other person, (ii) the Underwriters owe the Company and the Selling Shareholder only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company and the Selling Shareholder and (iv) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to any entity or natural person. The Company and the Selling Shareholder waive to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
(c) The Selling Shareholder further acknowledges and agrees that, although the Underwriters may provide the Selling Shareholder with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriters are not making a recommendation to the Selling Shareholder to participate in the offering or sell any Shares at the Purchase Price, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.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.
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15. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
17. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representative to Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: General Counsel; if to the Company shall be delivered, mailed or sent to ADC Therapeutics SA, Route de la Corniche 3B, 1066 Epalinges, Switzerland, Attention: General Counsel; and if to the Selling Shareholder shall be delivered, mailed or sent to A.T. Holdings II Sàrl, Route de la Corniche 3B, 1066 Epalinges, Switzerland, Attention: Stephen Evans-Freke.
18. Submission to Jurisdiction. Each of the Company and the Selling Shareholder irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “Specified Courts”) over any suit, action or proceeding arising out of or relating to this Agreement, the Prospectus, the Registration Statement or the offering of the Shares (each, a “Related Proceeding”). Each of the Company and the Selling Shareholder irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company and the Selling Shareholder has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, each of the Company and the Selling Shareholder irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
19. Appointment of Agents for Service. The Company has appointed ADC Therapeutics America, Inc., with offices at 430 Mountain Avenue, 4th Floor, Murray Hill, New Jersey, 07974 as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as the Company’s agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect. The Selling Shareholder herby irrevocably appoints Corporation Service Company, with offices at 19 West 44th Street, Suite 200, New York, NY 10036 as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Selling Shareholder waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Selling Shareholder represents and warrants that such agent has agreed to act as the Selling Shareholder’s agent for service of process, and the Selling Shareholder agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
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20. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company or the Selling Shareholder with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, each of the Company and the Selling Shareholder agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person hereunder, such Underwriter or controlling person agrees to pay to the Company or the Selling Shareholder an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person hereunder.
21. Taxes. If any sum payable by the Company or the Selling Shareholder to the Underwriter under this Agreement is subject to deduction or withholding, under Swiss law, the sum payable to the Underwriter under this Agreement shall be increased to such sum as will ensure that the Underwriter shall be left with the sum it would have had in the absence of such deduction or withholding, provided that no such additional amounts shall be payable as a result of any taxes imposed on the Underwriter by virtue of the Underwriter having or being deemed to have a permanent establishment in, or other connection with, Switzerland other than solely by reason of execution and delivery of this Agreement, the performance by the Underwriter of its obligations hereunder, the consummation of the transactions contemplated hereby and the enforcement of the rights with respect to the foregoing.
22. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section: (i) a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (ii)
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“Covered Entity” means any of the following: (A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (B) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (iv) “U.S. Special Resolution Regime” means each of (A) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (B) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Pages Follow]
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|
Very truly yours,
|
||||
|
ADC Therapeutics SA
|
||||
| By: | /s/ Ameet Malllik | |||
| Name: | Ameet Mallik | |||
| Title: | Chief Executive Officer | |||
|
A.T. Holdings II Sàrl
|
|||
| By: | /s/ Stephen Evans-Freke | ||
| Name: | Stephen Evans-Freke | ||
| Title: | Managing Director | ||
Accepted as of the date hereof
Jefferies LLC
Acting on behalf of themself and the
several Underwriters named in Schedule II hereto
| By: |
Jefferies LLC
|
||
| By: | /s/ Charles Glazer | ||
| Name: | Charles Glazer | ||
| Title: | Managing Director | ||
Schedule I
|
Selling Shareholder |
Number of Shares To Be Sold | |
| A.T. Holdings II Sàrl | 12,000,000 | |
|
| ||
| Total: |
12,000,000
|
Schedule II
|
Underwriter |
Number of Shares To Be Purchased | |
| Jefferies LLC | 12,000,000 | |
| Total: |
12,000,000
|
Schedule III
Time of Sale Prospectus
| 1. | The Basic Prospectus |
| 2. | Price per share to the public: $5.00 |
Number of shares offered by the Selling Shareholder: 12,000,000
There is no option for the Underwriters to purchase additional shares.
| 3. | Free Writing Prospectus dated February 2, 2023 |
SCHEDULE IV
Written Testing-the-Waters Communications
None.
EXHIBIT A
SELLING SHAREHOLDER FORM OF LOCK-UP LETTER
_____________, 2023
Jefferies LLC
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
The undersigned understands that Jefferies LLC, as representative (the “Representative”) of the several Underwriters, proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with ADC Therapeutics SA, a société anonyme organized under the laws of Switzerland (or any successor thereto, the “Company”), and A.T. Holdings II Sàrl, a société anonyme organized under the laws of Switzerland (or any successor thereto, the “Selling Shareholder”), providing for the public offering (the “Public Offering”) by the several Underwriters, including the Representative (the “Underwriters”), of a number of common shares (the “Shares”), par value CHF 0.08 per share (the “Common Shares”), of the Company by the Selling Shareholder.
If there is only one Underwriter identified in Schedule II to the Underwriting Agreement, references to “Underwriters” and “several Underwriters” in this letter shall instead mean the Underwriter and related plural terms shall instead be read in the singular.
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 365 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:
| (a) | transfers or dispositions of Common Shares or any security convertible into Common Shares to another corporation, member, partnership, limited liability company, trust or |
other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, or to an investment fund or other entity that controls or manages, or is under common control with, the undersigned;
| (b) | transfers or distributions of Common Shares or other securities to partners, members, stockholders, beneficiaries or other equity holders of the undersigned or any equity holders of any subsidiary of the undersigned (other than the undersigned or any affiliate of the undersigned); |
| (c) | sales of Common Shares to the Underwriters pursuant to the terms of the Underwriting Agreement; |
provided that in the case of any transfer, disposition or distribution (i) pursuant to clause (a) each transferee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) pursuant to clause (b), each transferee or distributee shall sign and deliver a lock-up letter substantially in the form attached as Exhibit A and (iii) pursuant to clause (a), (b) or (c), no public announcement or filing under Section 16(a) or Section 13 of the Exchange Act (or its foreign equivalent), reporting a reduction in beneficial ownership of Common Shares, shall be required or shall be voluntarily made during the Restricted Period, other than any Schedule 13D, Form 4 or Form 5 that is required to be filed under the Exchange Act (or its foreign equivalent) that indicates by footnote disclosure or otherwise the nature of the transfer or disposition, including, in the case of clause (a) or (b), that each transferee or distribute has signed and delivered a lock-up letter substantially in the form of this letter or attached as Exhibit A, as applicable;
| (d) | transfers or dispositions of Common Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a) or (b) above, provided that any Common Shares shall be subject to the terms of this agreement; |
| (e) | the pledge or transfer by the undersigned of Common Shares or any security convertible into Common Shares to, and pursuant to the Holder Loan Agreement (as defined below) entered into with, Oaktree Fund Administration LLC (“Oaktree”), as agent on behalf of the lenders thereto, governing indebtedness or commitments relating to indebtedness of the undersigned or its affiliates (other than the Company and its subsidiaries) and of which the Representative has been provided a copy, any pledge or transfer by the undersigned or its affiliates pursuant to any agreements with Oaktree governing indebtedness or commitments relating to indebtedness entered into for the purpose of refinancing any indebtedness under the Holder Loan Agreement, and any transfer upon foreclosure pursuant to such agreements or commitments, provided that any required filing under Section 16(a) or Section 13 of the Exchange Act (or its foreign equivalent) reporting a reduction in beneficial ownership by the undersigned or any party (pledgor or pledgee) shall indicate by footnote disclosure or otherwise (i) the nature of the transfer, and (ii) that Oaktree has entered into a 365-day lock-up agreement with the Representative relating to any Common Shares or any security convertible into Common Shares beneficially owned by Oaktree, and if any filing is required to be made under Section 13 or Section 16(a) of the Exchange Act (or its |
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foreign equivalent) during the Restricted Period, the undersigned shall provide the Representative prior written notice informing it of such report; or
| (f) | transfers or dispositions of Common Shares or any security convertible into Common Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Shares or any security convertible into Common Shares in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (f) shall not be applicable and the undersigned’s shares and other securities shall remain subject to the restrictions contained in this agreement. |
For purposes of this agreement, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold greater than 50% of the outstanding voting securities of the Company (or the surviving entity), provided that, for the avoidance of doubt, the Public Offering shall not constitute a Change of Control, and “Holder Loan Agreement” means that certain Credit and Security Agreement, dated as of April 27, 2020, by and among the Selling Shareholder, as the Borrower, the lenders party thereto and Oaktree Fund Administration LLC (or its affiliate), as Agent, and all amendments through the date hereof or as otherwise amended from time to time.
In addition, other than as permitted above, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the Restricted Period, exercise any right with respect to the registration with the Securities and Exchange Commission (or its foreign equivalent) of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Common Shares except in compliance with the foregoing restrictions.
The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with respect to the Public Offering and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to the undersigned in connection with the Public Offering, the Underwriters are not making a recommendation to the undersigned to participate in the Public Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
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If, during the Restricted Period, the Company launches and closes a bona fide underwritten equity primary financing of at least $50,000,000 in net proceeds (after deducting underwriter commissions but before offering expenses), the undersigned agrees to enter into a customary 90-day lockup with the underwriters of such offering.
The undersigned understands that, if (i) the Representative, on the one hand, or the Company or the Selling Shareholder, on the other hand, informs the other in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Public Offering, (ii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the securities to be sold thereunder, (iii) the Registration Statement related to the Public Offering is withdrawn prior to execution of the Underwriting Agreement or (iv) the Underwriting Agreement is not executed on or before February 15, 2023, then, in each case, this agreement shall automatically, and without any action on the part of any other party, be of no further force and effect, and the undersigned shall be automatically released from all obligations under this letter.
The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company, the Selling Shareholder and the Underwriters.
This agreement and any claim, controversy or dispute arising under or related to this agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
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| Very truly yours, | ||
| By: | ||
| Title: |
A-1
EXHIBIT B
SHAREHOLDER, OFFICER AND DIRECTOR
FORM OF LOCK-UP LETTER
_____________, 2023
Jefferies LLC
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
The undersigned understands that Jefferies LLC, as representative (the “Representative”) of the several Underwriters, proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with ADC Therapeutics SA, a société anonyme organized under the laws of Switzerland (or any successor thereto, the “Company”), and a certain shareholder of the Company (the “Selling Shareholder”), providing for the public offering (the “Public Offering”) by the several Underwriters, including the Representative (the “Underwriters”), of a number of common shares (the “Shares”), par value CHF 0.08 per share (the “Common Shares”), of the Company by the Selling Shareholder.
If there is only one Underwriter identified in Schedule II to the Underwriting Agreement, references to “Underwriters” and “several Underwriters” in this letter shall instead mean the Underwriter and related plural terms shall instead be read in the singular.
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representative on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 60 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of the Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:
| (a) | transactions relating to Common Shares or any security convertible into Common Shares acquired in open market transactions after the completion of the Public Offering; |
| (b) | transfers or dispositions of Common Shares or any security convertible into Common Shares as a bona fide gift or for bona fide estate planning purposes or to a charitable organization or educational institutional; |
| (c) | transfers or dispositions of Common Shares or any security convertible into Common Shares to any member of the immediate family of the undersigned, affiliate thereof, or any trust or trustee or beneficiary thereof for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; |
| (d) | transfers or dispositions of Common Shares or any security convertible into Common Shares to any corporation, partnership, limited liability company or other entity or affiliate of the undersigned or the immediate family of the undersigned; |
| (e) | transfers or dispositions of Common Shares or any security convertible into Common Shares (x) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned upon the death of the undersigned, or (y) by operation of law pursuant to a domestic order or negotiated divorce settlement; |
| (f) | transfers or dispositions of Common Shares or any security convertible into Common Shares to another corporation, member, partnership, limited liability company, trust or other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, or to an investment fund or other entity that controls or manages, or is under common control with, the undersigned, or distributions of Common Shares or other securities to partners, members, stockholders, beneficiaries or other equity holders of the undersigned; |
| (g) | transfers or dispositions of Common Shares or any security convertible into Common Shares to the Company in connection with the repurchase of such securities with respect to the termination of the undersigned's employment with the Company; |
| (h) | transfers or dispositions of Common Shares or any security convertible into Common Shares to the Company; |
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provided that in the case of any transfer, disposition or distribution (i) pursuant to clause (b), (c), (d) or (f), each transferee, donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) pursuant to clause (b), (c), (d), (e), (f) or (g), no public announcement or filing under Section 16(a) of the Exchange Act (or its foreign equivalent), reporting a reduction in beneficial ownership of Common Shares, shall be required or shall be voluntarily made during the Restricted Period (other than, in the case of a transfer or other disposition pursuant to clause (e), (g) or (h) above, any Form 4 or Form 5 required to be filed under the Exchange Act (or its foreign equivalent) if the undersigned is subject to Section 16 reporting with respect to the Company under the Exchange Act (or its foreign equivalent) and indicating by footnote disclosure or otherwise the nature of the transfer or disposition);
| (i) | transfers or dispositions (including through a “cashless” exercise or on a “net exercise” basis) of Common Shares or any security convertible into Common Shares to the Company or “sell to cover” transactions in the open market solely due as a result of the automatic vesting or settlement of such securities or in connection with the conversion of any convertible security into, or the exercise of any option or warrant for Common Shares (including to satisfy withholding obligations or the payment of taxes in connection therewith); provided that (i) any such Common Shares received by the undersigned shall be subject to the terms of this agreement and (ii) no filing under Section 16(a) of the Exchange Act (or its foreign equivalent) reporting a reduction in beneficial ownership of Common Shares shall be required or shall be voluntarily made during the Restricted Period; |
| (j) | transfers or dispositions of Common Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a) through (i) above, provided that any Common Shares shall be subject to the terms of this agreement; |
| (k) | any pledge or transfer by the undersigned (or any permitted transferee) of Common Shares or any security convertible into Common Shares pursuant to agreements governing indebtedness or commitments relating to indebtedness of the undersigned (or any permitted transferee) or its affiliates (other than the Company and its subsidiaries) in effect on the date hereof (and any refinancing or replacement thereof) and described in the Prospectus and any transfer upon foreclosure, provided that any required filing under Section 16(a) of the Exchange Act (or its foreign equivalent) reporting a reduction in beneficial ownership by the undersigned or any party (pledgor or pledgee) shall indicate by footnote disclosure or otherwise the nature of the transfer and if any filing is required to be made under Section 16(a) of the Exchange Act (or its foreign equivalent) during the Restricted Period, the undersigned shall provide the Representative prior written notice informing it of such report; |
| (l) | the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act (or its foreign equivalent) for the transfer of Common Shares, provided that (i) such plan does not provide for the transfer of Common |
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Shares during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act (or its foreign equivalent), if any, is required from or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Shares may be made under such plan during the Restricted Period;
| (m) | transfers or dispositions of Common Shares or any security convertible into Common Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Shares or any security convertible into Common Shares in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (m) shall not be applicable and the undersigned’s shares and other securities shall remain subject to the restrictions contained in this agreement; or |
| (n) | transfers or dispositions of Common Shares or any security convertible into Common Shares under a trading plan pursuant to Rule 10b5-1 under the Exchange Act (or its foreign equivalent) for the transfer or disposition of Common Shares or any security convertible into Common Shares that is existing as of the date hereof provided that to the extent a public announcement or filing under the Exchange Act (or its foreign equivalent), if any, is required of or voluntarily made by or on behalf of the undersigned, such announcement or filing shall include a statement to the effect that such dispositions were made pursuant to such plan. |
For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin, and “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold greater than 50% of the outstanding voting securities of the Company (or the surviving entity), provided that, for the avoidance of doubt, the Public Offering shall not constitute a Change of Control.
In addition, other than as permitted above, the undersigned agrees that, without the prior written consent of the Representative, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration with the Securities and Exchange Commission (or its foreign equivalent) of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the
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Company’s transfer agent and registrar against the transfer of the undersigned’s Common Shares except in compliance with the foregoing restrictions.
The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned with respect to the Public Offering of the Shares and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to the undersigned in connection with the Public Offering, the Underwriters are not making a recommendation to the undersigned to participate in the Public Offering or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
The undersigned understands that, if (i) the Representative, on the one hand, or the Company or the Selling Shareholder, on the other hand, informs the other in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Public Offering, (ii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the securities to be sold thereunder, (iii) the Registration Statement related to the Public Offering is withdrawn prior to execution of the Underwriting Agreement or (iv) the Underwriting Agreement is not executed on or before February 15, 2023, then, in each case, this agreement shall automatically, and without any action on the part of any other party, be of no further force and effect, and the undersigned shall be automatically released from all obligations under this letter.
The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company, the Selling Shareholder and the Underwriters.
This agreement and any claim, controversy or dispute arising under or related to this agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
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| Very truly yours, | ||
| (Name) | ||
| (Address) |
EXHIBIT C
FORM OF CERTIFICATE OF THE CHIEF FINANCIAL OFFICER
ADC THERAPEUTICS SA
CHIEF FINANCIAL OFFICER CERTIFICATE
_____________, 2023
Reference is hereby made to the Underwriting Agreement, dated , 2023 (the “Underwriting Agreement”), by and among ADC Therapeutics SA (the “Company”), the Selling Shareholder named on Schedule I thereto and Jefferies LLC, as representative of the several underwriters named on Schedule II thereto (the “Underwriters”). Capitalized terms used but not defined in this certificate have the meaning assigned to them in the Underwriting Agreement.
I am responsible for the financial accounting matters of the Company and am familiar with the accounting books and records and internal controls of the Company. To assist the Underwriters in conducting and documenting their investigation of the affairs of the Company, I, Jose “Pepe” Carmona, in my capacity as Chief Financial Officer of the Company and not in my individual capacity, do hereby certify as of the date hereof, pursuant to Section 6(l) of the Underwriting Agreement, that after reasonable inquiry and investigation by myself or members of my staff who are responsible for the Company’s financial and accounting matters:
1. I have read the items marked on the pages of the Company’s report on Form 6-K filed with the Securities and Exchange Commission on , 2023 attached as Exhibit A hereto and such items (i) are derived from the accounting books and records of the Company and (ii) fairly present, in all material respects, the financial performance or position of the Company as of and for the three month period (as applicable) ended December 31, 2022.
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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”), dated as of February 6, 2023, has been entered into by and among ADC Therapeutics SA, a Swiss stock corporation (société anonyme) (the “Company”), and Oaktree Fund Administration LLC, a Delaware limited liability company, OCM Strategic Credit Investments S.à r.l., 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 under the number B184440, OCM Strategic Credit Investments 2 S.à.r.l., 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 under the number B183876, OCM Strategic Credit Investments 3 S.à r.l., private limited liability company (société à responsabilité limitée) governed by the laws of the Grand Duchy of Luxembourg, Oaktree Gilead Investment Fund AIF (Delaware), L.P., a Delaware limited partnership, Oaktree Huntington-GCF Investment Fund (Direct Lending AIF), L.P., a Delaware limited partnership, Oaktree Specialty Lending Corporation, a Delaware corporation, and Pathway Strategic Credit Fund III, L.P., a Delaware limited partnership (each and together with any assignees in accordance with Section 9 hereof, a “Holder” and, collectively, the “Holders”). In consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Holders hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
(a) “Additional Filing Deadline” means, with respect to any Registration Statements that may be required pursuant to Section 2(a)(iii) or Section 3(a), (i) the tenth (10th) Business Day following the first date on which the applicable Registrable Securities may then be included in a Registration Statement if such Registration Statement is required to be filed because the SEC shall have notified the Company in writing that certain Registrable Securities were not eligible for inclusion in a previously filed Registration Statement, or (ii) if such additional Registration Statement is required for a reason other than as described in (i) above, the thirtieth (30th) day following the date on which the Company first knows that such additional Registration Statement is required.
(b) “Additional Registration Deadline” means, with respect to any additional Registration Statement(s) required to be filed pursuant to Section 2(a)(iii), the forty fifth (45th) day following the applicable Additional Filing Deadline.
(c) “Business Day” means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized or obligated by law or executive order to close; provided, however, for clarification, bank institutions shall not be deemed to be authorized or obligated by law or executive order to remain closed due to “stay at home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in the City of New York generally are open for use by customers on such day.
(d) “Common Shares” means common shares, nominal value CHF 0.08 per share, of the Company.
(e) “Exchange Act” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder, and any successor statute.
(f) “FINRA” means the Financial Industry Regulatory Authority, Inc. (or successor thereto).
(g) “Filing Deadline,” for the Demand Registration Statement required pursuant to Section 2(a)(i), shall mean the Demand Registration Filing Deadline, for each Registration Statement required pursuant to Section 2(a)(iii), shall mean the Additional Filing Deadline and for each Registration Statement (or post-effective amendment) filed pursuant to Section 3(a), shall mean the deadline therefor as set forth in Section 3(a).
(h) “Foreign Private Issuer” has the meaning set forth in Rule 405 of Regulation C under the Securities Act or any successor rule thereto.
(i) “Form S-1” means a Registration Statement on Form S-1, or if the Company is a Foreign Private Issuer, Form F-1, or in each case, any successor form of registration statement.
(j) “Form S-3” means a Registration Statement on Form S-3, or if the Company is a Foreign Private Issuer, Form F-3, or in each case, any successor form of registration statement.
(k) “Holder Loan Agreement” means that certain Credit and Security Agreement, dated as of April 27, 2020, by and among A.T. Holdings II Sàrl, a limited liability company existing under the laws of Switzerland, as the Borrower, the lenders party thereto and Oaktree Fund Administration, LLC, as Agent, and all amendments through the date hereof or as otherwise amended from time to time.
(l) “Holder Loan Collateral” means the Common Shares constituting “Pledged Shares” (as defined in the Swiss Security Documents (as defined in the Holder Loan Agreement)) and “Collateral” under the Holder Loan Agreement.
(m) “Holder Loan Collateral Trigger Event” means (i) any “Default” or “Event of Default” (each as defined in the Holder Loan Agreement) has occurred and (ii) the Holders either through the exercise of rights under the Holder Loan Agreement or through settlement or agreement with the borrower or obligors thereunder (including via a deed in lieu of foreclosure or other forbearance agreement or other similar agreement) become the direct or indirect owners or beneficial owners or recipients of or have a right to foreclose upon (whether through agreement or proceeding or any functional equivalent to obtain ownership of) Common Shares comprising all or a portion of Holder Loan Collateral, in whole or in part (whether immediately or from time to time).
(n) “Legal Counsel” means Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004-2498, Attention: Ari Blaut and Alan Fishman, email: blauta@sullcrom.com and fishmana@sullcrom.com.
(o) “Person” means and includes any natural person, partnership, joint venture, corporation, trust, limited liability company, limited company, joint stock company, unincorporated organization, government entity or any political subdivision or agency thereof, or any other entity.
(p) “Prospectus” means (i) any prospectus (preliminary or final) included in any Registration Statement, as may be amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in Rule 405 under the Securities Act relating to any offering of Registrable Securities pursuant to a Registration Statement.
(q) “Register,” “Registered,” and “Registration” refer to a registration effected by preparing and filing a Registration Statement or Statements in compliance with the Securities Act and pursuant to Rule 415, and such Registration Statement becoming effective under the Securities Act (whether automatic or declared effective by the United States Securities and Exchange Commission (the “SEC”)).
(r) “Registrable Securities,” for a given Registration, means Common Shares initially comprising all or a portion of Holder Loan Collateral (including any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to any of the foregoing) that have been acquired by a Holder following the occurrence of a Holder Loan Collateral Trigger Event; provided, however, “Registrable Securities” shall not include any securities that (i) have been sold pursuant to a Registration Statement or pursuant to Rule 144, (ii) are no longer held by a Holder, (iii) are no longer outstanding, or (iv) are outstanding on the date that is three (3) years following the initial effective date of the Registration Statement filed pursuant to Section 2(a)(i).
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(s) “Registration Deadline” shall mean, for purposes of any Registration Statement required pursuant to Section 2(a)(i), the date that is seventy-five (75) days after the applicable Filing Deadline, and with respect to any Registration Statement required pursuant to Section 2(a)(i) or Section 3(a), the Additional Registration Deadline. Any Registration Deadline (or any extension thereof) shall be automatically extended if the Company has, and continues to use, its commercially reasonable efforts to respond and resolve any comments to the Registration Statement received from the SEC. Notwithstanding the foregoing, at any time that the Company (i) is not a Foreign Private Issuer and (ii) is required to comply with Rule 3-01 of SEC Regulation S-X but is not eligible to rely upon paragraph (c) thereof, if a Registration Deadline would otherwise occur during the period beginning 45 days after the end of any fiscal year of the Company and ending on the date the Company files its Annual Report on Form 10-K for the previously completed fiscal year (the “Prior Year Annual Report”), the Registration Deadline shall be automatically extended until the Company files its Prior Year Annual Report, provided that the Company uses commercially reasonable efforts to file the Prior Year Annual Report as soon as practicable, and in no event shall such extension of a Registration Deadline extend past the due date for the applicable Prior Year Annual Report.
(t) “Registration Statement(s)” means any registration statement(s) of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, all amendments and supplements to such Registration Statement, including post-effective amendments, and all exhibits to, and all material incorporated by reference in, such Registration Statement.
(u) “Rule 144” means Rule 144 under the Securities Act or any successor rule providing for the resale of restricted securities.
(v) “Rule 415” means Rule 415 under the Securities Act or any successor rule providing for the offering of securities on a continuous basis.
(w) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute.
Section 2. Registration.
(a) Demand Registration.
(i) The Holders shall have the right to request (a “Demand Request”) that the Company file with the SEC a registration statement on Form S-3 (or, if Form S-3 is not then available, on Form S-1 or such other form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Holders, which consent shall not be unreasonably withheld, delayed or conditioned) covering the resale of all of the Registrable Securities then held by the Holders; provided that the Holders shall be limited to one Demand Request pursuant to this agreement. Subject to the provisions of Section 3(p), on or prior to the date (such date, the “Demand Registration Filing Deadline”) that is the later of (x) thirty (30) Business Days after the date of any Demand Request and (y) thirty (30) Business Days after the expiration of any restriction on the offer and sale of the Registrable Securities pursuant to any contractual arrangements between the Company and the Holders, the Company shall prepare and file with the SEC a Registration Statement (the “Demand Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on Form S-1 or such other form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Holders, which consent shall not be unreasonably withheld, delayed or conditioned) covering the resale of all of the Registrable Securities.
(ii) Subject to any SEC comments, any Registration Statement pursuant to this Section 2(a) shall provide for an offering of the Registrable Securities on a continuous basis pursuant to Rule 415 and include a “plan of distribution” approved by the holders of a majority-in-interest of the Registrable Securities to be included in such Registration Statement. No Holder shall be named as an “underwriter” in the Registration Statement without such Holder’s prior written consent; provided that notwithstanding any other provision in this Agreement, if despite the Company’s compliance with Section 3(n), the SEC or the Securities Act requires a Holder to be named as an “underwriter” in the Registration Statement and such Holder withholds written consent to be so named, the Company’s failure to fulfill its obligations under this Section 2(a) shall, solely as a result thereof, not constitute a violation of this Agreement. Each Registration Statement (and each amendment or supplement thereto, excluding any amendment or supplement to a Registration Statement that is substantially similar to the Company’s filings under the Exchange Act, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the approval, which shall not be unreasonably withheld, delayed or conditioned, of) the Holders and Legal Counsel (as defined below) prior to its filing or other submission.
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(iii) If for any reason, despite the Company’s use of its commercially reasonable efforts to include all of the Registrable Securities requested or required to be included in any Registration Statement filed pursuant to Section 2(a)(i) (and subject to Section 3(n) below), the SEC does not permit all such Registrable Securities to be included in such Registration Statement, or for any other reason any such Registrable Securities are not then included in a Registration Statement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement on Form S-3 (or, if Form S-3 is not then available, on Form S-1 or such other form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Holders, which consent shall not be unreasonably withheld, delayed or conditioned) covering the resale of all Registrable Securities requested or required to be included in such Registration Statement filed pursuant to Section 2(a)(i) and not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415.
(iv) Notwithstanding anything to the contrary in this Agreement, the rights described in Section 2(a)(i) shall not be available with respect to any Registrable Securities at such time as there is an effective Registration Statement available for the resale of the Registrable Securities.
(b) Notices. Each Holder acknowledges and agrees that, in the event the Company would be required by the terms of this Section 2 to provide notice to the Holders of the filing of any Registration Statement, the Company shall provide such notice only to Legal Counsel, unless the Holders have given prior written instructions to the contrary to the Company.
Section 3. Obligations of the Company. In connection with any registration of the Registrable Securities hereunder, the Company shall have the following obligations:
(a) The Company shall prepare promptly, and file with the SEC as soon as practicable after such registration obligation arises hereunder (but in no event later than the applicable Filing Deadline), such Registration Statements with respect to the Registrable Securities as provided in Section 2(a), and thereafter use its commercially reasonable efforts to cause each such Registration Statement relating to Registrable Securities to become effective as soon as possible after such filing and no later than the applicable Registration Deadline, and shall use its commercially reasonable efforts to keep the Registration Statement current and effective pursuant to Rule 415 at all times after its effective date until the earlier of (x) the date that is three (3) years following the initial effective date of such Registration Statement or (y) all Registrable Securities included in such Registration Statement no longer constitute Registrable Securities (such period, the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), except for information provided in writing by the Holders pursuant to Section 4(a) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading. If at any time following the filing of a Registration Statement when the Company is required to re-evaluate its Form S-3 eligibility and the Company determines that it is not eligible to register the Registrable Securities on Form S-3, the Company shall use its reasonable best efforts to (i) as promptly as practicable, if the Company is not eligible at such time to file a Registration Statement on Form S-3, post-effectively amend the Registration Statement to a Registration Statement on Form S-1, or file a new Registration Statement on Form S-1, covering all of the Registrable Securities, (ii) cause such post-effective amendment or Registration Statement declared effective by the SEC, and (iii) keep such Registration Statement effective during the Registration Period.
(b) The Company shall furnish to the Holders and Legal Counsel (i) promptly after the same is prepared and publicly distributed, publicly filed with the SEC or received by the Company, one copy of each Registration Statement and any amendment thereto (other than the Company’s filings under the Exchange Act and other than any amendment or supplement to a Registration Statement that is substantially similar to the Company’s filings under the Exchange Act), each preliminary prospectus and prospectus and each amendment or supplement thereto, and, each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought or intends to seek confidential treatment, which contains or reflects any material non-public information with respect to the Company or its securities), and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as a Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder; provided that the Company may provide any such copies in electronic form only. The Company will promptly notify the Holders by email of the effectiveness of each Registration Statement or any post-effective amendment thereto.
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(c) To the extent applicable, the Company will use commercially reasonable efforts to promptly respond to any and all comments received from the SEC with respect to any Registration Statement filed pursuant to this Agreement, with a view towards causing each Registration Statement or any amendment thereto to become effective (to the extent required, by declaration or ordering of effectiveness of such Registration Statement or amendment by the SEC) as soon as practicable, but in no event later than five (5) Business Days, following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review, in which case the Company shall file within two (2) Business Days a request for acceleration of effectiveness of such Registration Statement (to the extent required, by declaration or ordering of effectiveness, of such Registration Statement or amendment by the SEC) to a time and date not later than two (2) Business Days after the submission of such request. If required by Rule 424 (or successor thereto) under the Securities Act, no later than two (2) Business Days after the Registration Statement becomes effective, the Company shall file with the SEC the final prospectus included in the Registration Statement pursuant to Rule 424 (or successor thereto) under the Securities Act.
(d) The Company shall use its commercially reasonable efforts to (i) register and qualify, in any jurisdiction in the United States where registration and/or qualification is required, the Registrable Securities covered by the Registration Statements under such other securities or “blue sky” laws of such jurisdictions in the United States as the Holders shall reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this Section 3(d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction, except where the Company is then already required to be so qualified, already subject to taxation or required to consent to general service of process.
(e) As promptly as practicable after becoming aware of such event, the Company shall (i) notify the Holders that holds Registrable Securities of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) use its commercially reasonable efforts to promptly prepare a supplement or amendment to any Registration Statement to correct such untrue statement or omission, and (iii) deliver such number of copies of such supplement or amendment to the Holders as such Holders may reasonably request.
(f) The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order as promptly as reasonably practicable, and to notify the Holders that hold Registrable Securities covered by such Registration Statement of the issuance of such order and the resolution thereof, in each case as promptly as reasonably practicable.
(g) The Company shall permit Legal Counsel to review each Registration Statement and all amendments and supplements thereto (other than the Company’s filings under the Exchange Act and other than any amendment or supplement to a Registration Statement that is substantially similar to the Company’s filings under the Exchange Act), a reasonable period of time prior to their filing with the SEC (not less than four (4) Business Days) and not file any documents in a form to which Legal Counsel reasonably objects and will not request acceleration of such Registration Statement without prior notice to Legal Counsel; provided that notwithstanding the foregoing, in no event shall the Company be (i) required to file any document with the SEC which in the view of the Company or its counsel contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading or (ii) prohibited from filing any document with the SEC which the Company or its counsel reasonably believes to be required by law to be so filed.
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(h) The Company shall use its commercially reasonable efforts to cause all the Registrable Securities covered by each Registration Statement to be listed on the principal U.S. securities exchange on which securities of the same class or series issued by the Company are then listed.
(i) The Company shall provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities not later than the effective date of the initial Registration Statement.
(j) The Company shall cooperate with the Holders that hold Registrable Securities being offered to facilitate the timely crediting of the Registrable Securities sold pursuant to such Registration Statement to the applicable account (or accounts) with The Depository Trust Company through its DWAC system, in any such case as such Holders may reasonably request. Within five (5) Business Days after a Registration Statement which includes Registrable Securities becomes effective, the Company shall deliver, and, if required by the transfer agent, shall cause legal counsel selected by the Company to deliver, to the transfer agent for the Registrable Securities an appropriate instruction and an opinion of such counsel in the form required by the transfer agent in order to issue or transfer (as applicable) the Registrable Securities free of restrictive legends upon their sale pursuant to an effective Registration Statement. Each Holder agrees that (i) it will sell the Registrable Securities pursuant either to an effective Registration Statement or pursuant to Rule 144 or another exemption from registration under the Securities Act, (ii) if such Registrable Securities are sold pursuant to a Registration Statement, they will be sold while such Registration Statement is effective and available for resale of the Registrable Securities, in compliance with the plan of distribution set forth therein, and (iii) furnish to the Company and its counsel any certificates and other documents as reasonably requested by the Company or its counsel necessary for issuing instructions to the transfer agent or issuing an opinion of counsel regarding the issuance or transfer of the Registrable Securities. The Company and its counsel shall be entitled to rely on the foregoing agreement of the Holders.
(k) The Company shall not include any securities for its own account or the account of others (other than the Registrable Securities) in any Registration Statement.
(l) The Company shall comply in all material respects with all applicable laws related to a Registration Statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in connection therewith (including the Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC).
(m) If required by the FINRA Corporate Financing Department, the Company shall promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to any Registration Statement (an “Issuer Filing”), and pay the filing fee required by such Issuer Filing. The Company shall use its commercially reasonable efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement.
(n) If at any time the SEC advises the Company in writing that the offering of some or all of the Registrable Securities in a Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act, the Company shall use its commercially reasonable efforts to persuade the SEC that the offering contemplated by a Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and that each Holder is not an “underwriter.” Each Holder shall have the right to have their respective legal counsel be advised of, and consulted with regarding any meetings or discussions with the SEC regarding the SEC’s position and to comment or have their respective legal counsel comment on any written submission made to the SEC with respect to such matters. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 3(n), the SEC refuses to alter its position, the Company shall remove from the Registration Statement such portion of the Registrable Securities as the SEC requires in writing be removed therefrom.
(o) Subject to the limitations contained herein, the Company shall use commercially reasonable efforts to take all other reasonable actions arising out of its obligations under this Agreement and necessary to facilitate the disposition by the Holders of the Registrable Securities pursuant to a Registration Statement.
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(p) Notwithstanding anything to the contrary in this Agreement, the Company may postpone effecting a Registration or, at any time after the effective date of the applicable Registration Statement, the Company may suspend the use of any prospectus forming a part of such Registration Statement, if (i) the Board of Directors of the Company determines that any registration or offering of Registrable Securities should not be made or continued because it would materially and adversely interfere with any existing or potential material financing, acquisition, corporate reorganization, merger, share exchange or other transaction or event involving the Company or any of its subsidiaries or because the Company does not have appropriate financial statement of any acquired or to-be-acquired entities available for filing, or (ii) the Board of Directors of the Company determines that the Company would otherwise be required to disclose material non-public information concerning the Company, the disclosure of which is not otherwise required and which the Company has a bona fide business purpose for preserving in confidence (the period of such postponement or suspension, a “Grace Period”); provided that the Company shall (A) promptly notify the Holders in writing of the existence of the Grace Period (provided that in each notice the Company shall not disclose the content of any material non-public information to any Holder unless otherwise requested in writing by such Holder) and the date on which the Grace Period will begin, and (B) as soon as such date may be determined, promptly notify the Holders in writing of the date on which the Grace Period ends; and, provided further that (1) no Grace Period shall exceed sixty (60) consecutive days, (2) during any three hundred sixty five (365) day period, such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days, (3) the first day of any Grace Period must be at least sixty (60) days after the last day of any prior Grace Period, and (4) no Grace Period may postpone the effectuation of any Filing Deadline in respect of any Registration as to which the Registration Deadline has been otherwise extended pursuant to the last sentence of the definition thereof (each Grace Period that satisfies all of the requirements of this Section 3(p) being referred to as an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holders receive the notice referred to in clause (A) and shall end on and include the later of the date the Holders receive the notice referred to in clause (B) and the date referred to in such notice. The provisions of Section 3(a) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(e) with respect to the information giving rise thereto unless such material non-public information is no longer applicable.
Section 4. Obligations of the Holders. In connection with the registration of the Registrable Securities, the Holders shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company to enter into this agreement that the Holders shall have delivered to the Company an executed lock-up agreement in substantially the form attached hereto as Exhibit A and that such lock-up agreement shall be in full force and effect. If, during the Restricted Period (as such term is defined in the lock-up agreement attached hereto as Exhibit A), the Company launches and closes a bona fide underwritten equity primary financing resulting in at least $50,000,000 in net cash proceeds to the Company (after deducting customary underwriter commissions but before customary offering expenses), to the extent requested in writing by the Company, the Holders agree to enter into a customary 90-day lockup with respect to the shares underlying the Holder Loan Collateral, including, for the avoidance of doubt, Registrable Securities received in respect thereof, with the underwriters of such offering (which in any event shall be no less favorable to the Holders than the lock-up executed on or about the date hereof).
(b) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of the Holders that the Holders shall furnish to the Company in writing such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) Business Days prior to the first anticipated filing date of a Registration Statement, the Company shall notify the Holders of the information the Company requires from such Holder. Any such information shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) The Holders, by such Holders’ acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless a Holder has notified the Company in writing of such Holder’s election to exclude all of the Holder’s Registrable Securities from such Registration Statement.
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(d) The Holders agree that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e) or Section 3(f), the Holders will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e) or Section 3(f).
Section 5. Expenses of Registration. All reasonable expenses, including underwriting discounts and commissions or other charges of any broker-dealer acting on behalf of the Holders, shall be borne by the Holders. The Holders shall also reimburse the Company for all expenses reasonably incurred in connection with registrations, filings or qualifications pursuant to Section 2 or Section 3, including all registration, listing and qualification fees, printers and accounting fees, and the fees and disbursements of counsel for the Company.
Section 6. Indemnification. In the event any Registrable Securities are included in a Registration Statement under this Agreement:
(a) The Company will indemnify, hold harmless and defend (i) the Holders, (ii) the directors, officers, partners, managers, members, employees and agents of the Holders, and each Person who controls any Holder within the meaning of the Securities Act or the Exchange Act, if any, and (iii) the directors, officers, partners and employees of, and each Person who controls, any such underwriter within the meaning of the Securities Act or the Exchange Act, if any (each, an “Indemnified Person”), against any joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, “Claims”) to which any of them may become subject insofar as such Claims arise out of or are based upon (A) any untrue statement or alleged untrue statement of a material fact in any Registration Statement, or any amendment or supplement thereto, or any filing made under state securities laws as required hereby, or the omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein not misleading; (B) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, or any amendment or supplement thereto, or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were made, not misleading; or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities, and relating to any action required by or inaction by the Company in connection with the offer or sale of the Registrable Securities (the matters in the foregoing clauses (A) through (C) being, collectively, “Violations”). The Company shall reimburse the Indemnified Person, promptly as such expenses are incurred and are due and payable, for any reasonable and documented legal fees and other reasonable and documented expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a) shall not apply to a Claim arising out of or based upon a Violation to the extent that such Violation occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Indemnified Person expressly for use in connection with the preparation of such Registration Statement or related prospectus or any such amendment thereof or supplement thereto, or to any amounts paid in settlement of any Claim effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by any of the Holders pursuant to Section 9.
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(b) Promptly after receipt by an Indemnified Person under this Section 6 of notice of the commencement of any action (including any governmental action), such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section 6, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and the Indemnified Person, as the case may be; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the reasonable and documented fees and expenses to be paid by the Company, if, in the opinion of counsel for such Indemnified Person, the representation by such counsel of the Indemnified Person and the Company would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Company shall pay for only one separate legal counsel (in addition to one separate local counsel, if required) for the Indemnified Persons, and such legal counsel shall be selected by the Holders. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnified Person under this Section 6, except to the extent that the Company is actually prejudiced in its ability to defend such action, and shall not relieve the Company of any liability to the Indemnified Person otherwise than pursuant to this Section 6. The Company shall not, without the prior written consent of the Indemnified Persons, consent to entry of any judgment or enter into any settlement or other compromise with respect to any Claim in respect of which indemnification or contribution may be or has been sought hereunder (whether or not any such Indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Persons of a full release from all liability with respect to such Claim or which includes any admission as to fault or culpability on the part of any Indemnified Person. The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as any expense, loss, damage or liability is incurred and is due and payable.
(c) The Holders will indemnify, hold harmless and defend (i) the Company, and (ii) the directors, officers, partners, managers, members, employees and agents of the Company, if any (each, a “Company Indemnified Person”), against any Claims to which any of them may become subject insofar as such Claims arise out of or are based upon any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities, which occurs due to the inclusion by the Company in a Registration Statement or prospectus, or any amendment or supplement thereto, of false or misleading information about a Holder, where such information was furnished in writing to the Company by or on behalf of such Holder expressly for the purpose of inclusion in such Registration Statement or prospectus. Notwithstanding anything herein to the contrary, the indemnity agreement contained in this Section 6(c) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Holders, which consent shall not be unreasonably withheld, delayed or conditioned; and provided, further, however, that each Holder shall be liable under this Section 6(c) for only that amount of a Claim as does not exceed the net amount of proceeds received by such Holder as a result of the sale of Registrable Securities pursuant to such Registration Statement.
(d) Promptly after receipt by a Company Indemnified Person under this Section 6 of notice of the commencement of any action (including any governmental action), such Company Indemnified Person shall, if a Claim in respect thereof is to be made against the Holders under this Section 6, deliver to the Holders a written notice of the commencement thereof, and the Holders shall have the right to participate in, and, to the extent the Holders so desire, to assume control of the defense thereof with counsel mutually satisfactory to the Holders and such Company Indemnified Person. The Holders shall not, without the prior written consent of the Company, consent to entry of any judgment or enter into any settlement or other compromise with respect to any Claim in respect of which indemnification or contribution may be or has been sought by any Company Indemnified Person hereunder (whether or not any such Company Indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Company Indemnified Persons of a full release from all liability with respect to such Claim or which includes any admission as to fault or culpability on the part of any Company Indemnified Person.
Section 7. Contribution. If for any reason the indemnification provided for in Section 6(a) or Section 6(c) (as applicable) is unavailable to an Indemnified Person or Company Indemnified Person (as applicable) or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the Indemnified Person or Company Indemnified Person (as applicable) as a result of the Claim in such proportion as is appropriate to reflect the relative fault of the Indemnified Person or Company Indemnified Person (as applicable) and the indemnifying party (provided that the relative fault of any Company Indemnified Person shall be deemed to include the fault of all other Company Indemnified Persons), as well as any other relevant equitable considerations. No Person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any Person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of any Holder be greater in amount than the net amount of proceeds received by such Holder as a result of the sale of Registrable Securities giving rise to such contribution obligation pursuant to the applicable Registration Statement (net of the aggregate amount of any damages or other amounts such Holder has otherwise been required to pay (pursuant to Section 6(c) or otherwise) by reason of such Holder’s untrue or alleged untrue statement or omission or alleged omission).
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Section 8. Reports Under the Exchange Act. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Holders to sell securities of the Company to the public without registration, the Company agrees to, prior to the end of the Registration Period:
(a) make and keep public information available, as those terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
(c) promptly upon request, furnish to the Holders a written statement by the Company that it has complied with the reporting requirements of the Exchange Act as required for applicable provisions of Rule 144.
Section 9. Assignment. The rights under this Agreement shall be automatically assignable by each Holder to any transferee who is an affiliate of such Holder or an affiliate of Oaktree Capital Management L.P. with respect to all or any portion of the Registrable Securities if: (a) the Holder agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (b) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (i) the name and address of such transferee or assignee, and (ii) the securities with respect to which such registration rights are being transferred or assigned, and (c) at or before the time the Company receives the written notice contemplated in clause (b) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein as applicable to such Holder (including Exhibit A). Any assignment in accordance with the foregoing shall result in such person being a Holder for all purposes of this Agreement. In the event that the Company receives written notice from a Holder that it has transferred all or any portion of its Registrable Securities pursuant to this Section, the Company shall have up to ten (10) days to file any amendments or supplements necessary to keep a Registration Statement current, effective and available for the resale of all of the Registrable Securities pursuant to Rule 415; provided that the Company shall not be obligated to file more than one amendment or supplement to a Registration Statement or Prospectus pursuant to this Section 9 in any six-month period. The Company shall not assign this Agreement (or any rights or obligations hereunder) without the prior written consent of the holders of a majority-in-interest of the then-outstanding Registrable Securities.
Section 10. Amendment. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with written consent of the Company and the holders of a majority in interest of then-outstanding Registrable Securities. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each of the Holders and the Company.
Section 11. Miscellaneous.
(a) Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally or by courier (including a recognized overnight delivery service) or by electronic mail and shall be effective upon receipt, in each case addressed to a party. The addresses for such communications shall be:
If to the Company:
ADC Therapeutics SA
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
Attention: Legal Department
Phone: +41 21 653 02 00
Email: legal@adctherapeutics.com
with a copy to (which copy alone shall not constitute notice):
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Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attn: Deanna L. Kirkpatrick
Yasin Keshvargar
David Li
Phone: (212) 450-4000
Email: deanna.kirkpatrick@davispolk.com
yasin.keshvargar@davispolk.com
david.li@davispolk.com
If to the Holders:
Oaktree Capital Management L.P.
333 S. Grand Avenue, 28th Floor
Los Angeles, CA 90071
Attn: Aman Kumar
Email: AmKumar@oatktreecapital.com
With a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004-2498
Attn: Ari B. Blaut; Alan Fishman
Email: Blauta@sullcrom.com
fishman@sullcrom.com
Each party shall provide notice to the other party of any change in address, and any additional Holder shall provide its address for purposes hereof to the Company.
(b) Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
(c) All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York, borough of Manhattan (and, in each case, the applicable state and federal appeals courts sitting in the City of New York or, if not available or applicable, the State of New York). Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. The parties hereby waive all rights to a trial by jury. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
(d) This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.
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(e) Subject to the requirements of Section 9 hereof, this Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto, and the provisions of Section 6 and Section 7 hereof shall inure to the benefit of, and be enforceable by, each Indemnified Person and Company Indemnified Person (as applicable).
(f) The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(g) This Agreement and any amendments hereto may be executed and delivered in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when counterparts have been signed by each party hereto and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event that any signature to this Agreement or any amendment hereto is delivered by facsimile transmission, by e-mail delivery of a “.pdf” format data file or by other electronic means, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf” or other electronic signature page were an original thereof. No party hereto shall raise the use of a facsimile machine, e-mail delivery of a “.pdf” format data file or other electronic means to deliver a signature to this Agreement or any amendment hereto or the fact that such signature was transmitted or communicated through the use of a facsimile machine, e-mail delivery of a “.pdf” format data file or other electronic means as a defense to the formation or enforceability of a contract, and each party hereto forever waives any such defense.
(h) The parties hereto acknowledge that a breach by it of its obligations hereunder will cause irreparable harm to the non-breaching party hereto by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the parties hereto acknowledge that the remedy at law for breach of its obligations hereunder will be inadequate and agrees, in the event of a breach or threatened breach by any other party hereto of any of the provisions hereunder, that the non-breaching party hereto shall be entitled, in addition to all other available remedies in law or in equity, to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.
(i) The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
(j) In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
(k) There shall be no oral modifications or amendments to this Agreement. This Agreement may be modified or amended only in writing.
(l) The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder, and no provision of this Agreement is intended to confer any obligations on any Holder vis-à-vis any other Holder. Nothing contained herein, and no action taken by any Holder pursuant hereto, shall be deemed to constitute the Holder as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holder are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated herein.
[Signature page follows]
12
IN WITNESS WHEREOF, the undersigned Holders and the Company have caused this Registration Rights Agreement to be duly executed as of the date first written above.
|
COMPANY:
ADC THERAPEUTICS SA
| |||
| By: | /s/ Ameet Mallik | ||
| Name: | Ameet Mallik | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Registration Rights Agreement]
| HOLDERS: | ||
| Oaktree Fund Administration LLC | ||
| By: | Oaktree Capital Management, L.P. | |
| Its: | Managing Member | |
| By: | /s/ Mary Gallegly | ||
| Name: | Mary Gallegly | ||
| Title: | Managing Director | ||
| By: | /s/ Matthew Stewart | ||
| Name: | Matthew Stewart | ||
| Title: | Senior Vice President | ||
[Signature Page to Registration Rights Agreement]
| OCM STRATEGIC CREDIT INVESTMENTS S.À | |||
| R.L. | |||
| By: |
/s/ Martin Eckel | ||
| Name: | Martin Eckel | ||
| Title: | Manager | ||
| By: | /s/ Flora Verrecchia | ||
| Name: | Flora Verrecchia | ||
| Title: | Manager | ||
| OCM STRATEGIC CREDIT INVESTMENTS 2 | |||
| S.À R.L. | |||
| By: | /s/ Martin Eckel | ||
| Name: | Martin Eckel | ||
| Title: | Manager | ||
| By: | /s/ Flora Verrecchia | ||
| Name: | Flora Verrecchia | ||
| Title: | Manager | ||
| OCM STRATEGIC CREDIT INVESTMENTS 3 S.ÀR.L. | |||
| By: | /s/ Martin Eckel | ||
| Name: | Martin Eckel | ||
| Title: | Manager | ||
| By: | /s/ Flora Verrecchia | ||
| Name: | Flora Verrecchia | ||
| Title: | Manager | ||
[Signature Page to Registration Rights Agreement]
| OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. | ||
| By: | Oaktree Fund AIF Series, L.P. – Series T | |
| Its: | General Partner | |
| By: | Oaktree Fund GP AIF, LLC | |
| Its: | Managing Member | |
| By: | Oaktree Fund GP III, L.P. | |
| Its: | Managing Member | |
| By: | /s/ Mary Gallegly | ||
| Name: | Mary Gallegly | ||
| Title: | Authorized Signatory | ||
| By: | /s/ Matthew Stewart | ||
| Name: | Matthew Stewart | ||
| Title: | Authorized Signatory | ||
[Signature Page to Registration Rights Agreement]
| OAKTREE HUNTINGTON-GCF INVESTMENT FUND (DIRECT LENDING AIF), L.P. | ||
| By: | Oaktree Huntington-GCF Investment Fund (Direct Lending AIF) GP, L.P. | |
| Its: | General Partner | |
| By: | Oaktree Huntington-GCF Investment Fund (Direct Lending AIF) GP, LLC | |
| Its: | General Partner | |
| By: | Oaktree Fund GP III, L.P. | |
| Its: | Managing Member | |
| By: | /s/ Mary Gallegly | ||
| Name: | Mary Gallegly | ||
| Title: | Authorized Signatory | ||
| By: | /s/ Matthew Stewart | ||
| Name: | Matthew Stewart | ||
| Title: | Authorized Signatory | ||
[Signature Page to Registration Rights Agreement]
| OAKTREE SPECIALTY LENDING | ||
| CORPORATION | ||
| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Adviser | |
| By: | /s/ Mary Gallegly | ||
| Name: | Mary Gallegly | ||
| Title: | Managing Director | ||
| By: | /s/ Matthew Stewart | ||
| Name: | Matthew Stewart | ||
| Title: | Senior Vice President | ||
[Signature Page to Registration Rights Agreement]
| PATHWAY STRATEGIC CREDIT FUND III, LP | ||
| By: | PSCF III Management LLC, its General Partner | |
| By: | Pathway Capital Management, LP, its Sole Member | |
| By: | Pathway Capital Management GP, LLC, its General Partner | |
| By: | /s/ Wayne D. Smith | ||
| Name: | Wayne D. Smith | ||
| Title: | Managing Director | ||
[Signature Page to Registration Rights Agreement]
Exhibit A
FORM OF LOCK-UP LETTER
_____________, 2023
ADC Therapeutics SA
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
Ladies and Gentlemen:
Each of the undersigned (each, a “Shareholder” and together, the “Shareholders”) hereby agrees that, without the prior written consent of ADC Therapeutics SA (the “Company”), it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 365 days after the date of the final prospectus related to the Offering (as defined below) (the “Restricted Period”) (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Lock-Up Shares (as defined below) beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the Shareholder, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Shares or such other securities, in cash or otherwise. “Lock-Up Shares” shall be limited solely to the Company’s common shares, nominal value CHF 0.08 per share (the “Common Shares”) initially pledged pursuant to that certain Credit and Security Agreement, dated as of April 27, 2020, by and among A.T. Holdings II Sàrl, a limited liability company existing under the laws of Switzerland, as the Borrower, the lenders party thereto and Oaktree Fund Administration, LLC, as Agent, and all amendments through the date hereof or as otherwise amended from time to time (the “Credit Agreement”) as Pledged Shares and Collateral (as defined in the Credit Agreement) solely to the extent such shares are distributed or transferred to such Shareholder. For the avoidance of doubt, “Lock-Up Shares” shall not include (i) any Common Shares acquired by the Shareholders from any party other than A.T. Holdings II Sàrl, (ii) any securities beneficially owned by the Shareholders or any affiliate of the Shareholder convertible into or exercisable or exchangeable for Common Shares (including any warrants held by the Shareholders or any affiliates thereof as of the date hereof and any Common Shares underlying such warrants) or (iii) any Common Shares that are not Lock-up Shares held by any affiliate of a Shareholder.
The first sentence of the foregoing paragraph shall not apply to:
| (a) | transfers or dispositions of Lock-Up Shares or any security convertible into Lock-Up Shares to another corporation, member, partnership, limited liability company, trust or other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of a Shareholder, or to an investment fund or other entity that controls or manages, or is under common control with, a Shareholder, or distributions of Lock-Up Shares or other securities to limited or general partners, members, stockholders, beneficiaries or other equity holders of a Shareholder, provided that in the case of any such transfer, disposition or distribution (i) each transferee, donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) no public announcement or filing under Section 16(a) or Section 13 of the Exchange Act (or its foreign equivalent), reporting a reduction in beneficial ownership of Common Shares, shall be required or shall be voluntarily made during the Restricted Period; |
| (b) | transfers or dispositions of Lock-Up Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clause (a) above, provided that any Lock-Up Shares shall be subject to the terms of this agreement (to the extent applicable); or |
| (c) | transfers or dispositions of Lock-Up Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the Shareholders may agree to transfer, sell, tender or otherwise dispose of Lock-Up Shares in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (d) shall not be applicable and the Lock-Up Shares shall remain subject to the restrictions contained in this agreement. |
For purposes of this agreement, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to the Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold greater than 50% of the outstanding voting securities of the Company (or the surviving entity), provided that, for the avoidance of doubt, the Offering shall not constitute a Change of Control.
The Shareholders agree and consent to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Shareholders’ Lock-Up Shares except in compliance with the foregoing restrictions.
The Shareholders acknowledge and agree that the Company has not provided any recommendation or investment advice nor has the Company solicited any action from the Shareholders with respect to the Offering and the Shareholders have consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate.
The Shareholders understand that if a public offering relating to Common Shares held by A.T. Holdings II Sàrl (the “Offering”) is not closed and the net cash proceeds paid in accordance with that certain Settlement Term Sheet, dated as of February 2, 2023, by and among A.T. Holdings II Sarl, the Agent and Oaktree Capital Management, L.P., on or before February 16, 2023, then, in each case, this agreement shall automatically, and without any action on the part of any other party, be of no further force and effect, and the Shareholder shall be automatically released from all obligations under this letter.
The Shareholders understand that the Company is relying upon this agreement in order to enter into and meet its obligations under the Letter Agreement. The Company further understands that this agreement is irrevocable and shall be binding upon the Shareholders’ legal representatives, successors and assigns.
This agreement and any claim, controversy or dispute arising under or related to this agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
|
|
Very truly yours, | ||
| Oaktree Fund Administration LLC | |||
| By: | Oaktree Capital Management, L.P. | ||
| Its: Managing Member | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Lock-Up Agreement]
| OCM STRATEGIC CREDIT INVESTMENTS S.À | |||
| R.L. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
| OCM STRATEGIC CREDIT INVESTMENTS 2 | |||
| S.À R.L | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
| OCM STRATEGIC CREDIT INVESTMENTS 3 S.ÀR.L. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Lock-Up Agreement]
| OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P. | ||
| By: | Oaktree Fund AIF Series, L.P. – Series T | |
| Its: | General Partner | |
| By: | Oaktree Fund GP AIF, LLC | |
| Its: | Managing Member | |
| By: | Oaktree Fund GP III, L.P. | |
| Its: | Managing Member | |
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Lock-Up Agreement]
| OAKTREE HUNTINGTON-GCF INVESTMENT FUND (DIRECT LENDING AIF), L.P. | ||
| By: | Oaktree Huntington-GCF Investment Fund (Direct Lending AIF) GP, L.P. | |
| Its: | General Partner | |
| By: | Oaktree Huntington-GCF Investment Fund (Direct Lending AIF) GP, LLC | |
| Its: | General Partner | |
| By: |
Oaktree Fund GP III, L.P. | |
| Its: | Managing Member | |
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Lock-Up Agreement]
| OAKTREE SPECIALTY LENDING CORPORATION | ||
| By: | Oaktree Fund Advisors, LLC | |
| Its: | Investment Adviser | |
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
| PATHWAY STRATEGIC CREDIT FUND III, LP | ||
| By: | PSCF III Management LLC, its General Partner | |
| By: | Pathway Capital Management, LP, its Sole Member | |
| By: | Pathway Capital Management GP, LLC, its General Partner | |
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Lock-Up Agreement]
EXHIBIT 5.1
|
ADC Therapeutics SA Biopôle Route de la Corniche 3 B 1066 Epalinges Switzerland
|
Homburger AG Prime Tower Hardstrasse 201 CH-8005 Zürich
homburger.ch
|
| February 6, 2023 | |
| ADC Therapeutics SA – Prospectus Supplement to Prospectus Dated June 4, 2021 | |
Ladies and Gentlemen
We have acted as special Swiss counsel to ADC Therapeutics SA, a stock corporation incorporated under the laws of Switzerland (the Company), in connection with the filing of the prospectus supplement dated February 2, 2023 to the prospectus dated June 4, 2021 included in the registration statement (the Registration Statement) filed with the United States Securities and Exchange Commission (the SEC) for the purpose of registering under the United States Securities Act of 1933, as amended (the Securities Act), the offer and sale of 12,000,000 common shares of the Company, each with a nominal value of CHF 0.08 (the Common Shares). As such counsel, we have been requested to give our opinion as to certain legal matters of Swiss law.
Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Documents (as defined below).
| I. | Basis of Opinion |
This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. In the absence of explicit statutory law, we base our opinion solely on our independent professional judgment.
This opinion is also confined to:
| (i) | the matters stated herein and is not to be read as extending, by implication or otherwise, to any other matter, agreement or document referred to in any of the Documents (as defined below); and |
| (ii) | the documents listed below (collectively, the Documents). |
For purposes of this opinion we have not conducted any due diligence or similar investigation as to factual circumstances, which are or may be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For the purpose of giving this opinion, we have only examined originals or copies of the following documents:
| (a) | an electronic copy of the Registration Statement; |
| (b) | an electronic copy of a certified excerpt from the Commercial Register of the Canton of Vaud dated January 25, 2023, relating to the Company (the Excerpt); and |
| (c) | an electronic copy of the articles of association (statuts) of the Company dated November 1, 2022, notarized by a licensed notary of the Canton of Vaud on November 1, 2022 (the Articles). |
No documents have been reviewed by us in connection with this opinion other than those listed above. Accordingly, our opinion is limited to the Documents and their impact on the parties under Swiss law.
In this opinion, Swiss legal concepts are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws of Switzerland, for purposes of this opinion we have relied on the plain meaning of the words and expressions contained therein without regard to any import they may have under the relevant governing law.
| II. | Assumptions |
In rendering the opinion below, we have assumed the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without limitation, electronic copies) conform to the original; |
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents; |
| (c) | the Excerpt is correct, complete and up-to-date as of the date hereof and no changes have been made that should have been or should be reflected in the Articles or the Excerpt as of the date hereof; |
| (d) | each party to the Documents is a corporation or other legal entity duly organized and validly existing and in good standing (if applicable) under the laws of the jurisdiction of its incorporation and/or establishment and none of the parties to the Documents (other than the Company) has passed or, until the issuance of all Common Shares, will have passed a voluntary winding-up resolution; no petition has been, or, until the issuance of all Common Shares, will be presented or order made by a court for the winding-up, dissolution, bankruptcy or administration of any party (other than the Company); and no receiver, trustee in bankruptcy, administrator or similar officer has been or, until the issuance of all Common Shares, will have been appointed in relation to any of the parties (other than the Company) or any of their assets or revenues; |
| (e) | to the extent relevant for purposes of this opinion, any and all information contained in the Documents is and will be true, complete and accurate at all relevant times; |
| (f) | no laws (other than those of Switzerland) affect any of the conclusions stated in this opinion; |
| (g) | all authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory Swiss law applicable to the Company or the Articles, and other requirements for the filing of the Registration Statement or for any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken by the Company in the Registration Statement have been duly obtained or fulfilled in due time and are and will remain in full force and effect, and any related conditions to which the parties thereto are subject have been satisfied. |
| III. | Opinion |
Based on the foregoing assumptions and subject to the qualifications set out below, we express the following opinion:
| 1. | Based on the Excerpt, the Common Shares are validly issued, fully paid as to their nominal value and non-assessable. |
| IV. | Qualifications |
The above opinions are subject to the following qualifications:
| (a) | The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any laws other than the laws of Switzerland. Accordingly, we are opining herein as to Swiss law only and we express no opinion with respect to the applicability or the effect of the laws of any other jurisdiction to or on the matters covered herein. |
| (b) | The exercise of voting rights and rights related thereto with respect to any Common Shares is only permissible after registration in the Company's share register as a shareholder with voting rights in accordance with the provisions of, and subject to the limitations provided in, the Articles. |
| (c) | We express no opinion as to whether the Registration Statement is accurate, true, correct, complete or not misleading. In particular, and without limitation to the foregoing, we express no opinion on whether the Registration Statement provides sufficient information for investors to reach an informed assessment of the Company, any companies within the Company's consolidation perimeter and the Common Shares. |
| (d) | We express no opinion as to regulatory matters or as to any commercial, accounting, calculating, auditing or other non-legal matter. |
We have issued this opinion as of the date hereof and we assume no obligation to advise you of any changes in fact or in law that are made or brought to our attention hereafter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to our name under the caption "Legal Matters" in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is governed by and shall be construed in accordance with the laws of Switzerland.
Sincerely yours
/s/ Daniel Häusermann
Homburger AG
Daniel Häusermann
EXHIBIT 99.1
ADC Therapeutics SA
Biopôle
Route de la Corniche 3B
1066 Epalinges
Switzerland
February 2, 2023
A.T. Holdings II Sàrl
Ritter House
P.O. Box 4041
Wickhams Cay II
Road Town, Tortola, BVI VG1110
This letter agreement (the “Letter Agreement”) is entered into between ADC Therapeutics SA, a société anonyme domiciled in Epalinges, Switzerland, and organized under the laws of Switzerland (the “Company”) and A.T. Holdings II Sàrl, a limited liability corporation (société à responsabilité limitée) organized under the laws of Switzerland (the “Shareholder”).
WHEREAS, the Shareholder intends to sell at least 12 million common shares, nominal value CHF 0.08 per share, of the Company (the “Auven Shares”) in an underwritten, registered direct offering led by Jefferies LLC (the “Lead Underwriter”) pursuant to an underwriting agreement to be entered into with the Lead Underwriter (the “Underwriting Agreement”) and registered with the United States Securities and Exchange Commission (the “Offering”), preceded by a wall cross of select investors;
WHEREAS, in connection with the Offering, the Shareholder desires the Company’s cooperation and support in respect of the registration, marketing and selling of the Auven Shares;
WHEREAS, the parties hereto desire to enter into this Letter Agreement to govern certain of their rights, duties and obligations in connection with the Offering; and
NOW, THEREFORE, to induce the Company to enter into this Letter Agreement and in consideration of the covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Company Cooperation. Solely in connection with the Offering, the Company shall use commercially reasonable efforts to effect the registration of the Auven Shares by means of the filing of a prospectus supplement (the “Prospectus”) to the prospectus contained in the Company’s existing, effective shelf registration statement on Form F-3 ASR (File No.: 333-256807) (the “Registration Statement”). In addition, in connection with the Offering:
(a) The Company shall (i) cause a prospectus supplement to be filed pursuant to Rule 424 under the Securities Act of 1933 (the “Securities Act”) and (ii) comply with the provisions of the Securities Act with respect to the disposition of the Auven Shares in the Offering as presented in the Prospectus by the Shareholder.
(b) The Company shall furnish to the Shareholder and its legal counsel such number of copies of the Prospectus and all amendments and supplements thereto and such other documents as the Shareholder may reasonably request in order to facilitate the disposition of the Auven Shares; provided that the Company may provide any such copies in electronic form only.
(c) Following the commencement of the Offering and through the closing of the Offering, as promptly as practicable after becoming aware of such event, the Company shall (i) notify the Shareholder of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) use its commercially reasonable
efforts to promptly prepare a supplement or amendment to any Registration Statement to correct such untrue statement or omission, and (iii) deliver such number of copies of such supplement or amendment to the Shareholder as the Shareholder may reasonably request.
(d) The Company shall use its commercially reasonable efforts during the Offering to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order as promptly as reasonably practicable, and to notify each the Shareholder of the issuance of such order and the resolution thereof, in each case as promptly as reasonably practicable.
(e) The Company shall permit legal counsel of the Shareholder to review the Prospectus a reasonable period of time prior to its filing with the U.S. Securities and Exchange Commission (the “SEC”) and not file any documents in a form to which the Shareholder’s legal counsel reasonably objects; provided that notwithstanding the foregoing, in no event shall the Company be (i) required to file any document with the SEC which in the view of the Company or its counsel contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make any statement therein not misleading or (ii) prohibited from filing any document with the SEC which the Company or its counsel reasonably believes to be required by law to be so filed.
(f) In connection with the Offering, the Company and the Shareholder shall enter into customary agreements (including an underwriting agreement in customary form) and take such all other actions as are reasonably required in order to expedite or facilitate the disposition of the Auven Shares in the Offering, including reasonable management participation in the marketing of the Offering.
Section 2. Shareholder Cooperation. In connection with the Offering:
(a) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Letter Agreement with respect to the Auven Shares that the Shareholder shall furnish to the Company such information regarding itself and the Auven Shares as shall be reasonably required to effect the registration of the Auven Shares and shall execute such documents in connection with such registration as the Company may reasonably request. The Company shall notify the Shareholder of the information the Company requires from the Shareholder. Any such information furnished in writing to the Company by or on behalf of the Shareholder expressly for inclusion in the Prospectus or any free writing prospectus shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(b) The Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 1(c), the Shareholder will immediately discontinue disposition of the Auven Shares until the Shareholder’s receipt of the copies of the supplemented or amended prospectus.
(c) Prior to any wall cross or confidential marketing in connection with the Offering, the Shareholder shall, and shall cause the Lead Underwriter, to take commercially reasonable efforts to consult with the Company as to the identity of any proposed investors to participate in the Offering. The Shareholder agrees and acknowledges that no potential investors in the Offering may be contacted for the purpose of participating in the Offering by the Shareholder, or its agents, including the Lead Underwriter, without the Company and the Shareholder agreeing on a list of investors and only such investors shall be contacted. The Company shall have the right to indicate those investors who are new or unknown to the Company with which the Company will need a meeting ahead of the Shareholder determining whether such investors will receive an allocation; provided that the Company shall not be entitled to an in-person meeting if any such new or unknown investor is available for a meeting by telephone, internet, video, Zoom or any other means of technological communication, which such other means of technological communication shall, in addition to an in-person meeting, constitute a “meeting” for purposes of this Section 2(c). If after any such meeting, the Company does not approve of such investor(s) (such approval not to be unreasonably withheld), the Shareholder agrees that each such investor(s) shall not receive an allocation of Auven Shares when the Shareholder, in consultation with the Lead Underwriter, determines a final allocation list. Subject to the foregoing sentence, the Company agrees and acknowledges that the Shareholder will determine the final allocation of Auven Shares in consultation with the Lead Underwriter and that no persons other the Lead Underwriter and the Shareholder will be authorized to speak with investors about allocations. The Company shall have the right to make recommendations with respect to any such allocations.
Section 3. Lock-up Agreement. (i) The Shareholder hereby agrees that, without the prior written consent of the Company, it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 365 days after the date of the final prospectus related to the Offering (the “Restricted Period”) (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any common shares, nominal value CHF 0.08 per share (the “Common Shares”) beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the Shareholder or any other securities so owned convertible into or exercisable or exchangeable for Common Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:
| (a) | transfers or dispositions of Common Shares or any security convertible into Common Shares to another corporation, member, partnership, limited liability company, trust or other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of the Shareholder or to an investment fund or other entity that controls or manages, or is under common control with, the Shareholder; |
| (b) | transfers or distributions of Common Shares or other securities to partners, members, stockholders, beneficiaries or other equity holders of the Shareholder or any equity holders of any subsidiary of the Shareholder (other than the Shareholder or any affiliate of the Shareholder); |
| (c) | sales of Common Shares to the Lead Underwriter (or any other underwriters in the Offering) pursuant to the terms of the Underwriting Agreement; |
provided that in the case of any transfer, disposition or distribution (i) pursuant to clause (a), each transferee shall sign and deliver a lock-up letter substantially in the form of this Section 3, (ii) pursuant to clause (b), each transferee or distributee shall sign and deliver a lock-up letter substantially in the form attached as Exhibit A and (iii) pursuant to clause (a), (b) or (c), no public announcement or filing under Section 16(a) or Section 13 of the Exchange Act (or its foreign equivalent), reporting a reduction in beneficial ownership of Common Shares, shall be required or shall be voluntarily made during the Restricted Period, other than any Schedule 13D, Form 4 or Form 5 that is required to be filed under the Exchange Act (or its foreign equivalent) that indicates by footnote disclosure or otherwise the nature of the transfer or disposition, including, in the case of clause (a) or (b), that each transferee or distribute has signed and delivered a lock-up letter substantially in the form of this Section 3 or attached as Exhibit A, as applicable;
| (d) | transfers or dispositions of Common Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a) or (b) above, provided that any Common Shares shall be subject to the terms of this Letter Agreement; |
| (e) | the pledge or transfer by the Shareholder of Common Shares or any security convertible into Common Shares to, and pursuant to the Holder Loan Agreement (as defined below) entered into with, Oaktree Fund Administration LLC (“Oaktree”), as agent on behalf of the lenders thereto, governing indebtedness or commitments relating to indebtedness of the Shareholder or its affiliates (other than the Company and its subsidiaries) and of which the Company has been provided a copy, any pledge or transfer by the Shareholder or its affiliates pursuant to any agreements with Oaktree governing indebtedness or commitments relating to indebtedness entered into for the purpose of refinancing any indebtedness under the Holder Loan Agreement, and any transfer upon foreclosure pursuant to such agreements or commitments, provided that any required filing under Section 16(a) or Section 13 of the Exchange Act (or its foreign equivalent) reporting a reduction in beneficial ownership by the Shareholder or any party (pledgor or pledgee) shall indicate by footnote disclosure or otherwise (i) the nature of the transfer, and (ii) that Oaktree has entered into a 365-day lock-up agreement with the Company relating to any Common Shares or any security convertible into Common Shares beneficially owned by Oaktree, and if any filing is required to be made under Section 13 or Section |
16(a) of the Exchange Act (or its foreign equivalent) during the Restricted Period, the Shareholder shall provide the Company prior written notice informing it of such report;
| (f) | transfers or dispositions of Common Shares or any security convertible into Common Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the Shareholder may agree to transfer, sell, tender or otherwise dispose of Common Shares or any security convertible into Common Shares in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (f) shall not be applicable and the Shareholder’s shares and other securities shall remain subject to the restrictions contained in this Letter Agreement. |
For purposes of this Letter Agreement, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to the Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold greater than 50% of the outstanding voting securities of the Company (or the surviving entity), provided that, for the avoidance of doubt, the Offering shall not constitute a Change of Control.
(ii) Other than as permitted above, the Shareholder agrees that, without the prior written consent of the Company, it will not, during the Restricted Period, exercise any right with respect to the registration with the Securities and Exchange Commission (or its foreign equivalent) of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares. The Shareholder also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Shareholder’s Common Shares except in compliance with the foregoing restrictions.
(iii) The Shareholder acknowledges and agrees that the Company has not provided any recommendation or investment advice nor has the Company solicited any action from the Shareholder with respect to the Offering and the Shareholder has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate.
(iv) If, during the Restricted Period, the Company launches and closes a bona fide underwritten equity primary financing of at least $50,000,000 in net proceeds (after deducting underwriter commissions but before offering expenses), the Shareholder agrees to enter into a customary 90-day lockup with the underwriters of such offering.
Section 4. Expenses. The Shareholder shall pay all of the reasonable fees and expenses, including underwriting discounts and commissions or other charges of any broker-dealer acting on behalf of the Shareholder. The Shareholder agrees to reimburse the Company for expenses incurred before or after the date of this Letter Agreement related to requests from the Shareholder and review processes at the Company and the registration, marketing or selling of the Auven Shares through the closing of the Offering, including (i) reasonable fees and disbursements of counsels for the Company, (ii) customary transaction fees and expenses (SEC registration, auditor comfort letters, FINRA review, financial printing, transfer agent), (iii) all other out-of-pocket and documented costs and expenses incurred by the Company or its officers in connection therewith and (iv) Swiss value-added tax that the Company may have to add to such reimbursements; provided the total amount that the Shareholder shall be obligated to reimburse the Company shall not exceed $650,000 (plus any SEC registration fees and Swiss VAT) payable at closing of the Offering. In the event that the Offering is not consummated, the total amount that the Shareholder shall be obligated to reimburse the Company shall not exceed $475,000 (plus any SEC registration fees and Swiss VAT).
Section 5. Indemnification. (a) The Company will indemnify, hold harmless and defend the Shareholder and its directors and officers (each, an “Indemnified Person”), against any joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, “Claims”) to which any of them may become subject insofar as such Claims arise out of or are based upon (A) any untrue statement or alleged untrue
statement of a material fact in any Registration Statement, or any amendment or supplement thereto, or any filing made under state securities laws as required hereby, or the omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein not misleading; (B) any untrue statement or alleged untrue statement of a material fact contained in the prospectus, or any amendment or supplement thereto, or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances under which the statements therein were made, not misleading; or (C) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the Offering (the matters in the foregoing clauses (A) through (C) being, collectively, “Violations”). The Company shall reimburse the Indemnified Person, promptly as such expenses are incurred and are due and payable, for any reasonable and documented legal fees and other reasonable and documented expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 5 shall not apply to a Claim arising out of or based upon a Violation to the extent that such Violation occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Indemnified Person expressly for use in connection with the preparation of any such amendment or supplement to the prospectus contained in the Registration Statement, or to any amounts paid in settlement of any Claim effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive any transfer of the Auven Shares by the Shareholder.
(b) Promptly after receipt by an Indemnified Person under this Section 5 of notice of the commencement of any action (including any governmental action), such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section 5, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and the Indemnified Person, as the case may be; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the reasonable and documented fees and expenses to be paid by the Company, if, in the opinion of counsel for such Indemnified Person, the representation by such counsel of the Indemnified Person and the Company would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Company shall pay for only one separate legal counsel (in addition to one separate local counsel, if required) for the Indemnified Persons, and such legal counsel shall be selected by the Shareholder. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnified Person under this Section 5, except to the extent that the Company is actually prejudiced in its ability to defend such action, and shall not relieve the Company of any liability to the Indemnified Person otherwise than pursuant to this Section 5.
(c) The Shareholder will indemnify, hold harmless and defend the Company and its directors, officers, employees and agents (each, a “Company Indemnified Person”), against any Claims to which any of them may become subject insofar as: (i) such Claims arise out of or are based upon any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the Offering, which occurs due to the inclusion by the Company in a Registration Statement or prospectus, or any amendment or supplement thereto, or any free writing prospectus relating to the Offering of false or misleading information about the Shareholder, where such information was furnished in writing to the Company by or on behalf of the Shareholder expressly for the purpose of inclusion in such Registration Statement, prospectus or free writing prospectus or (ii) such Claims are caused by, relate to or arise from any third-party claims arising primarily from a default by the Shareholder under the Holder Loan Agreement (as defined below) or any other “Financing Document” (as defined in the Holder Loan Agreement), any other exercise of rights or remedies thereunder and/or any action required by, or inaction by, the Shareholder and/or any other exercise of rights or remedies in connection with the Holder Loan Agreement (which, for the avoidance of doubt, does not impact the Company’s indemnification obligations hereunder), other than claims that were caused by or resulted from the bad faith, gross negligence, willful misconduct or fraud of the Company Indemnified Person and to the extent that a court of competent jurisdiction in a final judgment from which no appeal can be made determines, or the Company Indemnified Person acknowledges, that such claim was caused by or resulted from the bad faith, gross negligence, willful misconduct or fraud of the Company Indemnified Person. For purposes of this Letter Agreement, the term “Holder Loan Agreement” means that certain Credit and Security Agreement, dated as of April 27, 2020,
by and among A.T. Holdings II Sàrl, a limited liability company existing under the laws of Switzerland, as the Borrower, the lenders party thereto and Oaktree Fund Administration LLC (or its affiliate), as Agent, and all amendments through the date hereof or as otherwise amended from time to time.
Notwithstanding anything herein to the contrary, the indemnity agreement contained in this Section 5 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Shareholder, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing sentence, if at any time a Company Indemnified Person shall have requested the Shareholder to reimburse the Company Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Shareholder agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such the Shareholder of the aforesaid request and (ii) the Shareholder shall not have reimbursed the Company Indemnified Person in accordance with such request prior to the date of such settlement. The Shareholder shall not, without the prior written consent of the Company Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such Company Indemnified Person, unless such settlement includes an unconditional release of such Company Indemnified Person from all liability on claims that are the subject matter of such proceeding.
(d) Promptly after receipt by a Company Indemnified Person under this Section 5 of notice of the commencement of any action (including any governmental action), such Company Indemnified Person shall, if a Claim in respect thereof is to be made against the Shareholder under this Section 5, deliver to the Shareholder a written notice of the commencement thereof, and the Shareholder shall have the right to participate in, and, to the extent the Shareholder so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Shareholder and such Company Indemnified Person. The Shareholder shall not, without the prior written consent of the Company, consent to entry of any judgment or enter into any settlement or other compromise with respect to any Claim in respect of which indemnification or contribution may be or has been sought by any Company Indemnified Person hereunder (whether or not any such Company Indemnified Person is an actual or potential party to such action or claim) which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Company Indemnified Persons of a full release from all liability with respect to such Claim or which includes any admission as to fault or culpability on the part of any Company Indemnified Person.
Section 6. Contribution. If for any reason the indemnification provided for in Section 5(a) or Section 5(c) (as applicable) is unavailable to an Indemnified Person or Company Indemnified Person (as applicable) or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the Indemnified Person or Company Indemnified Person (as applicable) as a result of the Claim in such proportion as is appropriate to reflect the relative fault of the Indemnified Person or Company Indemnified Person (as applicable) and the indemnifying party (provided that the relative fault of any Company Indemnified Person shall be deemed to include the fault of all other Company Indemnified Persons), as well as any other relevant equitable considerations. No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any person not guilty of such fraudulent misrepresentation.
Section 7. Term Sheet and Settlement Agreement. Prior to the launch of the Offering, the Shareholder shall provide a draft copy of the term sheet between the Shareholder and Oaktree in nearly final form relating to the Holder Loan Agreement (the “Term Sheet”). The Shareholder agrees to provide the fully-executed settlement agreement as soon as practicable subsequent to the closing of the Offering.
Section 8. Public Disclosures. The Shareholder shall provide the Company with a reasonable opportunity to review and comment on any press releases or other public disclosures relating to the Offering (including amendments filed by the Shareholder on Schedule 13D or 13G or other required public announcements in connection with the Offering).
Section 9. Termination. This Letter Agreement may be terminated at any time prior to the closing of the Offering by mutual written agreement of the Company and the Shareholder or by either the Company or the Shareholder if the closing of the Offering has not occurred on or before February 16, 2023 (the “Outside Date”); provided, however, that no party whose default under this Letter Agreement has caused the failure of the Closing to
occur by such time shall have the right to terminate pursuant to this Section 9; provided further, that the provisions of Sections 4, 5 and 6 shall survive the termination or cancellation of this Letter Agreement.
Section 10. Binding Effect; Assignability; Benefit. This Letter Agreement is solely for the benefit of the parties to this Letter Agreement, and will not be assignable by any party without the prior written consent of each other party; provided, that the terms and provisions hereof shall inure to the benefit of the Company’s permitted successors or assigns and shall be binding upon any successor or assign of the Shareholder. At such time that the Shareholder ceases to beneficially own any Equity Securities, the Shareholder shall cease to be bound by the terms hereof.
Section 11. Waiver; Amendment. No provision of this Letter Agreement may be amended, waived or otherwise modified except by an instrument in writing executed by the Company and the Shareholder. In addition, any party may waive any provision of this Letter Agreement with respect to itself by an instrument in writing executed by the party against whom the waiver is to be effective.
Section 12. Governing Law. This Letter Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflicts of laws rules of such state.
Section 13. Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Letter Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Southern District of New York or any New York State court sitting in New York City, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any case of action arising out of this Letter Agreement shall be deemed to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Section 14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15. Specific Enforcement. Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened breach of this Letter Agreement would be inadequate and, in recognition of this fact, any party to this Letter Agreement, without posting any bond, and in addition to all other remedies that may be available, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available.
Section 16. Counterparts; Effectiveness. This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Letter Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Letter Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Delivery of a signed counterpart of this Letter Agreement by e-mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or facsimile transmission shall constitute valid and sufficient delivery thereof. The headings of the Sections of this Letter Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Letter Agreement.
Section 17. Entire Agreement. This Letter Agreement constitutes the entire agreement among the parties hereto and supersede all prior and contemporaneous agreements and understandings, both oral and written, among the parties hereto with respect to the subject matter hereof and thereof.
Section 18. Severability. If any term, provision, covenant or restriction of this Letter Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Letter Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Letter Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Letter Agreement by signing in the space provided below.
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ADC Therapeutics SA
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| By: | /s/ Ameet Mallik |
| Name: Ameet Mallik | |
| Title: Chief Executive Officer | |
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a.t. holdings ii sÀRL
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| By: | /s/ Stephen Evans-Freke |
| Name: Stephen Evans-Freke | |
| Title: Managing Director | |
Exhibit A
The undersigned hereby agrees that, without the prior written consent of ADC Therapeutics (the “Company”), it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending [●], 2024 (the “Restricted Period”)1 (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any of the Company’s common shares, nominal value CHF 0.08 per share (the “Common Shares”) beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the Shareholder or any other securities so owned convertible into or exercisable or exchangeable for Common Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to:
| (a) | transactions relating to Common Shares or any security convertible into Common Shares acquired in open market transactions after the date hereof; |
| (b) | transfers or dispositions of Common Shares or any security convertible into Common Shares as a bona fide gift or for bona fide estate planning purposes or to a charitable organization or educational institution; |
| (c) | transfers or dispositions of Common Shares or any security convertible into Common Shares to any member of the immediate family of the undersigned, affiliate thereof, or any trust or trustee or beneficiary thereof for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; |
| (d) | transfers or dispositions of Common Shares or any security convertible into Common Shares to any corporation, partnership, limited liability company or other entity or affiliate of the undersigned or the immediate family of the undersigned; |
| (e) | transfers or dispositions of Common Shares or any security convertible into Common Shares (x) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned upon the death of the undersigned, or (y) by operation of law pursuant to a domestic order or negotiated divorce settlement; |
| (f) | transfers or dispositions of Common Shares or any security convertible into Common Shares to another corporation, member, partnership, limited liability company, trust or other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, or to an investment fund or other entity that controls or manages, or is under common control with, the undersigned, or distributions of Common Shares or other securities to partners, members, stockholders, beneficiaries or other equity holders of the undersigned; |
provided that in the case of any transfer, disposition or distribution (i) pursuant to clause (b), (c), (d) or (f), each transferee, donee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) pursuant to clause (b), (c), (d), (e) or (f), no public announcement or filing under Section 16(a) of the Exchange Act (or its foreign equivalent), reporting a reduction in beneficial ownership of Common Shares, shall be required or shall be voluntarily made during the Restricted Period (other than, in the case of a transfer or other disposition pursuant to clause (e) above, any Form 4 or Form 5 required to be filed under the Exchange Act (or its foreign equivalent) if the undersigned is subject to Section 16 reporting with respect to the Company under the Exchange Act (or its foreign equivalent) and indicating by footnote disclosure or otherwise the nature of the transfer or disposition);
1 The date shall be 365 days from the date of the final prospectus relating to the Offering.
| (g) | transfers or dispositions of Common Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (b) through (f) above, provided that any Common Shares shall be subject to the terms of this agreement; |
| (h) | transfers or dispositions of Common Shares or any security convertible into Common Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Shares or any security convertible into Common Shares in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (o) shall not be applicable and the undersigned’s shares and other securities shall remain subject to the restrictions contained in this agreement. |
For purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin, and “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to the Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold greater than 50% of the outstanding voting securities of the Company (or the surviving entity).
In addition, other than as permitted above, the undersigned agrees that, without the prior written consent of the Company, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration with the Securities and Exchange Commission (or its foreign equivalent) of any Common Shares or any security convertible into or exercisable or exchangeable for Common Shares. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Common Shares except in compliance with the foregoing restrictions.
This agreement and any claim, controversy or dispute arising under or related to this agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.