Niagen Bioscience, Inc S-3, filed Jun 12, 2020
Niagen Bioscience, Inc. (NAGE)
S-3
2020-06-12
View Original
Added on
October 25, 2026
As filed with the United States Securities and Exchange Commission
on June 12, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ChromaDex Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or
organization)
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26-2940963
(I.R.S. Employer Identification Number)
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10900 Wilshire Blvd., Suite 600
Los Angeles, California 90024
(310) 388-6706
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Robert Fried
Chief Executive Officer
10900 Wilshire Blvd., Suite 600
Los Angeles, California 90024
(310) 388-6706
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
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Thomas A. Coll
Matthew T. Browne
Cooley LLP
4401 Eastgate Mall
San Diego, CA 92121
(858) 550-6000
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Kevin M. Farr
Chief Financial Officer
10900 Wilshire Blvd., Suite 600
Los Angeles, California 90024
(310) 388-6706
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From time to time after the effective date of this Registration
Statement
(Approximate
date of commencement of proposed sale to the public)
If the
only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If any
of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. ☒
If this
Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ☐
If this
Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Securities and Exchange
Commission pursuant to Rule 462(e) under the Securities
Act, check the following box. ☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the
following box. ☐
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☒
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Non-accelerated
filer ☐
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be
registered
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Amount to be
Registered
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Proposed
Maximum
Offering
Price
per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee(1)
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Common Stock, par value $0.001 per
share
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(2)
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(3)
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(3)
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—
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Debt Securities
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(2)
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(3)
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(3)
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—
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Warrants
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(2)
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(3)
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(3)
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—
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Total
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(2)
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$125,000,000
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$16,225
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(1)
Calculated pursuant
to Rule 457(o) under the Securities Act of 1933, as
amended (the “Securities Act”).
(2)
There are being
registered hereunder such indeterminate number of shares of common
stock, such indeterminate principal amount of debt securities and
such indeterminate number of warrants to purchase common stock or
debt securities as shall have an aggregate initial offering price
not to exceed $125,000,000. If any debt securities are issued at an
original issue discount, then the principal amount of such debt
securities shall be in such greater amount as shall result in an
aggregate initial offering price not to exceed $125,000,000, less
the aggregate dollar amount of all securities previously issued
hereunder. The securities registered also include such
indeterminate number of shares of common stock and amount of debt
securities as may be issued upon conversion of or exchange for debt
securities that provide for conversion or exchange, upon exercise
of warrants or pursuant to the antidilution provisions of any such
securities. In addition, pursuant to Rule 416 under the
Securities Act, the shares being registered hereunder include such
indeterminate number of shares of common stock as may be issuable
with respect to the shares being registered hereunder as a result
of stock splits, stock dividends or similar
transactions.
(3)
The proposed
maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security
pursuant to General Instruction II.D. of Form S-3 under the
Securities Act.
The
registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or
until this registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
EXPLANATORY NOTE
This
registration statement contains:
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●
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a base
prospectus which covers the offering, issuance and sale by the
registrant of up to a maximum aggregate offering price of
$125,000,000 of the registrant’s common stock, debt
securities and/or warrants; and
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●
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a sales
agreement prospectus covering the offering, issuance and sale of up
to $50,000,000 of shares of the registrant’s common stock
that may be issued and sold under the At Market Issuance Sales
Agreement, dated June 12, 2020 (the “Sales Agreement”),
by and among the registrant, B. Riley FBR, Inc. and Raymond James
& Associates, Inc.
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The base prospectus immediately follows this
explanatory note. The specific terms of any securities to be
offered pursuant to the base prospectus will be specified in a
prospectus supplement to the base prospectus. The sales agreement
prospectus immediately follows the base prospectus. The common
stock that may be offered, issued and sold by the registrant under
the sales agreement prospectus is included in the
$125,000,000 of securities that
may be offered, issued and sold by the registrant under the base
prospectus. Upon termination of the Sales Agreement, any portion of
the $50,000,000 included in the
sales agreement prospectus that is not sold pursuant to the Sales
Agreement will be available for sale in other offerings pursuant to
the base prospectus.
The information in this
prospectus is not complete and may be changed. We may not
sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an
offer to sell these securities, and it is not soliciting offers to
buy these securities in any state where such offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED JUNE 12, 2020
PROSPECTUS
$125,000,000
Common Stock
Debt Securities
Warrants
From
time to time, we may offer up to $125,000,000 of any combination of
the securities described in this prospectus in one or more
offerings. We may also offer securities as may be issuable upon
conversion, redemption, repurchase, exchange or exercise of any
securities registered hereunder, including any applicable
antidilution provisions.
This
prospectus provides a general description of the securities we may
offer. Each time we offer securities, we will provide
specific terms of the securities offered in a supplement to this
prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free
writing prospectus may also add, update or change information
contained in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and any related
free writing prospectus, as well as any documents incorporated by
reference, before you invest in any of the securities being
offered.
This
prospectus may not be used to consummate a sale of any securities
unless accompanied by a prospectus supplement.
Our
common stock is traded on The Nasdaq Capital Market under the
symbol “CDXC.” On June 10, 2020, the last reported
sales price of our common stock was $4.52 per share. The
applicable prospectus supplement will contain information, where
applicable, as to any other listing on The Nasdaq Capital Market or
any securities market or other exchange of the securities, if any,
covered by the applicable prospectus supplement.
We will
sell these securities directly to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
entitled “Plan of Distribution” in this
prospectus. If any agents or underwriters are involved in the
sale of any securities with respect to which this prospectus is
being delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts or options to purchase additional securities
will be set forth in a prospectus supplement. The price to
the public of such securities and the net proceeds we expect to
receive from such sale will also be set forth in a prospectus
supplement.
Investing in our securities involves a high degree of risk. You
should review carefully the risks and uncertainties described under
the heading “Risk Factors” on page 4 of this prospectus
as well as those contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this
prospectus.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this prospectus is , 2020.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This
prospectus is a part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission (the
“SEC”), utilizing a “shelf” registration
process. Under this shelf registration process, we may sell any
combination of the securities described in this prospectus in one
or more offerings up to a total aggregate offering price of
$125,000,000. This prospectus provides you with a general
description of the securities we may offer.
Each
time we sell securities under this prospectus, we will provide a
prospectus supplement that will contain specific information about
the terms of that offering. We may also authorize one or more
free writing prospectuses to be provided to you that may contain
material information relating to these offerings. The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in any documents
that we have incorporated by reference into this prospectus. You
should read this prospectus, any applicable prospectus supplement
and any related free writing prospectus, together with the
information incorporated herein by reference as described under the
heading “Incorporation of Certain Information by
Reference,” before investing in any of the securities
offered.
THIS
PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither
we, nor any agent, underwriter or dealer has authorized any person
to give any information or to make any representation other than
those contained or incorporated by reference in this prospectus,
any applicable prospectus supplement or any related free writing
prospectus prepared by or on behalf of us or to which we have
referred you. This prospectus, any applicable supplement to this
prospectus or any related free writing prospectus do not constitute
an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they
relate, nor do this prospectus, any applicable supplement to this
prospectus or any related free writing prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
You
should not assume that the information contained in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate on any date subsequent to the
date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though
this prospectus, any applicable prospectus supplement or any
related free writing prospectus is delivered, or securities are
sold, on a later date.
This
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
PROSPECTUS SUMMARY
This
summary highlights selected information from this prospectus and
does not contain all of the information that you need to consider
in making your investment decision. You should carefully read the
entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing
in our securities discussed under the heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and under similar headings
in the other documents that are incorporated by reference into this
prospectus. You should also carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
Unless
the context requires otherwise, references in this prospectus to
“ChromaDex,” “the Company,”
“we,” “us” and “our” refer to
ChromaDex Corporation.
Company Overview
ChromaDex is a
science-based integrated nutraceutical company devoted to improving
the way people age. ChromaDex scientists partner with leading
universities and research institutions worldwide to discover,
develop and create solutions to deliver the full potential of
nicotinamide adenine dinucleotide (“NAD”) and its
impact on human health.
NAD is
an essential coenzyme and a key regulator of cellular metabolism.
Best known for its role in cellular energy production, NAD is now
thought to play an important role in healthy aging. Many cellular
functions related to health and healthy aging are sensitive to
levels of locally available NAD and this represents an active area
of research in the field of NAD.
NAD
levels are not constant, and in humans, NAD levels have been shown
to decline by more than 50% from young adulthood to middle age. NAD
continues to decline as humans grow older. There are other causes
of reduced NAD levels such as over-nutrition, alcohol consumption
and a number of disease states. NAD may also be increased,
including through calorie restriction and exercise. Healthy aging,
mitochondria and NAD continue to be areas of focus in the research
community. As of 2019, there were over 250 published human clinical
studies on NAD. The areas of study include Alzheimer’s
disease, Parkinson’s disease, neuropathy and heart
failure.
In
2013, ChromaDex commercialized NIAGEN® nicotinamide riboside
(“NR”), a novel form of vitamin B3. Data from numerous
animal studies, and confirmed in human clinical trials, show that
NR is a highly efficient NAD precursor that significantly raises
NAD levels. NIAGEN® is safe for human consumption.
NIAGEN® has twice been successfully reviewed under FDA’s
new dietary ingredient notification program, has been successfully
notified to the FDA as generally recognized as safe, and has been
approved by Health Canada, the European Commission and the
Therapeutic Goods Administration of Australia. Animal studies of
NIAGEN® have demonstrated a variety of outcomes ranging from
increased NAD levels, increased cellular metabolism and energy
production to improvements in insulin sensitivity. NIAGEN® is
the trade name for our proprietary ingredient NR, and is protected
by patents to which we are the exclusive licensee.
ChromaDex is the
world leader in the emerging NAD space. ChromaDex has approximately
195 partnerships with leading universities and research
institutions around the world including the National Institutes of
Health, Cornell, Dartmouth, Harvard, Massachusetts Institute of
Technology, University of Cambridge and the Mayo Clinic. Other
relationships are currently being developed.
Our
scientific advisory board is led by Chairman Dr. Roger Kornberg,
Nobel Laureate Stanford Professor, Dr. Charles Brenner, one of the
world’s recognized experts in NAD and inventor of
nicotinamide riboside, Dr. Rudi Tanzi, the co-chair of the
department of neurology at Harvard Medical School and one of the
world’s leading experts in food and nutrition, Sir John
Walker, Nobel Laureate and Emeritus Director, MRC Mitochondrial
Biology Unit in the University of Cambridge, England, Dr. Bruce
German, Chairman of food, nutrition and health at the University of
California, Davis, and Dr. Brunie Felding, Associate Professor,
Department of Molecular Medicine at Scripps Research Institute,
California Campus.
Corporate Information
On May 21,
2008, Cody Resources, Inc., a Nevada corporation and a public
company, (“Cody”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”), by and among Cody, CDI
Acquisition, Inc., a California corporation and wholly-owned
subsidiary of Cody, and ChromaDex, Inc. Subsequent to the signing
of the Merger Agreement, Cody merged with and into a Delaware
corporation. On June 20, 2008, Cody amended its certificate of
incorporation to change its name to ChromaDex Corporation. Our
principal executive offices are located at 10900 Wilshire Blvd.,
Suite 600, Los Angeles, California 90024. Our telephone number at
that address is (310) 388-6706. Our website address is
www.chromadex.com. The information contained in, or that can be
accessed through, our website is not part of this
prospectus.
All
brand names or trademarks appearing in this prospectus are the
property of their respective holders. Use or display by us of other
parties’ trademarks, trade dress, or products in this
prospectus is not intended to, and does not, imply a relationship
with, or endorsements or sponsorship of, us by the trademark or
trade dress owners.
The Securities We May Offer
We may
offer shares of our common stock, various series of debt securities
and warrants to purchase any of such securities, up to a total
aggregate offering price of $125,000,000 from time to time in one
or more offerings under this prospectus, together with any
applicable prospectus supplement and any related free writing
prospectus, at prices and on terms to be determined by market
conditions at the time of the relevant offering. This
prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series
of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and
other important terms of the securities, including, to the extent
applicable:
●
designation or
classification;
●
aggregate principal
amount or aggregate offering price;
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maturity, if
applicable;
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original issue
discount, if any;
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rates and times of
payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
●
conversion or
exchange prices or rates, if any, and, if applicable, any
provisions for changes to or adjustments in the conversion or
exchange prices or rates and in the securities or other property
receivable upon conversion or exchange;
●
ranking, if
applicable;
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restrictive
covenants, if any;
●
voting or other
rights, if any; and
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important U.S.
federal income tax considerations.
The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus
supplement or free writing prospectus will offer a security that is
not registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this
prospectus is a part.
This
prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
We may
sell the securities directly to investors or through underwriters,
dealers or agents. We, and our underwriters or agents,
reserve the right to accept or reject all or part of any proposed
purchase of securities. If we do offer securities through
underwriters or agents, we will include in the applicable
prospectus supplement:
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the names of those
underwriters or agents;
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applicable fees,
discounts and commissions to be paid to them;
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details regarding
options to purchase additional securities, if any; and
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the estimated net
proceeds to us.
Common Stock.
We may issue shares of our common stock from time to time. Holders
of our common stock are entitled to one vote per share for the
election of directors and on all other matters that require
stockholder approval. In the event of our liquidation, dissolution
or winding up, holders of our common stock are entitled to share
ratably in the assets remaining after payment of liabilities. Our
common stock does not carry any preemptive rights enabling a holder
to subscribe for, or receive shares of, our common stock or any
other securities convertible into shares of common stock, or any
redemption rights.
Debt
Securities. We may issue debt securities from time to
time, in one or more series, as either senior or subordinated debt
or as senior or subordinated convertible debt. The senior debt
securities will rank equally with any other unsecured and
unsubordinated debt. The subordinated debt securities will be
subordinate and junior in right of payment, to the extent and in
the manner described in the instrument governing the debt, to all
of our senior indebtedness. Convertible debt securities will be
convertible into our common stock. Conversion may be mandatory or
at the holder’s option and would be at prescribed conversion
rates.
The
debt securities will be issued under one or more documents called
indentures, which are contracts between us and a national banking
association or other eligible party, as trustee. In this
prospectus, we have summarized certain general features of the debt
securities. We urge you, however, to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize
to be provided to you) related to the series of debt securities
being offered, as well as the complete indentures that contain the
terms of the debt securities. A form of indenture has been filed as
an exhibit to the registration statement of which this prospectus
is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be
filed as exhibits to the registration statement of which this
prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
Warrants. We may issue warrants for the
purchase of common stock and/or debt securities in one or more
series. We may issue warrants independently or together with common
stock and/or debt securities, and the warrants may be attached to
or separate from these securities. In this prospectus, we have
summarized certain general features of the warrants. We urge you,
however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well
as the complete warrant agreements and warrant certificates that
contain the terms of the warrants. Forms of the warrant agreements
and forms of warrant certificates containing the terms of the
warrants being offered have been filed as exhibits to the
registration statement of which this prospectus is a part, and
supplemental warrant agreements and forms of warrant certificates
will be filed as exhibits to the registration statement of which
this prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
We will
evidence each series of warrants by warrant certificates that we
will issue. Warrants may be issued under an applicable warrant
agreement that we enter into with a warrant agent. We will indicate
the name and address of the warrant agent, if applicable, in the
prospectus supplement relating to the particular series of warrants
being offered.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Prior
to making a decision about investing in our securities, you should
consider carefully the specific risk factors discussed in the
sections entitled “Risk Factors” contained in our most
recent Annual Report on Form 10-K for the year ended December 31,
2019, as filed with the SEC on March 10, 2020 and as amended on May
18, 2020, or Quarterly Report on Form 10-Q for the quarter ended
March 31, 2020, as filed with the SEC on May 18, 2020, which are
incorporated in this prospectus by reference in their entirety, as
well as any amendment or updates to our risk factors reflected in
subsequent filings with the SEC, including any prospectus
supplement hereto. These risks and uncertainties are not the only
risks and uncertainties we face. Additional risks and uncertainties
not presently known to us, or that we currently view as immaterial,
may also impair our business. Past
financial performance may not be a reliable indicator of future
performance, and historical trends should not be unduly relied upon
to anticipate results or trends in future periods. If any of
the risks or uncertainties described in our SEC filings or any
additional risks and uncertainties actually occur, our business,
financial condition, results of operations and cash flow could be
materially and adversely affected. In that case, the trading price
of our common stock could decline and you might lose all or part of
your investment. Please also read carefully the section below
titled “Special Note Regarding Forward-Looking
Statements.”
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information
incorporated by reference in this prospectus and each prospectus
supplement contain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that involve a number of risks and uncertainties.
Although our forward-looking statements reflect the good faith
judgment of our management, these statements can only be based on
facts and factors currently known by us. Consequently, these
forward-looking statements are inherently subject to risks and
uncertainties, and actual results and outcomes may differ
materially from results and outcomes discussed in the
forward-looking statements.
Forward-looking
statements can be identified by the use of forward-looking words
such as “believes,” “expects,”
“hopes,” “may,” “will,”
“plan,” “intends,” “estimates,”
“could,” “should,” “would,”
“continue,” “seeks,” “pro
forma,” or “anticipates,” or other similar words
(including their use in the negative), or by discussions of future
matters such as our business, business strategy, products and
services we may offer in the future, the outcome and impact of
litigation, the timing and results of future regulatory filings,
our ability to collect from major customers, our sales and
marketing strategy and capital outlook, our estimates regarding our
capital requirements, future expenses and need for additional
financing, our use of the net proceeds from any offering and other
statements that are not historical. These statements include but
are not limited to statements under the captions
“Business,” “Risk Factors” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and in other sections
incorporated by reference from our Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q, as applicable, as well as
our other filings with the SEC. You should be aware that the
occurrence of any of the events discussed under the heading
“Risk Factors” in this prospectus, any applicable
prospectus supplement and any documents incorporated by reference
herein or therein could substantially harm our business, operating
results and financial condition and that if any of these events
occurs, it could adversely affect the value of an investment in our
securities.
The
cautionary statements made in this prospectus are intended to be
applicable to all related forward-looking statements wherever they
may appear in this prospectus or in any prospectus supplement or
any documents incorporated by reference herein or therein. We urge
you not to place undue reliance on these forward-looking
statements, which speak only as of the date they are made. Except
as required by law, we assume no obligation to update our
forward-looking statements, even if new information becomes
available in the future.
USE OF PROCEEDS
We will
retain broad discretion over the use of the net proceeds from the
sale of the securities offered hereby. Except as described in any
prospectus supplement or any related free writing prospectus that
we may authorize to be provided to you, we currently intend to use
the net proceeds from the sale of the securities offered hereby for
general corporate purposes, which may include capital expenditures,
working capital and general and administrative expenses. We may
also use a portion of the net proceeds to acquire or invest in
businesses and products that are complementary to our own, although
we have no current plans, commitments or agreements with respect to
any acquisitions as of the date of this prospectus. We will set
forth in the applicable prospectus supplement or free writing
prospectus our intended use for the net proceeds received from the
sale of any securities sold pursuant to the prospectus supplement
or free writing prospectus. Pending these uses, we intend to invest
the net proceeds primarily in money market mutual funds, obligations of the
U.S. government and its agencies, money market instruments
including commercial paper and negotiable certificates of deposit
and corporate bonds.
DESCRIPTION OF COMMON
STOCK
As of
the date of this prospectus, our amended and restated certificate
of incorporation, as amended, authorizes us to issue 150,000,000
shares of common stock, par value $0.001 per share. As of March 31,
2020, 59,787,897 shares of common stock were
outstanding.
The
following summary describes the material terms of our common stock.
The description of common stock is qualified by reference to our
amended and restated certificate of incorporation, as amended, and
our bylaws, as amended, which are incorporated by reference as
exhibits into the registration statement of which this prospectus
is a part.
Common Stock
Voting. Our common stock is entitled to
one vote for each share held of record on all matters submitted to
a vote of the stockholders, including the election of directors,
and does not have cumulative voting rights. Accordingly, the
holders of a majority of the shares of our common stock entitled to
vote in any election of directors can elect all of the directors
standing for election.
Dividends. The holders of common stock
are entitled to receive dividends, if any, as may be declared from
time to time by our board of directors out of legally available
funds.
Liquidation. In the event of our
liquidation, dissolution or winding-up, holders of our common stock
will be entitled to share ratably in the net assets legally
available for distribution to stockholders after the payment of all
of our debts and other liabilities.
Rights and Preferences. Holders of our
common stock have no preemptive, conversion or subscription rights,
and there are no redemption or sinking fund provisions applicable
to our common stock.
Delaware Anti-Takeover Law and Provisions of Our Amended and
Restated Certificate of Incorporation, as
amended, and Bylaws, as amended
Our
amended and restated certificate of incorporation, as amended, and
our bylaws, as amended, contain certain provisions that could have
the effect of delaying, deterring or preventing another party from
acquiring control of us, and therefore could adversely affect the
market price of our common stock. These provisions and certain
provisions of Delaware General Corporation Law (the
“DGCL”), which are summarized below, may also
discourage coercive takeover practices and inadequate takeover
bids, and are designed, in part, to encourage persons seeking to
acquire control of us to negotiate first with our board of
directors. We believe that the benefits of increased protection of
our potential ability to negotiate more favorable terms with an
unfriendly or unsolicited acquirer outweigh the disadvantages of
potentially discouraging a proposal to acquire us.
Delaware Anti-Takeover Law
We are
subject to Section 203 of the DGCL
(“Section 203”). Section 203 generally
prohibits a public Delaware corporation from engaging in a
“business combination” with an “interested
stockholder” for a period of three years following the time
that such stockholder became an interested stockholder,
unless:
●
prior to such time
the board of directors of the corporation approved either the
business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
●
upon consummation
of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock
owned by the interested stockholder) those shares owned (i) by
persons who are directors and also officers and (ii) employee
stock plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
●
at or subsequent to
such time the business combination is approved by the board of
directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least 66 2/3% of the outstanding voting stock which is not
owned by the interested stockholder.
Section 203
defines a business combination to include:
●
any merger or
consolidation involving the corporation and the interested
stockholder;
●
any sale, transfer,
pledge or other disposition involving the interested stockholder of
10% or more of the assets of the corporation;
●
subject to
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
subject to
exceptions, any transaction involving the corporation that has the
effect of increasing the proportionate share of the stock of any
class or series of the corporation beneficially owned by the
interested stockholder; and
●
the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines an interested stockholder as any
entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated
with or controlling or controlled by the entity or
person.
Amended and Restated Certificate of Incorporation, as amended, and
Bylaws, as amended
Among
other things, our amended and restated certificate of
incorporation, as amended, and bylaws, as amended:
●
provide that the
authorized number of directors may be changed only by resolution of
our board of directors;
●
provide that
directors may be removed with or without cause by the holders of at
least a majority of the voting power of all of our then-outstanding
shares of the capital stock then entitled to vote;
●
provide that all
vacancies, including newly created directorships, may, except as
otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a
quorum;
●
require that any
action to be taken by our stockholders must be effected at a duly
called annual or special meeting of stockholders and not be taken
by written consent or electronic transmission;
●
provide that
stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide advance notice in writing,
and also specify requirements as to the form and content of a
stockholder’s notice;
●
provide that
special meetings of our stockholders may be called only by the
chairman of our board of directors, our chief executive officer or
by our board of directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or
not there exists any vacancies);
●
do not provide for
cumulative voting rights (therefore allowing the holders of a
majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for
election, if they should so choose); and
●
provide that the
Court of Chancery of the State of Delaware will be the sole and
exclusive forum for the following types of actions or proceedings
under Delaware statutory or common law: (1) any derivative action
or proceeding brought on our behalf; (2) any action or proceeding
asserting a claim of breach of a fiduciary duty owed by any of our
current or former directors, officers or other employees to us or
our stockholders; (3) any action or proceeding asserting a claim
against us or any of our current or former directors, officers or
other employees, arising out of or pursuant to any provision of the
DGCL, our amended and restated certificate of incorporation, as
amended, or our bylaws, as amended; or (4) any action asserting a
claim against us governed by the internal affairs doctrine, in all
cases to the fullest extent permitted by law and subject to the
court’s having personal jurisdiction over the indispensable
parties named as defendants; provided these provisions will not
apply to suits brought to enforce a duty or liability created by
the Securities Act, the Exchange Act or any other claim for which
the federal courts have exclusive jurisdiction.
The
amendment of any of these provisions would require the affirmative
vote of the holders of at least a majority of the voting power of
all of our then outstanding common stock.
The
provisions of the DGCL and the provisions of our amended and
restated certificate of incorporation, as amended, and bylaws, as
amended, could have the effect of discouraging others from
attempting hostile takeovers and, as a consequence, they might also
inhibit temporary fluctuations in the market price of our common
stock that often result from actual or rumored hostile takeover
attempts. These provisions might also have the effect of preventing
changes in our management. It is possible that these provisions
could make it more difficult to accomplish transactions that
stockholders might otherwise deem to be in their best
interests.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Computershare
Inc. The transfer agent and registrar’s address is 462 South
4th Street, Suite 1600, Louisville, Kentucky 40202.
Listing on The Nasdaq Capital Market
Our
common stock is listed on The Nasdaq
Capital Market under the symbol
“CDXC”.
DESCRIPTION OF DEBT
SECURITIES
We may
issue debt securities from time to time, in one or more series, as
either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will
apply generally to any debt securities that we may offer under this
prospectus, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities offered
under a prospectus supplement may differ from the terms described
below. Unless the context requires otherwise, whenever we refer to
the indenture, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt
securities.
We will
issue the debt securities under the indenture that we will enter
into with the trustee named in the indenture. The indenture will be
qualified under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”). We have filed the form of
indenture as an exhibit to the registration statement of which this
prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being
offered will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by
reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and
the indenture is subject to, and qualified in its entirety by
reference to, all of the provisions of the indenture applicable to
a particular series of debt securities. We urge you to read the
applicable prospectus supplements and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete indenture that contains
the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may
issue. It provides that we may issue debt securities up to the
principal amount that we may authorize and may be in any currency
or currency unit that we may designate. Except for the limitations
on consolidation, merger and sale of all or substantially all of
our assets contained in the indenture, the terms of the indenture
do not contain any covenants or other provisions designed to give
holders of any debt securities protection against changes in our
operations, financial condition or transactions involving
us.
We may
issue the debt securities issued under the indenture as
“discount securities,” which means they may be sold at
a discount below their stated principal amount. These debt
securities, as well as other debt securities that are not issued at
a discount, may be issued with “original issue
discount,” or OID, for U.S. federal income tax purposes
because of interest payment and other characteristics or terms of
the debt securities. Material U.S. federal income tax
considerations applicable to debt securities issued with OID will
be described in more detail in any applicable prospectus
supplement.
We will
describe in the applicable prospectus supplement the terms of the
series of debt securities being offered, including:
●
the title of the
series of debt securities;
●
any limit upon the
aggregate principal amount that may be issued;
●
the maturity date
or dates;
●
the form of the
debt securities of the series;
●
the applicability
of any guarantees;
●
whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
●
whether the debt
securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;
●
if the price
(expressed as a percentage of the aggregate principal amount
thereof) at which such debt securities will be issued is a price
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the
principal amount of such debt securities that is convertible into
another security or the method by which any such portion shall be
determined;
●
the interest rate
or rates, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for
interest payment dates or the method for determining such
dates;
●
our right, if any,
to defer payment of interest and the maximum length of any such
deferral period;
●
if applicable, the
date or dates after which, or the period or periods during which,
and the price or prices at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional
redemption provisions and the terms of those redemption
provisions;
●
the date or dates,
if any, on which, and the price or prices at which we are
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the holder’s option
to purchase, the series of debt securities and the currency or
currency unit in which the debt securities are
payable;
●
the denominations
in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple
thereof;
●
any and all terms,
if applicable, relating to any auction or remarketing of the debt
securities of that series and any security for our obligations with
respect to such debt securities and any other terms which may be
advisable in connection with the marketing of debt securities of
that series;
●
whether the debt
securities of the series shall be issued in whole or in part in the
form of a global security or securities; the terms and conditions,
if any, upon which such global security or securities may be
exchanged in whole or in part for other individual securities; and
the depositary for such global security or securities;
●
if applicable, the
provisions relating to conversion or exchange of any debt
securities of the series and the terms and conditions upon which
such debt securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or
optional (at our option or the holders’ option) conversion or
exchange features, the applicable conversion or exchange period and
the manner of settlement for any conversion or
exchange;
●
if other than the
full principal amount thereof, the portion of the principal amount
of debt securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
●
additions to or
changes in the covenants applicable to the particular debt
securities being issued, including, among others, the
consolidation, merger or sale covenant;
●
additions to or
changes in the events of default with respect to the securities and
any change in the right of the trustee or the holders to declare
the principal, premium, if any, and interest, if any, with respect
to such securities to be due and payable;
●
additions to or
changes in or deletions of the provisions relating to covenant
defeasance and legal defeasance;
●
additions to or
changes in the provisions relating to satisfaction and discharge of
the indenture;
●
additions to or
changes in the provisions relating to the modification of the
indenture both with and without the consent of holders of debt
securities issued under the indenture;
●
the currency of
payment of debt securities if other than U.S. dollars and the
manner of determining the equivalent amount in U.S.
dollars;
●
whether interest
will be payable in cash or additional debt securities at our or the
holders’ option and the terms and conditions upon which the
election may be made;
●
the terms and
conditions, if any, upon which we will pay amounts in addition to
the stated interest, premium, if any and principal amounts of the
debt securities of the series to any holder that is not a
“United States person” for federal tax
purposes;
●
any restrictions on
transfer, sale or assignment of the debt securities of the series;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the debt securities, any other additions or changes in the
provisions of the indenture, and any terms that may be required by
us or advisable under applicable laws or regulations.
Conversion or Exchange Rights
We will
set forth in the applicable prospectus supplement the terms on
which a series of debt securities may be convertible into or
exchangeable for our common stock or our other securities. We will
include provisions as to settlement upon conversion or exchange and
whether conversion or exchange is mandatory, at the option of the
holder or at our option. We may include provisions pursuant to
which the number of shares of our common stock or our other
securities that the holders of the series of debt securities
receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of our
assets as an entirety or substantially as an entirety. However, any
successor to or acquirer of such assets (other than a subsidiary of
ours) must assume all of our obligations under the indenture or the
debt securities, as appropriate.
Events of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a
particular series of debt securities, the following are events of
default under the indenture with respect to any series of debt
securities that we may issue:
●
if we fail to pay
any installment of interest on any series of debt securities, as
and when the same shall become due and payable, and such default
continues for a period of 90 days; provided, however, that a valid
extension of an interest payment period by us in accordance with
the terms of any indenture supplemental thereto shall not
constitute a default in the payment of interest for this
purpose;
●
if we fail to pay
the principal of, or premium, if any, on any series of debt
securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous fund
established with respect to such series; provided, however, that a
valid extension of the maturity of such debt securities in
accordance with the terms of any indenture supplemental thereto
shall not constitute a default in the payment of principal or
premium, if any;
●
if we fail to
observe or perform any other covenant or agreement contained in the
debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our
failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that
such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding
debt securities of the applicable series; and
●
if specified events
of bankruptcy, insolvency or reorganization occur.
If an
event of default with respect to debt securities of any series
occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid
principal of, premium, if any, and accrued interest, if any, due
and payable immediately. If an event of default specified in the
last bullet point above occurs with respect to us, the principal
amount of and accrued interest, if any, of each issue of debt
securities then outstanding shall be due and payable without any
notice or other action on the part of the trustee or any
holder.
The
holders of a majority in principal amount of the outstanding debt
securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except
defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or
event of default in accordance with the indenture. Any waiver shall
cure the default or event of default.
Subject
to the terms of the indenture, if an event of default under an
indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding debt securities of any
series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series, provided
that:
●
the direction so
given by the holder is not in conflict with any law or the
applicable indenture; and
●
subject to its
duties under the Trust Indenture Act, the trustee need not take any
action that might involve it in personal liability or might be
unduly prejudicial to the holders not involved in the
proceeding.
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
●
the holder has
given written notice to the trustee of a continuing event of
default with respect to that series;
●
the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request,
●
such holders have
offered to the trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred by the trustee in
compliance with the request; and
●
the trustee does
not institute the proceeding, and does not receive from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series other conflicting directions within
90 days after the notice, request and offer.
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We will
periodically file statements with the trustee regarding our
compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and
the trustee may change an indenture without the consent of any
holders with respect to specific matters:
●
to cure any
ambiguity, defect or inconsistency in the indenture or in the debt
securities of any series;
●
to comply with the
provisions described above under “Description of Debt
Securities—Consolidation, Merger or Sale;”
●
to provide for
uncertificated debt securities in addition to or in place of
certificated debt securities;
●
to add to our
covenants, restrictions, conditions or provisions such new
covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the
occurrence, or the occurrence and the continuance, of a default in
any such additional covenants, restrictions, conditions or
provisions an event of default or to surrender any right or power
conferred upon us in the indenture;
●
to add to, delete
from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and
delivery of debt securities, as set forth in the
indenture;
●
to make any change
that does not adversely affect the interests of any holder of debt
securities of any series in any material respect;
●
to provide for the
issuance of and establish the form and terms and conditions of the
debt securities of any series as provided above under
“Description of Debt Securities—General” to
establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt
securities, or to add to the rights of the holders of any series of
debt securities;
●
to evidence and
provide for the acceptance of appointment under any indenture by a
successor trustee; or
●
to comply with any
requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act.
In
addition, under the indenture, the rights of holders of a series of
debt securities may be changed by us and the trustee with the
written consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, unless we provide otherwise in the
prospectus supplement applicable to a particular series of debt
securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities
affected:
●
extending the fixed
maturity of any debt securities of any series;
●
reducing the
principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or
●
reducing the
percentage of debt securities, the holders of which are required to
consent to any amendment, supplement, modification or
waiver.
Discharge
Each
indenture provides that we can elect to be discharged from our
obligations with respect to one or more series of debt securities,
except for specified obligations, including obligations
to:
●
provide for
payment;
●
register the
transfer or exchange of debt securities of the series;
●
replace stolen,
lost or mutilated debt securities of the series;
●
pay principal of
and premium and interest on any debt securities of the
series;
●
maintain paying
agencies;
●
hold monies for
payment in trust;
●
recover excess
money held by the trustee;
●
compensate and
indemnify the trustee; and
●
appoint any
successor trustee.
In
order to exercise our rights to be discharged, we must deposit with
the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt
securities of the series on the dates payments are
due.
Form, Exchange and Transfer
We will
issue the debt securities of each series only in fully registered
form without coupons and, unless we provide otherwise in the
applicable prospectus supplement, in denominations of $1,000 and
any integral multiple thereof. The indenture provides that we may
issue debt securities of a series in temporary or permanent global
form and as book-entry securities that will be deposited with, or
on behalf of, The Depository Trust Company (“DTC”), or
another depositary named by us and identified in the applicable
prospectus supplement with respect to that series. To the extent
the debt securities of a series are issued in global form and as
book-entry, a description of terms relating to any book-entry
securities will be set forth in the applicable prospectus
supplement.
At the
option of the holder, subject to the terms of the indenture and the
limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities
of any series can exchange the debt securities for other debt
securities of the same series, in any authorized denomination and
of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to
global securities set forth in the applicable prospectus
supplement, holders of the debt securities may present the debt
securities for exchange or for registration of transfer, duly
endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will impose no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will
name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security
registrar, that we initially designate for any debt securities. We
may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for
the debt securities of each series.
If we
elect to redeem the debt securities of any series, we will not be
required to:
●
issue, register the
transfer of, or exchange any debt securities of that series during
a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any debt securities
that may be selected for redemption and ending at the close of
business on the day of the mailing; or
●
register the
transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Information Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an
event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable
indenture. Upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indenture at the request of any holder
of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might
incur.
Payment and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any debt securities on any
interest payment date to the person in whose name the debt
securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the
interest.
We will
pay principal of and any premium and interest on the debt
securities of a particular series at the office of the paying
agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest
payments by check that we will mail to the holder or by wire
transfer to certain holders. Unless we otherwise indicate in the
applicable prospectus supplement, we will designate the corporate
trust office of the trustee as our sole paying agent for payments
with respect to debt securities of each series. We will name in the
applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of
the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be
repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The
indenture and the debt securities will be governed by and construed
in accordance with the internal laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
DESCRIPTION OF
WARRANTS
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common stock or debt securities and
may be issued in one or more series. Warrants may be issued
independently or together with common stock or debt securities
offered by any prospectus supplement, and may be attached to or
separate from those securities. While the terms we have summarized
below will apply generally to any warrants that we may offer under
this prospectus, we will describe the particular terms of any
series of warrants that we may offer in more detail in the
applicable prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus
supplement may differ from the terms described below. However, no
prospectus supplement will fundamentally change the terms that are
set forth in this prospectus or offer a security that is not
registered and described in this prospectus at the time of its
effectiveness.
We have
filed forms of the warrant agreements and forms of warrant
certificates containing the terms of the warrants being offered as
exhibits to the registration statement of which this prospectus is
a part. We will file as exhibits to the registration statement of
which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of warrant
agreement, if any, including a form of warrant certificate, that
describes the terms of the particular series of warrants we are
offering. The following summaries of material provisions of the
warrants and the warrant agreements are subject to, and qualified
in their entirety by reference to, all the provisions of the
warrant agreement and warrant certificate applicable to the
particular series of warrants that we may offer under this
prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we
may offer under this prospectus, as well as any related free
writing prospectuses, and the complete warrant agreements and
warrant certificates that contain the terms of the
warrants.
General
We will
describe in the applicable prospectus supplement the terms relating
to a series of warrants being offered, including:
●
the title of such
securities;
●
the offering price
or prices and aggregate number of warrants offered;
●
the currency or
currencies for which the warrants may be purchased;
●
if applicable, the
designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or
each principal amount of such security;
●
if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
●
if applicable, the
minimum or maximum amount of such warrants which may be exercised
at any one time;
●
in the case of
warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price
at which, and currency in which, this principal amount of debt
securities may be purchased upon such exercise;
●
in the case of
warrants to purchase common stock, the number of shares of common
stock purchasable upon the exercise of one warrant and the price at
which, and the currency in which, these shares may be purchased
upon such exercise;
●
the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreements and the warrants;
●
the terms of any
rights to redeem or call the warrants;
●
the terms of any
rights to force the exercise of the warrants;
●
any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
●
the dates on which
the right to exercise the warrants will commence and
expire;
●
the manner in which
the warrant agreements and warrants may be modified;
●
a discussion of any
material or special U.S. federal income tax consequences of holding
or exercising the warrants;
●
the terms of the
securities issuable upon exercise of the warrants; and
●
any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in the case of
warrants to purchase debt securities, the right to receive payments
of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
●
in the case of
warrants to purchase common stock, the right to receive dividends,
if any, or, payments upon our liquidation, dissolution or winding
up or to exercise voting rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus
supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will
become void.
Unless
we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants by delivering the
warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount
to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the
reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent in
connection with the exercise of the warrant.
Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all
or part of the exercise price for warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the
warrants and warrant agreements, and any claim, controversy or
dispute arising under or related to the warrants or warrant
agreements, will be governed by and construed in accordance with
the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any
warrant. A single bank or trust company may act as warrant
agent for more than one issue of warrants. A warrant agent
will have no duty or responsibility in case of any default by us
under the applicable warrant agreement or warrant, including any
duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or
the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF
SECURITIES
We can
issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee or depositary maintain for this purpose as the
“holders” of those securities. These persons are
the legal holders of the securities. We refer to those
persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as
“indirect holders” of those securities. As we
discuss below, indirect holders are not legal holders, and
investors in securities issued in book-entry form or in street name
will be indirect holders.
Book-Entry Holders
We may
issue securities in book-entry form only, as we will specify in the
applicable prospectus supplement. This means securities may
be represented by one or more global securities registered in the
name of a financial institution that holds them as depositary on
behalf of other financial institutions that participate in the
depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Global securities will be
registered in the name of the depositary or its participants.
Consequently, for global securities, we will recognize only the
depositary as the holder of the securities, and we will make all
payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, which in
turn pass the payments along to their customers who are the
beneficial owners. The depositary and its participants do so
under agreements they have made with one another or with their
customers; they are not obligated to do so under the terms of the
securities.
As a
result, investors in a global security will not own securities
directly. Instead, they will own beneficial interests in a
global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry
system or holds an interest through a participant. As long as
the securities are issued in global form, investors will be
indirect holders, and not legal holders, of the
securities.
Street Name Holders
We may
terminate a global security or issue securities in non-global form.
In these cases, investors may choose to hold their securities in
their own names or in “street name.” Securities held by
an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For
securities held in street name, we or any applicable trustee or
depositary will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are
registered as the holders of those securities, and we or any such
trustee or depositary will make all payments on those securities to
them. These institutions pass along the payments they receive
to their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our
obligations, as well as the obligations of any applicable trustee
or third party employed by us or a trustee, run only to the legal
holders of the securities. We do not have obligations to
investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the
case whether an investor chooses to be an indirect holder of a
security or has no choice because we are issuing the securities
only in global form.
For
example, once we make a payment or give a notice to the legal
holder, we have no further responsibility for the payment or notice
even if that legal holder is required, under agreements with its
participants or customers or by law, to pass it along to the
indirect holders but does not do so. Similarly, we may want
to obtain the approval of the holders to amend an indenture, to
relieve us of the consequences of a default or of our obligation to
comply with a particular provision of an indenture, or for other
purposes. In such an event, we would seek approval only from
the legal holders, and not the indirect holders, of the
securities. Whether and how the legal holders contact the
indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you
hold securities through a bank, broker or other financial
institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you
should check with your own institution to find out:
●
how it handles
securities payments and notices;
●
whether it imposes
fees or charges;
●
how it would handle
a request for the holders’ consent, if ever
required;
●
whether and how you
can instruct it to send you securities registered in your own name
so you can be a holder, if that is permitted in the
future;
●
how it would
exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests; and
●
if the securities
are in book-entry form, how the depositary’s rules and
procedures will affect these matters.
Global Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary.
Generally, all securities represented by the same global securities
will have the same terms.
Each
security issued in book-entry form will be represented by a global
security that we issue to, deposit with and register in the name of
a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all
securities issued in book-entry form.
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “—Special
Situations When a Global Security Will Be Terminated.” As a
result of these arrangements, the depositary, or its nominee, will
be the sole registered owner and legal holder of all securities
represented by a global security, and investors will be permitted
to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an
account with the depositary or with another institution that
does. Thus, an investor whose security is represented by a
global security will not be a legal holder of the security, but
only an indirect holder of a beneficial interest in the global
security.
If the
prospectus supplement for a particular security indicates that the
security will be issued as a global security, then the security
will be represented by a global security at all times unless and
until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
Special Considerations for Global Securities
As an
indirect holder, an investor’s rights relating to a global
security will be governed by the account rules of the
investor’s financial institution and of the depositary, as
well as general laws relating to securities transfers. We do
not recognize an indirect holder as a holder of securities and
instead deal only with the depositary that holds the global
security.
If
securities are issued only as global securities, an investor should
be aware of the following:
●
an investor cannot
cause the securities to be registered in his or her name, and
cannot obtain non-global certificates for his or her interest in
the securities, except in the special situations we describe
below;
●
an investor will be
an indirect holder and must look to his or her own bank or broker
for payments on the securities and protection of his or her legal
rights relating to the securities, as we describe
above;
●
an investor may not
be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own
their securities in non-book-entry form;
●
an investor may not
be able to pledge his or her interest in the global security in
circumstances where certificates representing the securities must
be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
●
the
depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in the global
security;
●
we and any
applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership
interests in the global security, nor will we or any applicable
trustee supervise the depositary in any way;
●
the depositary may,
and we understand that DTC will, require that those who purchase
and sell interests in the global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
●
financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in the
global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities.
There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In a
few special situations described below, a global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in
street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in securities transferred to their own names, so that
they will be direct holders. We have described the rights of
holders and street name investors above.
A
global security will terminate when the following special
situations occur:
●
if the depositary
notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security and we do not
appoint another institution to act as depositary within 90
days;
●
if we notify any
applicable trustee that we wish to terminate that global security;
or
●
if an event of
default has occurred with regard to securities represented by that
global security and has not been cured or waived.
The
applicable prospectus supplement may also list additional
situations for terminating a global security that would apply only
to the particular series of securities covered by the applicable
prospectus supplement. When a global security terminates, the
depositary, and neither we nor any applicable trustee, is
responsible for deciding the names of the institutions that will be
the initial direct holders.
PLAN OF DISTRIBUTION
We may
sell the securities covered hereby from time to time pursuant to
underwritten public offerings, direct sales to the public,
negotiated transactions, block trades or a combination of these
methods. A distribution of these securities offered by this
prospectus may also be effected through the issuance of derivative
securities, including without limitation, warrants. We may sell the
securities to or through underwriters or dealers, through agents,
or directly to one or more purchasers. We may distribute securities
from time to time in one or more transactions:
●
at a fixed price or
prices, which may be changed;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
●
at negotiated
prices.
We may
also sell equity securities covered by this registration statement
in an “at the market offering” as defined in
Rule 415(a)(4) under the Securities Act. Such offering
may be made into an existing trading market for such securities in
transactions at other than a fixed price, either:
●
on or through the
facilities of The Nasdaq Capital
Market or any other securities exchange or quotation or
trading service on which such securities may be listed, quoted or
traded at the time of sale; and/or
●
to or through a
market maker other than on The Nasdaq
Capital Market or such other securities exchanges or
quotation or trading services.
Such
at-the-market offerings, if any, may be conducted by underwriters
acting as principal or agent.
A
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to
the extent applicable:
●
the name or names
of any underwriters, dealers or agents, if any;
●
the purchase price
of the securities and the proceeds we will receive from the
sale;
●
any options
pursuant to which underwriters may purchase additional securities
from us;
●
any agency fees or
underwriting discounts and other items constituting agents’
or underwriters’ compensation;
●
any public offering
price;
●
any discounts or
concessions allowed or reallowed or paid to dealers;
and
●
any securities
exchange or market on which the securities may be
listed.
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all of
the securities offered by the prospectus supplement, other than
securities covered by any option to purchase additional
securities. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may change from
time to time. We may use underwriters with whom we have a
material relationship. We will describe in the prospectus
supplement, naming the underwriter, the nature of any such
relationship.
We may
sell securities directly or through agents we designate from time
to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions and other
compensation we will pay the agent in the prospectus
supplement. Unless the prospectus supplement states
otherwise, our agent will act on a best-efforts basis for the
period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe
the conditions to these contracts and the commissions we must pay
for solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against civil
liabilities related to this offering, including liabilities under
the Securities Act, or contribution with respect to payments that
the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary
course of business.
All
securities we may offer, other than common stock, will be new
issues of securities with no established trading market. Any
agents or underwriters may make a market in these securities, but
will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the
liquidity of the trading markets for any securities. There is
currently no market for any of the offered securities, other than
our common stock which is listed on The Nasdaq Capital Market. We
have no current plans for listing of the debt securities or
warrants on any securities exchange or quotation system; any such
listing with respect to any particular debt securities or warrants
will be described in the applicable prospectus supplement or other
offering materials, as the case may be.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with
Rule 103 of Regulation M under the Exchange Act.
Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short covering
transactions involve purchases of the securities in the open market
after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the
dealer are purchased in a stabilizing or covering transaction to
cover short positions. Those activities may cause the price
of the securities to be higher than it would otherwise be. If
commenced, the underwriters may discontinue any of the activities
at any time. These transactions may be effected on any
exchange or over-the-counter market or otherwise.
Any
agents and underwriters who are qualified market makers on The
Nasdaq Capital Market may
engage in passive market making transactions in the securities on
The Nasdaq Capital Market in
accordance with Rule 103 of Regulation M, during the business
day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers
must comply with applicable volume and price limitations and must
be identified as passive market makers. In general, a passive
market maker must display its bid at a price not in excess of the
highest independent bid for such security; if all independent bids
are lowered below the passive market maker’s bid, however,
the passive market maker’s bid must then be lowered when
certain purchase limits are exceeded. Passive market making may
stabilize the market price of the securities at a level above that
which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement,
certain legal matters in connection with the offering and the
validity of the securities offered by this prospectus, and any
supplement thereto, will be passed upon by Cooley LLP, San Diego,
California.
EXPERTS
The
financial statements, schedule and management’s assessment of
the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus is a part have been
so incorporated by reference in reliance upon the reports of Marcum
LLP, independent registered public accountants, upon the authority
of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus, which constitutes a part of the registration statement,
does not contain all of the information set forth in the
registration statement or the exhibits which are part of the
registration statement. For further information with respect to us
and the securities offered by this prospectus, we refer you to the
registration statement and the exhibits filed as part of the
registration statement. Neither we nor any agent, underwriter or
dealer has authorized any person to provide you with information
that is different from that contained in this prospectus, any
applicable prospectus supplement or in any free writing prospectus
we may authorize to be delivered or made available to you. We take
no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information
contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the document or
that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by
reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or
securities are sold, on a later date.
We file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public at the SEC's website at www.sec.gov. You may obtain a copy
of these filings at no cost by writing us at the following address:
ChromaDex Corporation, 10900 Wilshire Blvd., Suite 600, Los
Angeles, California 90024, Attention: Corporate Secretary. We also
maintain a website at www.chromadex.com. The information contained
in, or that can be accessed through, our website is not part of
this prospectus.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC
allows us to “incorporate by reference” into this
prospectus the information we file with them, which means that we
can disclose important information to you by referring you to those
documents. In accordance with Rule 412 of the Securities Act, any
statement contained or incorporated by reference in this prospectus
shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein, or in
any subsequently filed document which also is incorporated by
reference herein, modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
prospectus.
We
incorporate by reference the documents listed below:
●
our Annual Report
on Form 10-K for the fiscal year ended December 31, 2019, filed
with the SEC on March 10, 2020, as amended on May 18,
2020;
●
the information
specifically incorporated by reference into our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019 from our
definitive proxy statement on Schedule 14A (other than information
furnished rather than filed) filed with the SEC on April 21,
2020;
●
our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2020,
filed with the SEC on May 18, 2020;
●
our Current Reports
on Form 8-K (other than information furnished rather than filed)
filed with the SEC on January 10, 2020, April 29, 2020, and May 7,
2020; and
●
the description of
our Common Stock in our registration statement on Form 8-A filed
with the SEC on April 21, 2016, including any amendments or reports
filed for the purpose of updating such description.
We also
incorporate by reference into this prospectus all documents (other
than Current Reports furnished under Item 2.02 or Item 7.01 of Form
8-K and exhibits filed on such form that are related to such items)
that are subsequently filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the securities made by this
prospectus (including documents filed after the date of the initial
registration statement of which this prospectus is a part and prior
to the effectiveness of the registration statement).
You may
request a copy of these filings at no cost, by contacting us at the
following address or telephone number:
ChromaDex
Corporation
10900
Wilshire Blvd., Suite 600
Los
Angeles, California 90024
Attention:
Corporate Secretary
(310)
388-6706
-25-
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES OR ACCEPT AN OFFER
TO BUY THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 12, 2020
PROSPECTUS
$50,000,000
Common Stock
__________________
We
have entered into an At Market Issuance Sales Agreement (the
“Sales Agreement”), dated as of June 12, 2020, with B.
Riley FBR, Inc. (“B. Riley FBR”) and Raymond James
& Associates, Inc. (“Raymond James” and together
with B. Riley FBR, the “Sales Agents”), relating to the
sale of shares of our common stock offered by this prospectus. In
accordance with the terms of the Sales Agreement, under this
prospectus we may offer and sell shares of our common stock, $0.001
par value per share, having an aggregate offering price of up to
$50,000,000 from time to time through or to the Sales Agents,
acting as our agents or principals.
Our
common stock is listed on The Nasdaq Capital Market under the
symbol “CDXC.” On June 10, 2020, the last reported sale
price of our common stock on The Nasdaq Capital Market was $4.52
per share.
Sales
of our common stock, if any, under this prospectus may be made by
any method deemed to be an “at the market offering” as
defined in Rule 415(a)(4) promulgated under the Securities Act of
1933, as amended (the “Securities Act”). The Sales
Agents will act as our sales agents, using commercially reasonable
efforts to sell on our behalf all of the shares of common stock
requested to be sold by us, consistent with their normal trading
and sales practices, on mutually agreed terms set forth in the
Sales Agreement. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
The
compensation to the Sales Agents for sales of common stock sold
pursuant to the Sales Agreement is equal to up to 3.0% of the gross
proceeds of the sales price per share. In connection with the sale
of the common stock on our behalf, the Sales Agents will be deemed
to be “underwriters” within the meaning of the
Securities Act, and the compensation of the Sales Agents will be
deemed to be underwriting commissions or discounts. We have also
agreed to provide indemnification and contribution to the Sales
Agents with respect to certain liabilities, including liabilities
under the Securities Act.
____________________
Investing in our common stock involves a high degree of risk.
Please read the information contained in and incorporated by
reference under the heading “Risk Factors” beginning on
page 4 of this prospectus, and under similar headings in the other
documents that are filed after the date hereof and incorporated by
reference into this prospectus.
____________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
____________________
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B.
Riley FBR
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Raymond
James
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The date of this prospectus is
,
2020.
TABLE OF CONTENTS
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Page
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1
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2
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4
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5
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6
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7
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8
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9
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9
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9
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9
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ABOUT THIS PROSPECTUS
This
prospectus relates to the offering of our common stock. Before
buying any of the common stock that we are offering, we urge you to
carefully read this prospectus, together with the information
incorporated by reference as described under the heading
“Incorporation of Certain Information by Reference” in
this prospectus and the information in any free writing prospectus
that we may authorize for use in connection with this offering.
These documents contain important information that you should
consider when making your investment decision.
This
prospectus describes the specific terms of the common stock we are
offering and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the
extent there is a conflict between the information contained in
this prospectus, on the one hand, and the information contained in
any document incorporated by reference into this prospectus that
was filed with the Securities and Exchange Commission, or SEC,
before the date of this prospectus, on the other hand, you should
rely on the information in this prospectus. If any statement in one
of these documents is inconsistent with a statement in another
document having a later date — for example, a document
incorporated by reference into this prospectus — the
statement in the document having the later date modifies or
supersedes the earlier statement.
You
should rely only on the information contained in, or incorporated
by reference into this prospectus and in any free writing
prospectus that we may authorize for use in connection with this
offering. We have not, and the Sales Agents have not, authorized
any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you
should not rely on it. We are not, and the Sales Agents are not,
making an offer to sell or soliciting an offer to buy our common
stock in any jurisdiction in which an offer or solicitation is not
authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to
make an offer or solicitation. You should assume that the
information appearing in this prospectus, the documents
incorporated by reference into this prospectus, and in any free
writing prospectus that we may authorize for use in connection with
this offering, is accurate only as of the date of those respective
documents. Our business, financial condition, results of operations
and prospects may have changed since those dates. You should read
this prospectus, the documents incorporated by reference into this
prospectus, and any free writing prospectus that we may authorize
for use in connection with this offering, in their entirety before
making an investment decision. You should also read and consider
the information in the documents to which we have referred you in
the sections of this prospectus entitled “Where You Can Find
More Information” and “Incorporation of Certain
Information by Reference.”
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PROSPECTUS
SUMMARY
This
summary highlights certain information about us, this offering and
selected information contained elsewhere in or incorporated by
reference into this prospectus. This summary is not complete and
does not contain all of the information that you should consider
before deciding whether to invest in our common stock. For a more
complete understanding of our company and this offering, we
encourage you to read and consider carefully the more detailed
information in this prospectus, including the information
incorporated by reference into this prospectus, and the information
included in any free writing prospectus that we may authorize for
use in connection with this offering, including the information
contained in and incorporated by reference under the heading
“Risk Factors” beginning on page 4 of this prospectus,
and under similar headings in the other documents that are filed
after the date hereof and incorporated by reference into this
prospectus.
Unless
the context requires otherwise, references in this prospectus to
“ChromaDex,” “the Company,”
“we,” “us” and “our” refer to
ChromaDex Corporation.
Company Overview
ChromaDex is a
science-based integrated nutraceutical company devoted to improving
the way people age. ChromaDex scientists partner with leading
universities and research institutions worldwide to discover,
develop and create solutions to deliver the full potential of
nicotinamide adenine dinucleotide (“NAD”) and its
impact on human health.
NAD is
an essential coenzyme and a key regulator of cellular metabolism.
Best known for its role in cellular energy production, NAD is now
thought to play an important role in healthy aging. Many cellular
functions related to health and healthy aging are sensitive to
levels of locally available NAD and this represents an active area
of research in the field of NAD.
NAD
levels are not constant, and in humans, NAD levels have been shown
to decline by more than 50% from young adulthood to middle age. NAD
continues to decline as humans grow older. There are other causes
of reduced NAD levels such as over-nutrition, alcohol consumption
and a number of disease states. NAD may also be increased,
including through calorie restriction and exercise. Healthy aging,
mitochondria and NAD continue to be areas of focus in the research
community. As of 2019, there were over 250 published human clinical
studies on NAD. The areas of study include Alzheimer’s
disease, Parkinson’s disease, neuropathy and heart
failure.
In
2013, ChromaDex commercialized NIAGEN® nicotinamide riboside
(“NR”), a novel form of vitamin B3. Data from numerous
animal studies, and confirmed in human clinical trials, show that
NR is a highly efficient NAD precursor that significantly raises
NAD levels. NIAGEN® is safe for human consumption.
NIAGEN® has twice been successfully reviewed under FDA’s
new dietary ingredient notification program, has been successfully
notified to the FDA as generally recognized as safe, and has been
approved by Health Canada, the European Commission and the
Therapeutic Goods Administration of Australia. Animal studies of
NIAGEN® have demonstrated a variety of outcomes ranging from
increased NAD levels, increased cellular metabolism and energy
production to improvements in insulin sensitivity. NIAGEN® is
the trade name for our proprietary ingredient NR, and is protected
by patents to which we are the exclusive licensee.
ChromaDex is the
world leader in the emerging NAD space. ChromaDex has approximately
195 partnerships with leading universities and research
institutions around the world including the National Institutes of
Health, Cornell, Dartmouth, Harvard, Massachusetts Institute of
Technology, University of Cambridge and the Mayo Clinic. Other
relationships are currently being developed.
Our
scientific advisory board is led by Chairman Dr. Roger Kornberg,
Nobel Laureate Stanford Professor, Dr. Charles Brenner, one of the
world’s recognized experts in NAD and inventor of
nicotinamide riboside, Dr. Rudi Tanzi, the co-chair of the
department of neurology at Harvard Medical School and one of the
world’s leading experts in food and nutrition, Sir John
Walker, Nobel Laureate and Emeritus Director, MRC Mitochondrial
Biology Unit in the University of Cambridge, England, Dr. Bruce
German, Chairman of food, nutrition and health at the University of
California, Davis, and Dr. Brunie Felding, Associate Professor,
Department of Molecular Medicine at Scripps Research Institute,
California Campus.
Corporate Information
On May 21,
2008, Cody Resources, Inc., a Nevada corporation and a public
company, (“Cody”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”), by and among Cody, CDI
Acquisition, Inc., a California corporation and wholly-owned
subsidiary of Cody, and ChromaDex, Inc. Subsequent to the signing
of the Merger Agreement, Cody merged with and into a Delaware
corporation. On June 20, 2008, Cody amended its certificate of
incorporation to change its name to ChromaDex Corporation. Our
principal executive offices are located at 10900 Wilshire Blvd.,
Suite 600, Los Angeles, California 90024. Our telephone number at
that address is (310) 388-6706. Our website address is
www.chromadex.com. The information contained in, or that can be
accessed through, our website is not part of this
prospectus.
All
brand names or trademarks appearing in this prospectus are the
property of their respective holders. Use or display by us of other
parties’ trademarks, trade dress, or products in this
prospectus is not intended to, and does not, imply a relationship
with, or endorsements or sponsorship of, us by the trademark or
trade dress owners.
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The Offering
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Common
stock offered by us
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In
accordance with the terms of the Sales Agreement, we may offer and
sell shares of our common stock from time to time through or to B.
Riley FBR and Raymond James having an aggregate offering price of
up to $50,000,000 pursuant to this prospectus.
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Plan of
Distribution
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“At
the market offering” that may be made from time to time
through or to B. Riley FBR and Raymond James as our sales agents or
principals. See “Plan of Distribution” on page
8.
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Use of
Proceeds
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We
currently intend to use the net proceeds from this offering, if
any, for working capital and general corporate purposes, including
but not limited to, capital expenditures and general and
administrative expenses. See “Use of Proceeds” on page
6 of this prospectus.
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Risk
Factors
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Investing
in our common stock involves a high degree of risk. Please read the
information contained in and incorporated by reference under the
heading “Risk Factors” beginning on page 4 of this
prospectus, and under similar headings in the other documents that
are filed after the date hereof and incorporated by reference into
this prospectus, before deciding whether to invest in our common
stock.
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Nasdaq
Capital Market Listing
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Our
common stock is listed on The Nasdaq Capital Market under the
symbol “CDXC.”
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RISK FACTORS
An
investment in our common stock involves a high degree of risk.
Prior to making a decision about investing in our common stock, you
should consider carefully the specific risk factors discussed in
the sections entitled “Risk Factors” contained in our
most recent Annual Report on Form 10-K for the year ended December
31, 2019, as filed with the SEC on March 10, 2020 and as amended on
May 18, 2020, or Quarterly Report on Form 10-Q for the quarter
ended March 31, 2020, as filed with the SEC on May 18, 2020, which
are incorporated in this prospectus by reference in their
entirety, as updated or superseded by
the risks and uncertainties described under similar headings in the
other documents that are filed after the date hereof and
incorporated by reference into this prospectus, together with other
information in this prospectus, the documents incorporated by
reference and any free writing prospectus that we may authorize for
use in connection with this offering. These risks and
uncertainties are not the only risks and uncertainties we face.
Additional risks and uncertainties not presently known to us, or
that we currently view as immaterial, may also impair our business.
Past financial performance may not be
a reliable indicator of future performance, and historical trends
should not be unduly relied upon to anticipate results or trends in
future periods. If any of the risks or uncertainties
described in our SEC filings or any additional risks and
uncertainties actually occur, our business, financial condition,
results of operations and cash flow could be materially and
adversely affected. In that case, the trading price of our common
stock could decline and you might lose all or part of your
investment. Please also read carefully the section below titled
“Special Note Regarding Forward-Looking
Statements.”
Additional Risks Related to This Offering
Management will have broad discretion as to the use of the proceeds
from this offering and may not use the proceeds
effectively.
Because
we have not designated the amount of net proceeds from this
offering to be used for any particular purpose, our management will
have broad discretion as to the application of the net proceeds
from this offering and could use them for purposes other than those
contemplated at the time of the offering. Our management may use
the net proceeds for corporate purposes that may not improve our
financial condition or market value.
You may experience immediate and substantial dilution.
The
offering prices per share in this offering may exceed the net
tangible book value per share of our common stock. Assuming that an
aggregate of 11,061,947 shares of our common stock are sold at a
price of $4.52 per share pursuant to this prospectus, which was the
last reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020, for aggregate gross proceeds of
approximately $50.0 million, after deducting commissions and
estimated aggregate offering expenses payable by us, you would
experience immediate dilution of $3.62 per share, representing the
difference between our as adjusted net tangible book value per
share as of March 31, 2020 after giving effect to this offering and
the assumed offering price. The exercise of outstanding stock
options may result in further dilution of your investment. See the
section titled “Dilution” below for a more detailed
illustration of the dilution you would incur if you participate in
this offering.
You may experience future dilution as a result of future equity
offerings.
In
order to raise additional capital, we may in the future offer
additional shares of our common stock or other securities
convertible into or exchangeable for our common stock at prices
that may not be the same as the price per share paid by any
investor in this offering. We may sell shares or other securities
in any other offering at a price per share that is less than the
price per share paid by any investor in this offering, and
investors purchasing shares or other securities in the future could
have rights superior to you. The price per share at which we sell
additional shares of our common stock, or securities convertible or
exchangeable into common stock, in future transactions may be
higher or lower than the price per share paid by any investor in
this offering.
We do not intend to pay dividends in the foreseeable
future.
We
have never paid cash dividends on our common stock and currently do
not plan to pay any cash dividends in the foreseeable
future.
FORWARD-LOOKING
STATEMENTS
This
prospectus and the information incorporated by reference contain
forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 (the “Securities Act”),
and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that involve a number of
risks and uncertainties. Although our forward-looking statements
reflect the good faith judgment of our management, these statements
can only be based on facts and factors currently known by us.
Consequently, these forward-looking statements are inherently
subject to risks and uncertainties, and actual results and outcomes
may differ materially from results and outcomes discussed in the
forward-looking statements.
Forward-looking
statements can be identified by the use of forward-looking words
such as “believes,” “expects,”
“hopes,” “may,” “will,”
“plan,” “intends,” “estimates,”
“could,” “should,” “would,”
“continue,” “seeks,” “pro
forma,” or “anticipates,” or other similar words
(including their use in the negative), or by discussions of future
matters such as our business, business strategy, products and
services we may offer in the future, the outcome and impact of
litigation, the timing and results of future regulatory filings,
our ability to collect from major customers, our sales and
marketing strategy and capital outlook, our estimates regarding our
capital requirements, future expenses and need for additional
financing, our use of the net proceeds from any offering and other
statements that are not historical. These statements include but
are not limited to statements under the captions
“Business,” “Risk Factors” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and in other sections
incorporated by reference from our Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q, as applicable, as well as
our other filings with the SEC. You should be aware that the
occurrence of any of the events discussed under the heading
“Risk Factors” in this prospectus, any applicable
prospectus supplement and any documents incorporated by reference
herein or therein could substantially harm our business, operating
results and financial condition and that if any of these events
occurs, it could adversely affect the value of an investment in our
securities.
The
cautionary statements made in this prospectus are intended to be
applicable to all related forward-looking statements wherever they
may appear in this prospectus or in any prospectus supplement or
any documents incorporated by reference herein or therein. We urge
you not to place undue reliance on these forward-looking
statements, which speak only as of the date they are made. Except
as required by law, we assume no obligation to update our
forward-looking statements, even if new information becomes
available in the future.
USE OF PROCEEDS
We currently intend to use the
net proceeds from this offering, if any, for working capital and
general corporate purposes, including but not limited to,
for capital
expenditure and general and administrative
expenses.
The
amounts and timing of our use of the net proceeds from this
offering, if any, will depend on a number of factors, such as the
timing and progress of any partnering efforts, any strategic
transactions in which we may engage, and the competitive
environment for our product. As of the date of this prospectus, we
cannot specify with certainty all of the particular uses for the
net proceeds to us from this offering. Accordingly, our management
will have broad discretion in the timing and application of these
proceeds. Pending application of the net proceeds as described
above, we intend to temporarily invest the proceeds in short-term,
interest-bearing instruments.
DILUTION
If
you invest in this offering, your ownership interest will be
diluted to the extent of the difference between the public offering
price per share and the as adjusted net tangible book value per
share after giving effect to this offering. We calculate net
tangible book value per share by dividing the net tangible book
value, which is tangible assets less total liabilities, by the
number of outstanding shares of our common stock. Dilution
represents the difference between the price per share paid by
purchasers of shares in this offering and the as adjusted net
tangible book value per share of our common stock immediately after
giving effect to this offering. Our net tangible book value as of
March 31, 2020 was approximately $15.3 million, or $0.26 per
share.
After
giving effect to the sale of our common stock during the remaining
term of the Sales Agreement in the aggregate amount of $50.0
million at an assumed offering price of $4.52 per share, the last
reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020 and after deducting commissions and
estimated aggregate offering expenses payable by us, our net
tangible book value as of March 31, 2020 would have been $63.5
million, or $0.90 per share of common stock. This represents an
immediate increase in the net tangible book value of $0.64 per
share to our existing stockholders and an immediate dilution in net
tangible book value of $3.62 per share to new investors. The
following table illustrates this per share dilution:
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Assumed public
offering price per share
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$4.52
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Net tangible book
value per share as of March 31, 2020
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$0.26
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Increase in net
tangible book value per share attributable to this
offering
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$0.64
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As adjusted net
tangible book value per share as of March 31, 2020, after giving effect to this
offering
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$0.90
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Dilution per share
to new investors purchasing shares in this offering
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$3.62
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The
table above assumes for illustrative purposes that an aggregate of
11,061,947 shares of our common stock are sold during the term of
the Sales Agreement at a price of $4.52 per share, the last
reported sale price of our common stock on The Nasdaq Capital
Market on June 10, 2020, for aggregate gross proceeds of $50.0
million. The shares subject to the Sales Agreement are being sold
from time to time at various prices. An increase of $0.50 per share
in the price at which the shares are sold from the assumed offering
price per share shown in the table above, to $5.02 per share,
assuming all of our common stock in the aggregate amount of $50.0
million during the remaining term of the Sales Agreement is sold at
that price, would increase our adjusted net tangible book value per
share after the offering to $0.91 per share and would increase the
dilution in net tangible book value per share to new investors in
this offering to $4.11 per share, after deducting commissions and
estimated aggregate offering expenses payable by us. A decrease of
$0.50 per share in the price at which the shares are sold from the
assumed offering price per share shown in the table above, to $4.02
per share, assuming all of our common stock in the aggregate amount
of $50.0 million during the term of the Sales Agreement is sold at
that price, would decrease our adjusted net tangible book value per
share after the offering to $0.88 per share and would
decrease the dilution in net tangible book value per share to new
investors in this offering to $3.14 per share, after
deducting commissions and estimated aggregate offering expenses
payable by us. This information is supplied for illustrative
purposes only.
The
above discussion and table are based on 59,787,897 shares of our
common stock issued and outstanding as of March 31, 2020, and
exclude the following, all as of March 31, 2020:
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12,194,125
shares of common stock issuable upon the exercise of outstanding
stock options with a weighted-average exercise price of $3.86 per
share; and
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up
to an aggregate of approximately 1,205,698 shares of common stock
reserved for future issuance under our 2017 Equity Incentive Plan,
as amended.
To
the extent that options outstanding as of March 31, 2020 have been
or are exercised, or other shares are issued, investors purchasing
shares in this offering could experience further dilution. In
addition, we may choose to raise additional capital due to market
conditions or strategic considerations, including for potential
acquisition or in-licensing opportunities, even if we believe we
have sufficient funds for our current or future operating plans. To
the extent that additional capital is raised through the sale of
equity or convertible debt securities, the issuance of these
securities could result in further dilution to our
stockholders.
PLAN OF DISTRIBUTION
We
have entered into the Sales Agreement with B. Riley FBR and Raymond
James, under which we may issue and sell shares of our common stock
from time to time up to an aggregate sales price of $50,000,000
through or to the Sales Agents as agents or principals. The Sales
Agreement is filed as Exhibit 1.2 to our registration statement on
Form S-3 of which this prospectus forms a part, and is incorporated
by reference in this prospectus. Sales of our common stock, if any,
under this prospectus will be made by any method that is deemed an
“at the market offering” as defined in Rule 415(a)(4)
under the Securities Act.
Each
time we wish to issue and sell common stock under the Sales
Agreement, we will notify a Sales Agent of the number or dollar
value of shares to be issued, the dates on which such sales are
anticipated to be made and any minimum price below which sales may
not be made. Once we have so instructed such Sales Agent, unless
the Sales Agent declines to accept the terms of such notice, the
Sales Agent has agreed to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such
shares up to the amount specified on such terms. The obligations of
the Sales Agent under the Sales Agreement to sell our common stock
are subject to a number of conditions that we must
meet.
The
settlement between us and the Sales Agents is generally anticipated
to occur on the second trading day following the date on which the
sale was made. Sales of our common stock as contemplated in this
prospectus will be settled through the facilities of The Depository
Trust Company or by such other means as we and the Sales Agents may
agree upon. There is no arrangement for funds to be received in an
escrow, trust or similar arrangement.
We
will pay the Sales Agents a commission equal to up to 3.0% of the
gross proceeds we receive from the sales of our common stock. In
addition, we have agreed to reimburse the Sales Agents for their
reasonable and documented out-of-pocket expenses,
including fees and disbursements of their counsel, in an amount not
to exceed $50,000 initially, plus an additional amount of up to
$7,500 per annum thereafter. Because there is no minimum
offering amount required as a condition to close this offering, the
actual total public offering amount, commissions and proceeds to
us, if any, are not determinable at this time. In connection with
the sale of the common stock on our behalf, the Sales Agents will
be deemed to be “underwriters” within the meaning of
the Securities Act, and the compensation of the Sales Agents will
be deemed to be underwriting commissions or discounts. We have
agreed to provide indemnification and contribution to the Sales
Agents with respect to certain civil liabilities, including
liabilities under the Securities Act. We estimate that the total
expenses for the offering, excluding compensation payable to the
Sales Agents under the terms of the Sales Agreement, will be
approximately $250,000.
The
offering of our common stock pursuant to the Sales Agreement will
terminate upon the earlier of (i) the sale of all of our common
stock provided for in this prospectus, or (ii) termination of the
Sales Agreement as permitted therein.
To
the extent required by Regulation M under the Exchange Act, the
Sales Agents will not engage in any market making activities
involving our common stock while the offering is ongoing under this
prospectus.
The
Sales Agents and their affiliates have provided, and may in the
future provide, various investment banking and other financial
services for us. They have received, or may in the future receive,
customary fees and commissions for these transactions.
LEGAL MATTERS
Cooley
LLP, San Diego, California, has passed upon the validity of the
common stock offered by this prospectus. The Sales Agents are being
represented in connection with this offering by Duane Morris LLP,
New York, New York.
EXPERTS
The
financial statements, schedule and management’s assessment of
the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the
registration statement of which this prospectus is a part have been
so incorporated by reference in reliance upon the reports of Marcum
LLP, independent registered public accountants, upon the authority
of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus, which constitutes a part of the registration statement
on Form S-3 we filed with the SEC under the Securities Act, does
not contain all of the information set forth in the registration
statement or the exhibits which are part of the registration
statement. For further information with respect to us and the
securities offered by this prospectus, we refer you to the
registration statement and the exhibits filed as part of the
registration statement. Neither we nor any agent, underwriter or
dealer has authorized any person to provide you with information
that is different from that contained in this prospectus, any
applicable prospectus supplement or in any free writing prospectus
we may authorize to be delivered or made available to you. We take
no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information
contained in this prospectus, any applicable prospectus supplement
or any related free writing prospectus is accurate on any date
subsequent to the date set forth on the front of the document or
that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by
reference, even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered, or
securities are sold, on a later date.
We file
annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the
public at the SEC's website at www.sec.gov. You may obtain a copy
of these filings at no cost by writing us at the following address:
ChromaDex Corporation, 10900 Wilshire Blvd., Suite 600, Los
Angeles, California 90024, Attention: Corporate Secretary. We also
maintain a website at www.chromadex.com. The information contained
in, or that can be accessed through, our website is not part of
this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” into this
prospectus the information we file with them, which means that we
can disclose important information to you by referring you to those
documents. In accordance with Rule 412 of the Securities Act, any
statement contained or incorporated by reference in this prospectus
shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein, or in
any subsequently filed document which also is incorporated by
reference herein, modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
prospectus.
We
incorporate by reference the documents listed below:
●
our Annual Report
on Form 10-K for the fiscal year ended December 31, 2019, filed
with the SEC on March 10, 2020, as amended on May 18,
2020;
●
the information
specifically incorporated by reference into our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019 from our
definitive proxy statement on Schedule 14A (other than information
furnished rather than filed) filed with the SEC on April 21,
2020;
●
our Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2020,
filed with the SEC on May 18, 2020;
●
our Current Reports
on Form 8-K (other than information furnished rather than filed)
filed with the SEC on January 10, 2020, April 29, 2020, and May 7,
2020; and
●
the description of
our Common Stock in our registration statement on Form 8-A filed
with the SEC on April 21, 2016, including any amendments or reports
filed for the purpose of updating such description.
We also
incorporate by reference into this prospectus all documents (other
than Current Reports furnished under Item 2.02 or Item 7.01 of Form
8-K and exhibits filed on such form that are related to such items)
that are subsequently filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the securities made by this
prospectus (including documents filed after the date of the initial
registration statement of which this prospectus is a part and prior
to the effectiveness of the registration statement).
You may
request a copy of these filings at no cost, by contacting us at the
following address or telephone number:
ChromaDex
Corporation
10900
Wilshire Blvd., Suite 600
Los
Angeles, California 90024
Attention:
Corporate Secretary
(310)
388-6706
-9-
$50,000,000
Common Stock
__________
PROSPECTUS
__________
|
B. Riley FBR
|
Raymond James
|
, 2020
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other
than underwriting discounts and commissions, payable by us in
connection with the offering of the securities being
registered. All the amounts shown are estimates, except for
the SEC registration fee.
|
SEC registration fee
|
$16,225
|
|
Accounting fees and
expenses
|
*
|
|
Legal fees and
expenses
|
*
|
|
Transfer agent fees
and expenses
|
*
|
|
Trustee fees and
expenses
|
*
|
|
Printing and
miscellaneous expenses
|
*
|
|
|
|
|
Total
|
$*
|
*
These fees are
calculated based on the securities offered and the number of
issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law (the
“DGCL”) empowers a Delaware corporation to indemnify
any persons who are, or are threatened to be made, parties to any
threatened, pending, or completed legal action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer
or director of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee, or
agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys’ fees), judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit, or
proceeding, provided that such officer or director acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the corporation’s best interests, and, for
criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is
adjudged to be liable to the corporation in the performance of his
duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such
officer or director actually and reasonably incurred.
Our
certificate of incorporation and bylaws provide that we will
indemnify our directors and officers to the fullest extent
permitted by Delaware law, except that no indemnification will be
provided to a director, officer, employee, or agent if the
indemnification sought is in connection with a proceeding initiated
by such person without the authorization of our board of directors.
The bylaws also provide that the right of directors and officers to
indemnification shall be a contract right and shall not be
exclusive of any other right now possessed or hereafter acquired
under any statute, provision of the certificate of incorporation,
bylaw, agreement, vote of stockholders or disinterested directors
or otherwise. The bylaws also permit us to secure insurance on
behalf of any officer, director, employee, or other agent for any
liability arising out of his or her actions in such capacity,
regardless of whether the bylaws would permit indemnification of
any such liability.
Section
102(b)(7) of the DGCL provides that directors shall not be
personally liable for monetary damages for breaches of their
fiduciary duty as directors except for (i) breaches of their duty
of loyalty to us or our stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or knowing
violations of law, (iii) certain transactions under Section 174 of
the DGCL (unlawful payment of dividends or unlawful stock purchases
or redemptions), or (iv) transactions from which a director derives
an improper personal benefit. Our certificate of incorporation
includes such a provision. The effect of this provision is to
eliminate the personal liability of directors for monetary damages
or actions involving a breach of their fiduciary duty of care,
including any actions involving gross negligence.
In
addition, we have entered into indemnification agreements with our
directors and officers that require us, among other things, to
indemnify them against certain liabilities that may arise by reason
of their status or service, so long as the indemnitee acted in good
faith and in a manner the indemnitee reasonably believed to be in
or not opposed to the best interests of us, and, with respect to
any criminal action or proceeding, the indemnitee had no reasonable
cause to believe his or her conduct was unlawful. We also maintain
director and officer liability insurance to insure our directors
and officers against the cost of defense, settlement or payment of
a judgment under specified circumstances.
II-1
Item 16. Exhibits
|
Exhibit
Number
|
|
Description of Document
|
|
|
1.1
|
#
|
|
Form of
Underwriting Agreement.
|
|
|
|
|
|
|
|
|
At
Market Issuance Sales Agreement, dated as of June 12, 2020, by and
among the Registrant, B. Riley FBR, Inc. and Raymond James &
Associates, Inc.
|
|
|
|
|
|
|
|
*
|
|
Agreement
and Plan of Merger, dated as of May 21, 2008, by and among Cody
Resources, Inc., CDI Acquisition, Inc. and ChromaDex, Inc. as
amended June 10, 2008 (incorporated by reference to Exhibit 2.1 to
the Registrant’s Current Report on Form 8-K filed with the
SEC on June 24, 2008).
|
|
|
|
|
|
|
|
*+
|
|
Asset
Purchase Agreement, dated as of August 21, 2017, by and among the
Registrant, Covance Laboratories Inc., ChromaDex, Inc. and
ChromaDex Analytics, Inc. (incorporated by reference to Exhibit 2.2
to the Registrant’s Quarterly Report on Form 10-Q filed with
the SEC on November 9, 2017).
|
|
|
|
|
|
|
|
*
|
|
Amendment
to Asset Purchase Agreement, dated as of September 5, 2017, by and
among the Registrant, Covance Laboratories Inc., ChromaDex, Inc.
and ChromaDex Analytics, Inc. (incorporated by reference to Exhibit
2.2 to the Registrant’s Quarterly Report on Form 10-Q filed
with the SEC on November 9, 2017).
|
|
|
|
|
|
|
|
|
|
Amended
and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant’s
Annual Report on Form 10-K filed with the Commission on March 15,
2018).
|
|
|
|
|
|
|
|
|
|
Certificate
of Amendment to the Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed with the SEC on April 12,
2016).
|
|
|
|
|
|
|
|
|
|
Bylaws
of the Registrant (incorporated by reference to Exhibit 3.2 to the
Registrant’s Current Report on Form 8-K filed with the SEC on
June 24, 2008).
|
|
|
|
|
|
|
|
|
|
Amendment
to Bylaws of the Registrant (incorporated by reference to Exhibit
3.1 to the Registrant’s Current Report on Form 8-K filed with
the SEC on July 19, 2016).
|
|
|
|
|
|
|
|
4.1
|
|
|
Reference
is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
|
|
|
|
|
|
|
|
|
Form of
Stock Certificate representing shares of the Registrant’s
Common Stock (incorporated by reference to Exhibit 4.1 of the
Registrant’s Annual Report on Form 10-K filed with the SEC on
April 3, 2009).
|
|
|
|
|
|
|
|
|
|
Form of
Stock Certificate representing shares of the Registrant’s
Common Stock (new design effective as of January 1, 2016,
incorporated by reference to Exhibit 4.4 to the Registrant’s
Annual Report on Form 10-K filed with the SEC on March 17,
2016).
|
|
|
|
|
|
|
|
|
|
Form of
Stock Certificate representing shares of ChromaDex Corporation
Common Stock (new design effective as of December 10, 2018,
incorporated by reference to Exhibit 4.5 to the Registrant’s
Annual Report on Form 10-K filed with the SEC on March 07,
2019).
|
|
|
|
|
|
|
|
|
|
Investor’s
Rights Agreement, effective as of December 31, 2005, by and between
the Registrant and The University of Mississippi Research
Foundation (incorporated by reference to Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed with the SEC on
June 24, 2008).
|
|
|
|
|
|
|
|
|
|
Tag-Along
Agreement, effective as of December 31, 2005, by and among the
Registrant, Frank Louis Jaksch, Snr. & Maria Jaksch, Trustees
of the Jaksch Family Trust, Margery Germain, Lauren Germain, Emily
Germain, Lucie Germain, Frank Louis Jaksch, Jr., and the University
of Mississippi Research Foundation (incorporated by reference to
Exhibit 4.2 to the Registrant’s Current Report on Form 8-K
filed with the SEC on June 24, 2008).
|
|
II-2
|
|
|
|
|
|
|
|
Registration Rights Agreement, dated as of May 9, 2019, by and among the Registrant and the parties thereto (incorporated by reference to Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on May 10, 2019). | |
|
|
|
|
|
|
|
|
Registration Rights Agreement, dated as of August 15, 2019, by and among the Registrant and the parties thereto (incorporated by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on August 15, 2019). | |
|
|
|
|
|
|
|
|
Registration Rights Agreement, dated as of April 27, 2020, by and among the Registrant and the parties thereto (incorporated by reference to Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 29, 2020). | |
|
|
|
|
|
|
|
|
Form of
Indenture, by and between the Registrant and one or more trustees
to be named.
|
|
|
|
|
|
|
|
4.11
|
#
|
|
Form of
Senior note.
|
|
|
|
|
|
|
4.12
|
#
|
|
Form of
Subordinated Note.
|
|
|
|
|
|
|
|
|
Form of
Common Stock Warrant Agreement and Warrant
Certificate.
|
|
|
|
|
|
|
|
|
|
Form of
Debt Securities Warrant Agreement and Warrant
Certificate.
|
|
|
|
|
|
|
|
|
|
Opinion
of Cooley LLP.
|
|
|
|
|
|
|
|
|
|
Consent
of Marcum LLP, Independent Registered Public Accounting
Firm.
|
|
|
|
|
|
|
|
|
|
Consent
of Cooley LLP (included in Exhibit 5.1).
|
|
|
|
|
|
|
|
|
|
Power
of Attorney (included on signature page).
|
|
|
|
|
|
|
|
25.1
|
#
|
|
Statement
of Eligibility of Trustee under the Indenture.
|
#
To be filed by
amendment or by a report filed under the Exchange Act and
incorporated herein by reference, if applicable.
*
Schedules have been
omitted pursuant to Item 601(a)(5) of Regulation S-K. The
Registrant undertakes to furnish supplemental copies of any of such
omitted schedules upon request by the SEC.
+
This Exhibit has
been granted confidential treatment and has been filed separately
with the SEC. The confidential portions of this Exhibit have been
omitted and are marked by an
asterisk.
Item 17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
To include any
prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) of this section
do not apply if the registration statement is on Form S-3 and the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement or are contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of this registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
II-3
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
(i)
Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of
the Securities Act shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act to any purchaser in the initial distribution of
the securities, the undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser: (i) any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant; (iii) the portion
of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or
its securities provided by or on behalf of the undersigned
registrant; and (iv) any other communication that is an offer
in the offering made by the undersigned registrant to the
purchaser.
(6) That,
for purposes of determining any liability under the Securities Act,
each filing of the registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering
thereof.
(7) To
file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Trust Indenture
Act.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Los Angeles, State of California, on the 12th day of June,
2020.
|
|
CHROMADEX CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Robert Fried
|
|
|
|
Robert
Fried
|
|
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, THAT each person whose signature
appears below constitutes and appoints Robert Fried and Kevin M.
Farr, and each of them, as his or her true and lawful
attorney-in-fact and agent, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments, exhibits
thereto and other documents in connection therewith) to this
Registration Statement and any subsequent registration statement
filed by the Registrant pursuant to Rule 462(b) of the Securities
Act of 1933, as amended, which relates to this Registration
Statement, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
|
|
/s/ Robert
Fried
Robert
Fried
|
Chief Executive Officer and
Director
(Principal Executive Officer)
|
June
12, 2020
|
|
/s/ Kevin M.
Farr
Kevin
M. Farr
|
Chief
Financial Officer
(Principal Financial and Accounting Officer)
|
June
12, 2020
|
|
/s/ Frank L.
Jaksch, Jr.
Frank
L. Jaksch, Jr.
|
Executive
Chairman of the Board
|
June
12, 2020
|
|
/s/ Jeff
Baxter
Jeff
Baxter
|
Director
|
June
12, 2020
|
|
/s/ Stephen
Block
Stephen
Block
|
Director
|
June
12, 2020
|
|
/s/ Kurt
Gustafson
Kurt
Gustafson
|
Director
|
June
12, 2020
|
|
/s/ Tony
Lau
Tony
Lau
|
Director
|
June
12, 2020
|
|
/s/ Steven
Rubin
Steven
Rubin
|
Director
|
June
12, 2020
|
|
/s/ Wendy
Yu
Wendy
Yu
|
Director
|
June
12, 2020
|
II-5
Exhibit
1.2
EXECUTION COPY
CHROMADEX CORPORATION
Common
Stock
(par
value $0.001 per share)
At
Market Issuance Sales Agreement
June
12, 2020
B.
Riley FBR, Inc.
299
Park Avenue, 7th Floor
New
York, NY 10171
Raymond
James & Associates, Inc.
277
Park Avenue, Suite 410
New
York, NY 10172
Ladies
and Gentlemen:
ChromaDex
Corporation, a Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with B. Riley
FBR, Inc. (“BRFBR”) and Raymond James
& Associates, Inc. (“RJA”, each of BRFBR and
RJA an “Agent”, collectively, the
“Agents”) as
follows:
1. Issuance and Sale of Shares.
The Company agrees that, from time to time during
the
term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through or to the Agents,
as sales agent and/or principal, shares (the “Placement
Shares”), of the Company’s common
stock, par value $0.001 per share (the “Common Stock”);
provided however, that in
no event shall the Company issue or sell through the Agents such
number of Placement Shares that (a) exceeds the number of shares or
dollar amount of Common Stock registered on the effective
Registration Statement (as defined below) pursuant to which the
offering is being made or (b) exceeds the number of shares or
dollar amount registered on the Prospectus Supplement (as defined
below) (the lesser of (a) and (b) the “Maximum Amount”). The
Company agrees that whenever it determines to sell Placement Shares
directly to the Agents as principal it will expressly authorize the
Agents to purchase Placement Shares for its own account as
principal in accordance with Section 3(i) hereof.
Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth
in this Section 1
on the number or dollar amount of Placement Shares issued and sold
under this Agreement shall be the sole responsibility of the
Company and that the Agents shall have no obligation in connection
with such compliance. The issuance and sale of Placement Shares
through or to the Agents will be effected pursuant to the
Registration Statement (as defined below), although nothing in this
Agreement shall be construed as requiring the Company to use the
Registration Statement to issue any Placement Shares.
The
Company shall file, in accordance with the provisions of the
Securities Act of 1933, as amended and the rules and regulations
thereunder (the “Securities Act”), with
the Securities and Exchange Commission (the “Commission”), a
registration statement on Form S-3, including a base prospectus
relating to the offer and sale of some or all of the Placement
Shares, and which incorporates by reference documents that the
Company has filed or will file in accordance with the provisions of
the Securities Exchange Act of 1934, as amended and the rules and
regulations thereunder (the “Exchange Act”). The
Company has prepared a prospectus included as part of such
registration statement specifically relating to the Placement
Shares (the “ATM
Prospectus”), and will, if necessary, prepare a
prospectus supplement to the base prospectus included as part of
such registration statement specifically relating to the Placement
Shares (a “Prospectus Supplement”).
The Company will furnish to the Agents, for use by the Agents,
copies of the base prospectus and ATM Prospectus included as part
of such registration statement, as supplemented by any Prospectus
Supplement, relating to the offer and sale of the Placement Shares.
Except where the context otherwise requires, such registration
statement, and any post-effective amendment thereto, including all
documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus
(as defined below) subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act or deemed to be a part of
such registration statement pursuant to Rule 430B of the
Securities Act, or any subsequent registration statement on Form
S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by
the Company to cover any Placement Shares, is herein called the
“Registration
Statement.” The base prospectus and ATM Prospectus
relating to the offer and sale of the Placement Shares, including
all documents incorporated or deemed incorporated therein by
reference to the extent such information has not been superseded or
modified in accordance with Rule 412 under the Securities Act (as
qualified by Rule 430B(g) of the Securities Act), included in the
Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such base prospectus, ATM
Prospectus and/or Prospectus Supplement have most recently been
filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act, together with any then issued Issuer Free
Writing Prospectus(es) (as defined below) is herein called the
“Prospectus.” Any
reference herein to the Registration Statement, the Prospectus or
any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated or deemed to be incorporated by
reference therein, and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein (the
“Incorporated
Documents”).
For
purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system, or if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively,
“EDGAR”).
2. Placements. Each time that the
Company wishes to issue and sell Placement Shares through the
Agents acting as sales agent or directly to the Agents acting as
principal hereunder (each, a “Placement”), it will
notify an Agent (the “Designated Agent”) by
electronic mail (or other method mutually agreed to in writing by
the parties) of the number of Placement Shares, the time period
during which sales are requested to be made, whether the Designated
Agent may purchase shares for its own account as principal, any
limitation on the number of Placement Shares that may be sold in
any one day and any minimum price below which sales may not be made
(a “Placement
Notice”), the form of which is attached hereto as
Schedule 1. The
Placement Notice shall originate from any of the individuals from
the Company set forth on Schedule 3 (with a copy to each
of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the
Designated Agent set forth on Schedule 3, as such
Schedule 3 may be
amended from time to time. The Placement Notice shall be effective
immediately upon receipt by the Designated Agent unless and until
(i) the Designated Agent declines in writing, by any means provided
for under Section
14, to accept the terms contained therein for any reason, in
its sole discretion, (ii) the entire
amount of the Placement Shares thereunder has been sold, (iii) the
Company amends, supersedes, suspends or terminates the Placement
Notice, which suspension and termination rights may be exercised by
the Company in its sole discretion, or (iv) this Agreement has been
terminated under the provisions of Section 13. The amount of any
discount, commission or other compensation to be paid by the
Company to the Designated Agent in connection with the sale of the
Placement Shares shall be calculated in accordance with the terms
set forth in Schedule
2. It is expressly acknowledged and agreed that neither the
Company nor the Designated Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to the
Designated Agent and the Designated Agent does not decline such
Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a
conflict between the terms of Sections 2 or 3 of this Agreement and the
terms of a Placement Notice, the terms of the Placement Notice will
control.
3. Sale of Placement Shares by the
Agents.
(i) Subject to the
terms and conditions of this Agreement, for the period specified in
a Placement Notice, the Designated Agent will use its commercially
reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and
regulations and the rules of the Nasdaq Capital Market (the
“Exchange”), to sell the
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Designated
Agent will provide written confirmation to the Company no later
than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to the
Designated Agent pursuant to Section 2 with respect to such
sales, and the Net Proceeds (as defined below) payable to the
Company, with an itemization of the deductions made by the
Designated Agent (as set forth in Section 5(b)) from the gross
proceeds that it receives from such sales. Subject to the terms of
a Placement Notice, the Designated Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415(a)(4) of the Securities Act.
“Trading
Day” means any day on which shares of Common Stock are
purchased and sold on the Exchange.
(ii) During
the term of this Agreement, neither Agent nor any of their
affiliates or subsidiaries shall, for its own account, engage in
(i) any short sale of any security of the Company, (ii) any sale of
any security of the Company that the Agents do not own or any sale
which is consummated by the delivery of a security of the Company
borrowed by, or for the account of, the Agents, or (iii) any market
making, bidding, purchasing, stabilization or other trading
activity with regard to the Common Stock, or attempting to induce
another person to do any of the foregoing, if such activity would
be prohibited under applicable law. Neither Agent nor any of their
affiliates or subsidiaries shall engage in any proprietary trading
or trading for the Agent’s (or its affiliates’ or
subsidiaries’) own account. Notwithstanding the foregoing,
these restrictions shall not apply to bona fide transactions
executed by the Agents in the furtherance of the distribution
contemplated hereunder or on behalf and at the direction of any
third party customer account.
4. Suspension of Sales. The
Company or the Designated Agent may, upon notice to the other party
in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such
correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of
the other party set forth on Schedule 3), suspend any sale
of Placement Shares (a “Suspension”);
provided, however, that
such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. While a Suspension is in
effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the
delivery of certificates, opinions, or comfort letters to the
Agents, shall be waived. Each of the parties agrees that no such
notice under this Section
4 shall be effective against any other party unless it is
made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time.
5. Sale and Delivery to the Designated
Agent; Settlement.
a. Sale of Placement Shares. On
the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the
Designated Agent’s acceptance of the terms of a Placement
Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in
accordance with the terms of this Agreement, the Designated Agent,
for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules
and regulations and the rules of the Exchange to sell such
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that the
Designated Agent will be successful in selling Placement Shares,
(ii) the Designated Agent will incur no liability or obligation to
the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by the
Designated Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the
rules of the Exchange to sell such Placement Shares as required
under this Agreement and (iii) the Designated Agent shall be under
no obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the
Designated Agent and the Company.
b. Settlement of Placement Shares.
Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the
second (2nd) Trading Day (or
such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a
“Settlement
Date”). The Designated Agent shall notify the Company
in writing of each sale of Placement Shares no later than opening
day following the Trading Day that the Designated Agent sold
Placement Shares. The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by the Designated
Agent, after deduction for (i) the Designated Agent’s
commission, discount or other compensation for such sales payable
by the Company pursuant to Section 2 hereof, and (ii) any
transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
c. Delivery of Placement Shares.
On or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Placement Shares
being sold by crediting the Designated Agent’s or its
designee’s account (provided the Designated Agent shall have
given the Company written notice of such designee and such
designee’s account information at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement
Date, the Designated Agent will deliver the related Net Proceeds in
same day funds to an account designated by the Company on, or prior
to, the Settlement Date. The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its obligation to
deliver Placement Shares on a Settlement Date through no fault of
the Designated Agent, then in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will
(i) hold the Designated Agent harmless against any loss, claim,
damage, or reasonable, documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company or its transfer
agent (if applicable) and (ii) pay to the Designated Agent
(without duplication) any commission, discount, or other
compensation to which it would otherwise have been entitled absent
such default.
d. Limitations on Offering Size.
Under no circumstances shall the Company cause or request the offer
or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or dollar amount of
Placement Shares sold pursuant to this Agreement would exceed the
lesser of (A) together with all sales of Placement Shares under
this Agreement, the Maximum Amount, (B) the amount available for
offer and sale under the currently effective Registration Statement
and (C) the amount authorized from time to time to be issued and
sold under this Agreement by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized
executive committee, and notified to the Designated Agent in
writing. Under no circumstances shall the Company cause or request
the offer or sale of any Placement Shares pursuant to this
Agreement at a price lower than the minimum price authorized from
time to time by the Company’s board of directors, a duly
authorized committee thereof or a duly authorized executive
committee, and notified to the Designated Agent in
writing.
6. Representations and Warranties of the
Company. Except as disclosed in the Registration Statement
or Prospectus (including the Incorporated Documents), the Company
represents and warrants to, and agrees with the Agents that as of
the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or agreement
specifies a different date or time:
a. Registration Statement and
Prospectus. Assuming no act or omission on the part of the
Agents that would make this statement untrue, the transactions
contemplated by this Agreement meet the requirements for and comply
with the conditions for the use of Form S-3 under the
Securities Act. The Registration Statement has been filed with the
Commission and will be effective under the Securities Act at each
Applicable Time. The Prospectus will name the Agents as the agents
in the section entitled “Plan of Distribution.” The
Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration
Statement, or threatening or instituting proceedings for that
purpose. The Registration Statement and the offer and sale of
Placement Shares as contemplated hereby meet the requirements of
Rule 415 under the Securities Act and comply in all material
respects with said Rule. Any 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 have been so described or filed, as
applicable. Copies of the Registration Statement, the Prospectus,
and any such amendments or supplements and all documents
incorporated by reference therein that were filed with the
Commission on or prior to the date of this Agreement have been
delivered, or are available through EDGAR, to the Agents and its
counsel. The Company has not distributed and, prior to the later to
occur of each Settlement Date and completion of the distribution of
the Placement Shares, will not distribute any offering material in
connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus to which the Agents have consented, which
consent will not be unreasonably withheld or delayed, or that is
required by applicable law or the listing maintenance requirements
of the Exchange. The Common Stock is currently quoted on the
Exchange under the trading symbol “CDXC.” The Company
has not, in the 12 months preceding the date hereof, received
notice from the Exchange to the effect that the Company is not in
compliance with the listing or maintenance requirements of the
Exchange. To the Company’s knowledge, it is in compliance
with all such listing and maintenance requirements.
b. No Misstatement or Omission. At
each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects
with the requirements of the Securities Act. The Registration
Statement, when it becomes effective, will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendment and
supplement thereto, on the date thereof and at each Applicable Time
(defined below), did not or will not include an untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The documents incorporated by
reference in the Prospectus or any Prospectus Supplement did not,
and any further documents filed and incorporated by reference
therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated in such document or necessary to make the
statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply
to, and the Company neither makes nor shall make any representation
or warranty in respect of, statements in, or omissions from, any
such document made in reliance upon, and in conformity with,
information furnished to the Company by the Agents specifically for
use in the preparation thereof.
c. Conformity with Securities Act and
Exchange Act. The Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement
thereto, and the Incorporated Documents, when such documents were
or are filed with the Commission under the Securities Act or the
Exchange Act or became or become effective under the Securities
Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable.
d. Financial Information. The
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial
position of the Company and the Subsidiaries (as defined below) as
of the dates indicated and the consolidated results of operations,
cash flows and changes in stockholders’ equity of the Company
and the Subsidiaries for the periods specified (subject, in the
case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the
aggregate) and have been prepared in compliance with the published
requirements of the Securities Act and Exchange Act, as applicable,
and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a
consistent basis (except (i) for such adjustments to accounting
standards and practices as are noted therein and (ii) in the case
of unaudited interim financial statements, to the extent they may
exclude footnotes or may be condensed or summary statements) during
the periods involved; the other financial data with respect to the
Company and the Subsidiaries contained or incorporated by reference
in the Registration Statement and the Prospectus, are accurately
and fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statement, or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off balance sheet obligations),
not described in the Registration Statement, and the Prospectus
which are required to be described in the Registration Statement or
Prospectus; and all disclosures contained or incorporated by
reference in the Registration Statement and the Prospectus, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
in all material respects with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Securities Act, to the extent
applicable.
e. Conformity with EDGAR Filing.
The Prospectus delivered to the Agents for use in connection with
the sale of the Placement Shares pursuant to this Agreement will be
identical to the versions of the Prospectus created to be
transmitted to the Commission for filing via EDGAR, except to the
extent permitted by Regulation S-T.
f. Organization. The Company and
any subsidiary that is a significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated by the
Commission) (each, a “Subsidiary,”
collectively, the “Subsidiaries”), are, and
will be, duly organized, validly existing in good standing under
the laws of their respective jurisdictions of incorporation or
organization. The Company and the Subsidiaries are duly licensed or
qualified as a foreign corporation for transaction of business and
in good standing under the laws of each other jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such license or qualification,
and have all corporate power and authority necessary to own or hold
their respective properties and to conduct their respective
businesses as described in the Registration Statement and the
Prospectus, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or
in the aggregate, result in a material adverse effect on the
assets, business, operations, earnings, properties, financial
condition, prospects, stockholders’ equity or results of
operations of the Company and the Subsidiaries taken as a whole, or
prevent the consummation of the transactions contemplated hereby (a
“Material Adverse
Effect”).
g. Subsidiaries. The Company owns
directly or indirectly, all of the equity interests of the
Subsidiaries free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other restriction, and all
the equity interests of the Subsidiaries are validly issued and are
fully paid, nonassessable and free of preemptive and similar
rights. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recently ended fiscal year
and other than (i) those subsidiaries not required to be listed on
Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act
and (ii) those subsidiaries formed since the last day of the most
recently ended fiscal year.
h. No Violation or Default.
Neither the Company nor any Subsidiary is (i) in violation of
its charter or by-laws or similar organizational documents; (ii) in
default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other similar agreement or instrument to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company
or any Subsidiary is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority having
jurisdiction over the Company or such Subsidiary, as the case may
be, except, in the case of each of clauses (ii) and (iii) above,
for any such violation or default that would not, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect. To the Company’s knowledge, no other party
under any material contract or other agreement to which it or any
Subsidiary is a party is in default in any respect thereunder where
such default would result in a Material Adverse
Effect.
i. No Material Adverse Effect.
Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration
Statement and Prospectus, there has not been (i) any Material
Adverse Effect, or any development that would reasonably be
expected to have a Material Adverse Effect, (ii) any transaction
which is material to the Company and the Subsidiaries taken as a
whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or the Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any material change in the
capital stock (other than (A) the grant of additional options or
other securities exercisable for, or convertible into, Common Stock
under the Company’s existing stock option or incentive plans,
(B) changes in the number of shares of outstanding Common Stock of
the Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, or the vesting of
restricted stock units, (C) as a result of the issuance of
Placement Shares, (D) any repurchases of capital stock of the
Company, (E) as described in a proxy statement filed on Schedule
14A or a Registration Statement on Form S-4, or (F) otherwise
publicly announced) or outstanding long-term indebtedness of the
Company or the Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any Subsidiary, other than in each case above in the ordinary
course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document incorporated by
reference therein).
j. Capitalization. The issued and
outstanding shares of capital stock of the Company have been
validly issued, are fully paid and non-assessable and, other than
as disclosed in the Registration Statement or the Prospectus, are
not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein
(other than (i) the grant of additional options or other securities
exercisable for, or convertible into, Common Stock under the
Company’s existing stock option or incentive plans, (ii)
changes in the number of shares of outstanding Common Stock of the
Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, or the vesting of
restricted stock units, (iii) as a result of the issuance of
Placement Shares, or (iv) any repurchases of capital stock of the
Company) and such authorized capital stock conforms to the
description thereof set forth in the Registration Statement and the
Prospectus. The description of the Common Stock in the Registration
Statement and the Prospectus is complete and accurate in all
material respects. Except as disclosed in or contemplated by the
Registration Statement or the Prospectus, as of the date referred
to therein, the Company did not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or exchangeable for, or
any contracts or commitments to issue or sell, any shares of
capital stock or other securities.
k. S-3 Eligibility. (i) At the
time of filing the Registration Statement and (ii) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form
S-3 under the Securities Act, including compliance with General
Instruction I.B.1 of Form S-3, as applicable. The Company is not a
shell company (as defined in Rule 405 under the Securities Act) and
has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time
previously, has filed current Form 10 information (as defined in
General Instruction I.B.6 of Form S-3) with the Commission at least
12 calendar months previously reflecting its status as an entity
that is not a shell company.
l. Authorization; Enforceability.
The Company has full corporate power and authority to enter into
this Agreement and perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except to the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification and contribution
provisions of Section
11 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof.
m. Authorization of Placement
Shares. The Placement Shares, when issued and delivered
pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly
authorized executive committee, against payment of consideration
therefor as provided herein, will be duly and validly authorized
and issued and fully paid and nonassessable, free and clear of any
pledge, lien, encumbrance, security interest or other claim (other
than any pledge, lien, encumbrance, security interest or other
claim arising from an act or omission of the Agents or a
purchaser), including any statutory or contractual preemptive
rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the
Exchange Act. The Placement Shares, when issued, will conform in
all material respects to the description thereof set forth in or
incorporated into the Prospectus.
n. No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or any
governmental or regulatory authority having jurisdiction over the
Company is required for the execution, delivery and performance by
the Company of this Agreement, and the issuance and sale by the
Company of the Placement Shares as contemplated hereby, except for
such consents, approvals, authorizations, orders and registrations
or qualifications (i) as may be required under applicable state
securities laws or by the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) or the Exchange,
including any notices that may be required by the Exchange, in
connection with the sale of the Placement Shares by the Agents,
(ii) as may be required under the Securities Act and (iii) as have
been previously obtained by the Company.
o. No Preferential Rights. (i) No
person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any shares of Common Stock or shares of any other
capital stock or other securities of the Company (other than upon
the exercise of options or warrants to purchase Common Stock, the
vesting of restricted stock units or upon the exercise or vesting
of options or other awards that may be granted from time to time
under the Company’s stock option plan), (ii) no Person has
any preemptive rights, rights of first refusal, or any other rights
(whether pursuant to a “poison pill” provision or
otherwise) to purchase any shares of Common Stock or shares of any
other capital stock or other securities of the Company from the
Company which have not been duly waived with respect to the
offering contemplated hereby, (iii) no Person has the right to act
as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Common Stock, and (iv) no
Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any Common Stock or
shares of any other capital stock or other securities of the
Company, or to include any such shares or other securities in the
Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as
contemplated thereby or otherwise, except in each case for such
rights as have been waived on or prior to the date
hereof.
p. Independent Registered Public
Accounting Firm. Marcum LLP (the “Accountant”), whose
report on the consolidated financial statements of the Company is
filed with the Commission as part of the Company’s most
recent Annual Report on Form 10-K filed with the Commission and
incorporated into the Registration Statement, is and, during the
periods covered by its report, was an independent registered public
accounting firm within the meaning of the Securities Act and the
Public Company Accounting Oversight Board (United States). To the
Company’s knowledge, the Accountant is not in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley Act”) with
respect to the Company.
q. Enforceability of Agreements.
All agreements between the Company and third parties that are
required under the Exchange Act or the Securities Act to be filed
as exhibits to the Company’s most recent Annual Report on
Form 10-K or the Registration Statement, other than such agreements
that have expired by their terms or whose termination is disclosed
in documents filed by the Company on EDGAR, are valid and binding
obligations of the Company and, to the Company’s knowledge,
enforceable in accordance with their respective terms, except to
the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of
certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, and except
for any unenforceability that, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect.
r. No Litigation. There are no
legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any Subsidiary is a
party or to which any of the properties of the Company or any
Subsidiary is subject (i) other than proceedings accurately
described in all material respects in the Prospectus, proceedings
that, if determined adversely to the Company or any Subsidiary,
would not reasonably be expected to result in a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Prospectus or (ii) that are required to be described in the
Registration Statement or the Prospectus and are not so
described.
s. Licenses and Permits. The
Company and the Subsidiaries possess or have obtained, all
licenses, certificates, consents, orders, approvals, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as currently conducted, as described in
the Registration Statement and the Prospectus (the
“Permits”), except where
the failure to possess, obtain or make the same would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any
Subsidiary has received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason
to believe that such Permit will not be renewed in the ordinary
course, except where the failure to obtain any such renewal would
not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
t. No Material Defaults. Neither
the Company nor any Subsidiary has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
would reasonably be expected to result in a Material Adverse
Effect. The Company has not filed a report pursuant to Section
13(a) or 15(d) of the Exchange Act since the filing of its last
Annual Report on Form 10-K, indicating that it (i) has failed to
pay any dividend or sinking fund installment on preferred stock or
(ii) has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which
defaults, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.
u. Certain Market Activities.
Neither the Company, nor any Subsidiary, nor, to the knowledge of
the Company, any of their respective directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or would cause or result in,
under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares.
v. Broker/Dealer Relationships.
Neither the Company nor any Subsidiary or any related entities (i)
is required to register as a “broker” or
“dealer” in accordance with the provisions of the
Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a
member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).
w. Reserved
x. Taxes. The Company and the
Subsidiaries have filed all federal, state, local and foreign tax
returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such
taxes have become due and are not being contested in good faith,
except where the failure to do so would not reasonably be expected
to result in a Material Adverse Effect. Except as otherwise
disclosed in or contemplated by the Registration Statement or the
Prospectus, no tax deficiency has been determined adversely to the
Company or any Subsidiary which has resulted in, or would
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. The Company has no knowledge of any
federal, state or other governmental tax deficiency, penalty or
assessment which has been or might be asserted or threatened
against it which would result in a Material Adverse
Effect.
y. Title to Real and Personal
Property. The Company and the Subsidiaries have good and
valid title to all items of real property and good and valid title
to all personal property described in the Registration Statement or
Prospectus as being owned by them that are material to the
businesses of the Company or such Subsidiary, in each case free and
clear of all liens, encumbrances and claims, except those that (i)
do not materially interfere with the use made and proposed to be
made of such property by the Company and the Subsidiaries or (ii)
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. Any real property described
in the Registration Statement or Prospectus as being leased by the
Company and the Subsidiaries is held by them under valid and
existing leases, except those that (A) do not materially interfere
with the use made or proposed to be made of such property by the
Company or the Subsidiaries or (B) would not, individually or in
the aggregate, reasonably be expected to result in a Material
Adverse Effect.
z. Intellectual Property. To the
Company’s knowledge, the Company and its Subsidiaries own or
possess adequate enforceable rights to use all patents, patent
applications, trademarks (both registered and unregistered), trade
names, trademark registrations, service marks, service mark
registrations, Internet domain name registrations, copyrights,
copyright registrations, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the
“Intellectual
Property”), necessary for the conduct of their
respective businesses as conducted as of the date hereof, except to
the extent that the failure to own or possess adequate rights to
use such Intellectual Property would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company and its Subsidiaries have not received any
written notice of any claim of infringement or conflict which
asserted Intellectual Property rights of others, which infringement
or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Effect. There are no pending, or to
the Company’s knowledge, threatened judicial proceedings or
interference proceedings challenging the Company’s or any its
Subsidiaries’ rights in or to or the validity of the scope of
any of the Company’s or its Subsidiaries’ patents,
patent applications or proprietary information. No other entity or
individual has any right or claim in any of the Company’s or
any of its Subsidiaries’ patents, patent applications or any
patent to be issued therefrom by virtue of any contract, license or
other agreement entered into between such entity or individual and
the Company or any Subsidiary or by any non-contractual obligation,
other than by written licenses granted by the Company or any
Subsidiary. The Company has not received any written notice of any
claim challenging the rights of the Company or its Subsidiaries in
or to any Intellectual Property owned, licensed or optioned by the
Company or any Subsidiary which claim, if the subject of an
unfavorable decision, would result in a Material Adverse
Effect.
aa. Compliance with Applicable
Laws. The Company has not been advised, and has no reason to
believe, that it is not, or that any of its Subsidiaries is not,
conducting its business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is
conducting business, except where failure to be so in compliance
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
bb. Environmental Laws. The Company
and the Subsidiaries (i) are in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses as described in the Registration Statement and the
Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability
as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
cc. Disclosure Controls. The
Company maintains a system of internal accounting controls designed
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 GAAP
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.
The Company is not aware of any material weaknesses in its internal
control over financial reporting (other than as set forth in the
Registration Statement or the Prospectus). Since the date of the
latest audited financial statements of the Company included in the
Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting (other
than as set forth in the Registration Statement or the Prospectus).
The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) that comply with
the applicable requirements of the Exchange Act. The
Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of
a date within 90 days prior to the filing date of the
Company’s Annual Report on Form 10-K for the fiscal year most
recently ended (such date, the “Evaluation Date”). The
Company presented in its Annual Report on Form 10-K for the
fiscal year most recently ended the conclusions of the certifying
officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the most recent
Evaluation Date.
dd. Sarbanes-Oxley Act. There is
and has been no failure on the part of the Company or, to the
knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any applicable provisions of the Sarbanes-Oxley Act
and the rules and regulations promulgated thereunder. Each of the
principal executive officer and the principal financial officer of
the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302
and 906 of the Sarbanes-Oxley Act with respect to all reports,
schedules, forms, statements and other documents required to be
filed by it or furnished by it to the Commission during the past 12
months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial
officer” shall have the meanings given to such terms in the
Exchange Act Rules 13a-15 and 15d-15.
ee. Finder’s Fees. Neither
the Company nor any Subsidiary has incurred any liability for any
finder’s fees, brokerage commissions or similar payments in
connection with the transactions herein contemplated, except as may
otherwise exist with respect to the Agents pursuant to this
Agreement.
ff. Labor Disputes. No labor
disturbance by or dispute with employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is
threatened which would reasonably be excepted to result in a
Material Adverse Effect.
gg. Investment Company Act. Neither
the Company nor any Subsidiary is or, after giving effect to the
offering and sale of the Placement Shares, will be required to
register as an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”).
hh. Operations. The operations of
the Company and the Subsidiaries are and have been conducted at all
times in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions to which the Company or the Subsidiaries are
subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency having jurisdiction over the
Company (collectively, the “Money Laundering Laws”),
except where the failure to be in such compliance would not,
reasonably be expected to result in a Material Adverse Effect; 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 Subsidiary with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company,
threatened.
ii. Off-Balance Sheet Arrangements.
There are no transactions, arrangements and other relationships
between and/or among the Company, and/or, to the knowledge of the
Company, any of its affiliates and any unconsolidated entity,
including, but not limited to, any structured finance, special
purpose or limited purpose entity (each, an “Off-Balance Sheet
Transaction”) that would reasonably be expected to
affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those
Off-Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the
Registration Statement or the Prospectus which have not been
described as required.
jj. Underwriter Agreements. The
Company is not a party to any agreement with an agent or
underwriter for any other “at the market” or continuous
equity transaction.
kk. ERISA. To the knowledge of the
Company, (i) each material employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and
the Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred which would result in a
material liability to the Company with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption; and (iii) for each such plan that is
subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid
contributions) equals or exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions, other than, in the case of (i), (ii) and (iii) above,
as would not reasonably be expected to result in a Material Adverse
Effect.
ll. Reserved
mm. Margin Rules. Neither the
issuance, sale and delivery of the Placement Shares nor the
application of the proceeds thereof by the Company as described in
the Registration Statement and the Prospectus will violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
nn. Insurance. The Company and the
Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company and the Subsidiaries
reasonably believe are adequate for the conduct of their
business.
oo. No Improper Practices. (i)
Neither the Company nor, to the Company’s knowledge, the
Subsidiaries, nor to the Company’s knowledge, any of their
respective executive officers has, in the past five years, made any
unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law)
or made any contribution or other payment to any official of, or
candidate for, any federal, state, municipal, or foreign office or
other person charged with similar public or quasi-public duty in
violation of any law or of the character required to be disclosed
in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge,
the Subsidiaries or any affiliate of any of them, on the one hand,
and the directors, officers and stockholders of the Company or, to
the Company’s knowledge, the Subsidiaries, on the other hand,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among
the Company or the Subsidiaries or any affiliate of them, on the
one hand, and the directors, officers, stockholders or directors of
the Company or, to the Company’s knowledge, the Subsidiaries,
on the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is
not so described; (iv) there are no material outstanding loans or
advances or material guarantees of indebtedness by the Company or,
to the Company’s knowledge, the Subsidiaries to or for the
benefit of any of their respective officers or directors or any of
the members of the families of any of them; and (v) the Company has
not offered, or caused any placement agent to offer, Common Stock
to any person with the intent to influence unlawfully (A) a
customer or supplier of the Company or the Subsidiaries to alter
the customer’s or supplier’s level or type of business
with the Company or the Subsidiaries or (B) a trade journalist or
publication to write or publish favorable information about the
Company or the Subsidiaries or any of their respective products or
services, and, (vi) neither the Company nor the Subsidiaries nor,
to the Company’s knowledge, any employee or agent of the
Company or the Subsidiaries has made any payment of funds of the
Company or the Subsidiaries or received or retained any funds in
violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the
Prospectus.
pp. Status Under the Securities
Act. The Company was not and is not an ineligible issuer as
defined in Rule 405 under the Securities Act at the times specified
in Rules 164 and 433 under the Securities Act in connection
with the offering of the Placement Shares.
qq. No Misstatement or Omission in an
Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time (as
defined in Section
25 below), did not, does not and will not, through the
completion of the Placement or Placements for which such Issuer
Free Writing Prospectus is issued, include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any incorporated document deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Agents specifically for
use therein.
rr. No Conflicts. Neither the
execution of this Agreement, nor the issuance, offering or sale of
the Placement Shares, nor the consummation of any of the
transactions contemplated herein, nor the compliance by the Company
with the terms and provisions hereof will conflict with, or will
result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except (i) such conflicts, breaches or
defaults as may have been waived and (ii) such conflicts, breaches
and defaults that would not reasonably be expected to result in a
Material Adverse Effect; nor will such action result (x) in any
violation of the provisions of the organizational or governing
documents of the Company, or (y) in any material violation of
the provisions of any statute or any order, rule or regulation
applicable to the Company or of any court or of any federal, state
or other regulatory authority or other government body having
jurisdiction over the Company, except where such violation would
not reasonably be expected to result in a Material Adverse
Effect.
ss. OFAC.
(i) Neither the Company
nor any Subsidiary (collectively, the “Entity”) nor, to the
Company’s knowledge, any director, officer, employee, agent,
affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (ss), “Person”) that is, or is
owned or controlled by a Person that is:
(i) the subject of any
sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control
(“OFAC”), the United
Nations Security Council (“UNSC”), the European
Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”),
nor
(ii) located,
organized or resident in a country or territory that is the subject
of Sanctions.
(ii) The
Entity will not, directly or indirectly, knowingly use the proceeds
of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(i) to fund or
facilitate any activities or business of or with any Person or in
any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(ii) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or
otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the
Registration Statement and the Prospectus, for the past 5 years, it
has not knowingly engaged in and is not now knowingly engaged in
any dealing 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.
tt. Stock Transfer Taxes. On each
Settlement Date, all material stock transfer or other taxes (other
than income taxes) which are required to be paid by the Company in
connection with the sale and transfer of the Placement Shares to be
sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will
have been fully complied with by the Company in all material
respects.
uu. IT Systems. (i)(x) To the
knowledge of Company, there has been no security breach or other
compromise of any Company’s information technology and
computer systems, networks, hardware, software, data (including the
data of their respective customers, employees, suppliers, vendors
and any third party data maintained by or on behalf of them),
equipment or technology (collectively, “IT Systems and
Data”) and (y) the Company has not been notified of, and have
no knowledge of any event or condition that would reasonably be
expected to result in, any security breach or other compromise to
their IT Systems and Data; (ii) the Company is presently in
material compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification,
except as would not, in the case of this clause (ii), individually
or in the aggregate, have a Material Adverse Effect; and (iii) the
Company has implemented backup and disaster recovery technology
consistent with industry standards and practices.
vv. FINRA Exemption. To enable the
Agents to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company
represents that (i) within sixty days of the filing of the
Prospectus, the Company had a nonaffiliate, public common equity
float of at least $150 million or a non-affiliate, public common
equity float of at least $100 million and annual trading volume of
at least three million shares and (ii) the Company has been subject
to the Exchange Act reporting requirements for a period of at least
36 months.
Any
certificate signed by an officer of the Company and delivered to
the Agents or to counsel for the Agents pursuant to or in
connection with this Agreement shall be deemed to be a
representation and warranty by the Company, as applicable, to the
Agents as to the matters set forth therein.
7. Covenants of the Company. The
Company covenants and agrees with the Agents that:
a. Registration Statement
Amendments. After the date of this Agreement and during any
period in which a prospectus relating to any Placement Shares is
required to be delivered by the Agents under the Securities Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act) (the
“Prospectus Delivery
Period”) (i) the Company will notify the Agents
promptly of the time when any subsequent amendment to the
Registration Statement, other than documents incorporated by
reference or amendments not related to any Placement, has been
filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus related to the Placement or
for additional information related to the Placement, (ii) the
Company will prepare and file with the Commission, within a
reasonable period of time following the Agents’ reasonable
written request, any amendments or supplements to the Registration
Statement or Prospectus that, upon the advice of the
Company’s legal counsel, may be necessary or advisable in
connection with the distribution of the Placement Shares by the
Agents (provided, however,
that the failure of the Agents to make such request shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and provided,
further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales
under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement
Shares or a security convertible or exchangeable into the Placement
Shares (other than an Incorporated Document) unless a copy thereof
has been submitted to the Agents within a reasonable period of time
before the filing and the Agents have not reasonably objected
thereto (provided, however,
that (A) the failure of the Agents to make such objection shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and (B) the
Company has no obligation to provide the Agents any advance copy of
such filing or to provide the Agents an opportunity to object to
such filing if the filing does not name the Agents or does not
relate to the transaction herein provided; and provided, further,
that the only remedy the Agents shall have with respect to the
failure by the Agents to provide such objection shall be to cease
making sales under this Agreement) and the Company will furnish to
the Agents at the time of filing thereof a copy of any document
that upon filing is deemed to be incorporated by reference into the
Registration Statement or Prospectus, except for those documents
available via EDGAR; and (iv) the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed
(the determination to file or not file any amendment or supplement
with the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall
be made exclusively by the Company).
b. Notice of Commission Stop
Orders. The Company will advise the Agents, promptly after
it receives notice or obtains knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the qualification
of the Placement Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such
purpose; and it will use its commercially reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal
if such a stop order should be issued. The Company will advise the
Agents promptly after it receives any request by the Commission for
any amendments to the Registration Statement or any amendment or
supplements to the Prospectus or any Issuer Free Writing Prospectus
or for additional information related to the offering of the
Placement Shares or for additional information related to the
Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus.
c. Delivery of Prospectus; Subsequent
Changes. During the Prospectus Delivery Period, the Company
will use its commercially reasonable efforts to comply in all
material respects with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or
before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or
any other provision of or under the Exchange Act. If the Company
has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use its
commercially reasonable efforts to comply with the provisions of
and make all requisite filings with the Commission pursuant to said
Rule 430B and to notify the Agents promptly of all such filings if
not available on EDGAR. If during the Prospectus Delivery Period
any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then
existing, not misleading, or if during such Prospectus Delivery
Period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the
Company will promptly notify the Designated Agent to suspend the
offering of Placement Shares during such period and the Company
will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance; provided, however, that the Company may
delay the filing of any amendment or supplement, if in the judgment
of the Company, it is in the best interest of the
Company.
d. Listing of Placement Shares.
During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to cause the Placement Shares to be
listed on the Exchange and to qualify the Placement Shares for sale
under the securities laws of such jurisdictions in the United
States as the Agents reasonably designate and to continue such
qualifications in effect so long as required for the distribution
of the Placement Shares; provided,
however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation or dealer
in securities, file a general consent to service of process, or
subject itself to taxation in any jurisdiction if it is not
otherwise so subject.
e. Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agents and its
counsel (at the reasonable expense of the Company) copies of the
Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are
filed with the Commission during the Prospectus Delivery Period
(including all documents filed with the Commission during such
period that are deemed to be incorporated by reference therein), in
each case as soon as reasonably practicable and in such quantities
as the Agents may from time to time reasonably request and, at an
Agent’s request, will also furnish copies of the Prospectus
to each exchange or market on which sales of the Placement Shares
may be made; provided,
however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Agents to the
extent such document is available on EDGAR.
f. Earnings Statement. The Company
will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the
end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions
of Section 11(a) and Rule 158 of the Securities Act.
g. Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the
section entitled “Use of Proceeds.”
h. Notice of Other Sales. Without
the prior written consent of the Agents, the Company will not,
directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Stock
(other than the Placement Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for
Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the date on which any
Placement Notice is delivered to the Agents hereunder and ending on
the third (3rd) Trading Day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to
such Placement Notice (or, if the Placement Notice has been
terminated or suspended prior to the sale of all Placement Shares
covered by a Placement Notice, the date of such suspension or
termination); and will not directly or indirectly in any other
“at the market” or continuous equity transaction offer
to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any
rights to purchase or acquire, Common Stock prior to the
termination of this Agreement; provided, however, that such
restrictions will not apply in connection with the Company’s
issuance or sale of (i) Common Stock, options to purchase Common
Stock or Common Stock issuable upon the exercise of options,
pursuant to any stock option, or benefits plan, stock ownership
plan or dividend reinvestment plan of the Company (but not Common
Stock subject to a waiver to exceed plan limits in its dividend
reinvestment plan) whether now in effect or hereafter implemented;
(ii) Common Stock issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or
outstanding, and disclosed in filings by the Company available on
EDGAR or otherwise in writing to the Agents, (iii) Common
Stock, or securities convertible into or exercisable for Common
Stock, offered and sold in a privately negotiated transaction to
vendors, customers, strategic partners or potential strategic
partners or other investors conducted in a manner so as not to be
integrated with the offering of Common Stock hereby and (iv) Common
Stock, or securities convertible into or exercisable for Common
Stock, in connection with any acquisition, strategic investment or
other similar transaction (including any joint venture, strategic
alliance or partnership). Notwithstanding the foregoing provisions,
nothing herein shall be construed to restrict the Company’s
ability, or require the consent of the Agents, to file a
registration statement under the Securities Act.
i. Change of Circumstances. The
Company will, at any time during the pendency of a Placement Notice
advise the Agents promptly after it shall have received notice or
obtained knowledge thereof, of any information or fact that would
alter or affect in any material respect any opinion, certificate,
letter or other document required to be provided to the Agents
pursuant to this Agreement.
j. Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with
any reasonable due diligence review conducted by the Agents or its
representatives in connection with the transactions contemplated
hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during
regular business hours and at the Company’s principal
offices, as the Agents may reasonably request.
k. Required Filings Relating to Placement
of Placement Shares. The Company agrees that on such dates
as the Securities Act shall require with respect to the Placement
Shares, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b) under the
Securities Act (each and every date a filing under Rule 424(b) is
made, a “Filing
Date”), which prospectus supplement will set forth,
within the relevant period, the amount of Placement Shares sold
through the Agents, the Net Proceeds to the Company and the
compensation payable by the Company to the Agents with respect to
such Placement Shares, and (ii) deliver such number of copies of
each such prospectus supplement to each exchange or market on which
such sales were effected as may be required by the rules or
regulations of such exchange or market.
l. Representation Dates;
Certificate. Each time during the term of this Agreement
that the Company:
(i) amends or
supplements (other than a prospectus supplement relating solely to
an offering of securities other than the Placement Shares) the
Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or
supplement but not by means of incorporation of documents by
reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files
an annual report on Form 10-K under the Exchange Act (including any
Form 10-K/A containing amended audited financial information or a
material amendment to the previously filed Form 10-K);
(iii) files
its quarterly reports on Form 10-Q under the Exchange Act;
or
(iv) files
a current report on Form 8-K containing amended financial
information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure
pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) under the
Exchange Act;
(Each
date of filing of one or more of the documents referred to in
clauses (i) through (iv) shall be a “Representation
Date.”)
the
Company shall furnish the Agents (but in the case of clause (iv)
above only if the Agents reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the
form attached hereto as Exhibit 7(1). The requirement
to provide a certificate under this Section 7(1) shall be waived
for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the
earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be
considered a Representation Date) and the next occurring
Representation Date on which the Company files its annual report on
Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of
the first Placement Notice hereunder and (ii) if the Company
subsequently decides to sell Placement Shares following a
Representation Date when the Company relied on such waiver and did
not provide the Agents with a certificate under this Section 7(1), then before the
Agents sells any Placement Shares, the Company shall provide the
Agents with a certificate, in the form attached hereto as
Exhibit 7(1), dated
the date of the Placement Notice.
m. Legal Opinion. On or prior to
the date of the first Placement Notice given hereunder the Company
shall cause to be furnished to the Agents a written opinion and a
negative assurance letter of Cooley LLP (“Company Counsel”), or
other counsel reasonably satisfactory to the Agents, each in form
and substance reasonably satisfactory to the Agents. Thereafter,
within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no waiver is
applicable, the Company shall cause to be furnished to the Agents
a negative assurance letter of Company Counsel in form and
substance reasonably satisfactory to the Agents; provided that, in
lieu of such negative assurance for subsequent periodic filings
under the Exchange Act, counsel may furnish the Agents with a
letter (a “Reliance Letter”) to the
effect that the Agents may rely on the negative assurance letter
previously delivered under this Section 7(m) to the same extent as
if it were dated the date of such letter (except that statements in
such prior letter shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented as of the
date of the Reliance Letter).
n. Comfort Letter. On or prior to
the date of the first Placement Notice given hereunder and within
five (5) Trading Days after each subsequent Representation Date,
the Company shall cause its independent accountants to furnish the
Agents letters (the “Comfort Letters”), dated
the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 7(n). The Comfort
Letter from the Company’s independent registered public
accounting firm shall be in a form and substance reasonably
satisfactory to the Agents, (i) confirming that they are an
independent registered public accounting firm within the meaning of
the Securities Act and the Public Company Accounting Oversight
Board, (ii) stating, as of such date, the conclusions and findings
of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any
information that would have been included in the Initial Comfort
Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
o. Market Activities. The Company
will not, directly or indirectly, (i) take any action designed to
cause or result in, or that constitutes or would reasonably be
expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of shares of Common Stock or (ii) sell, bid for, or purchase
shares of Common Stock in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares
other than the Agents.
p. Investment Company Act. The
Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor the Subsidiaries will be or
become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the
Investment Company Act.
q. No Offer to Sell. Other than an
Issuer Free Writing Prospectus approved in advance by the Company
and the Agents in its capacity as agents or principals hereunder
pursuant to Section
23, neither Agent nor the Company (including its agents and
representatives, other than the Agent in its capacity as sales
agent or principal) will make, use, prepare, authorize, approve or
refer to any written communication (as defined in Rule 405 under
the Securities Act), required to be filed with the Commission, that
constitutes an offer to sell or solicitation of an offer to buy
Placement Shares hereunder.
r. Sarbanes-Oxley Act. The Company
will maintain and keep accurate books and records reflecting its
assets and maintain internal accounting controls in a manner
designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP and including those
policies and procedures that (i) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii)
provide reasonable assurance that transactions are recorded as
necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii)
that receipts and expenditures of the Company are being made only
in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable
assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements. The
Company will maintain disclosure controls and procedures that
comply in all material respects with the requirements of the
Exchange Act.
8. Representations and Covenants of the
Agents. Each Agent represents and warrants that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the
applicable statutes and regulations of each state in which the
Placement Shares will be offered and sold, except such states in
which such Agent is exempt from registration or such registration
is not otherwise required. Each Agent shall continue, for the term
of this Agreement, to be duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and
sold, except such states in which it is exempt from registration or
such registration is not otherwise required, during the term of
this Agreement. Each Agent shall comply with all applicable law and
regulations in connection with the transactions contemplated by
this Agreement, including without limitation the issuance and sale
through the Designated Agent of the Placement Shares.
9. Payment of Expenses. The
Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation,
filing, including any fees required by the Commission, and printing
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment and supplement
thereto and each Issuer Free Writing Prospectus, in such number as
the Agents shall deem reasonably necessary, (ii) the printing and
delivery to the Agents of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for
the Placement Shares to the Agents, including any stock or other
transfer taxes and any capital duties, stamp duties or other duties
or taxes payable upon the sale, issuance or delivery of the
Placement Shares to the Agents, (iv) the fees and disbursements of
the counsel, accountants and other advisors to the Company, (v) the
reasonable and documented out-of-pocket fees and disbursements of
counsel to the Agents (x) not to exceed $50,000 in connection with
the filing of this Agreement and (y) not to exceed $7,500 per year
thereafter in connection with updates at the time of Representation
Dates; (vi) the fees and expenses of the transfer agent and
registrar for the Common Stock, (vii) the filing fees incident to
any review by FINRA of the terms of the sale of the Placement
Shares, and (viii) the fees and expenses incurred in connection
with the listing of the Placement Shares on the
Exchange.
10. Conditions to the Agents’
Obligations. The obligations of the Agents hereunder with
respect to a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the
Company herein (other than those representations and warranties
made as of a specified date or time), to the due performance in all
material respects by the Company of its obligations hereunder, to
the completion by the Agents of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing reasonable
satisfaction (or waiver by the Agents in their sole discretion) of
the following additional conditions:
a. Registration Statement
Effective. The Registration Statement shall have become
effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement
Notice.
b. No Material Notices. None of
the following events shall have occurred and be continuing: (i)
receipt by the Company of any request for additional information
from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration
Statement, the response to which would require any post-effective
amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other
federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or
receipt by the Company of notification of the initiation of any
proceedings for that purpose; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for
sale in any jurisdiction or receipt by the Company of notification
of the initiation of, or a threat to initiate, any proceeding for
such purpose; or (iv) the occurrence of any event that makes any
material statement made in the Registration Statement or the
Prospectus or any material Incorporated Document untrue in any
material respect or that requires the making of any changes in the
Registration Statement, the Prospectus or any material Incorporated
Document so that, in the case of the Registration Statement, it
will not contain any materially untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, that
in the case of the Prospectus or any material Incorporated
Document, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
c. No Misstatement or Material
Omission. The Agents shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in
the Agent’s reasonable opinion, in consultation with outside
counsel, is material, or omits to state a fact that in the
Agent’s reasonable opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
d. Material Changes. Except as
contemplated in the Registration Statement. Prospectus, or
disclosed in the Company’s reports filed with the Commission,
there shall not have been any Material Adverse Effect, or any
development that would reasonably be expected to result in a
Material Adverse Effect, or a downgrading in or withdrawal of the
rating assigned to any of the Company’s securities (other
than asset backed securities) by any “nationally recognized
statistical rating organization,” as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities
Act (a “Rating
Organization”), or a public announcement by any Rating
Organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by
a Rating Organization described above, in the reasonable judgment
of the Agents (without relieving the Company of any obligation or
liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the
Placement Shares on the terms and in the manner contemplated in the
Prospectus.
e. Company Counsel Legal Opinion.
The Agents shall have received the opinion and negative assurance
letter of Company Counsel required to be delivered pursuant to
Section 7(m)
on or before the date on which such delivery of such opinion and
negative assurance letter are required pursuant to Section 7(m).
f. Agents Counsel Legal Opinion.
Agents shall have received from Duane Morris LLP, counsel for the
Agents, such opinion or opinions, on or before the date on which
the delivery of the Company Counsel legal opinion is required
pursuant to Section
7(m), with respect to such matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for enabling them to pass
upon such matters.
g. Comfort Letter. The Agents
shall have received the Comfort Letter required to be delivered
pursuant Section
7(n) on or before the date on which such delivery of such
letter is required pursuant to Section 7(n).
h. Representation Certificate. The
Agents shall have received the certificate required to be delivered
pursuant to Section
7(1) on or before the date on which delivery of such
certificate is required pursuant to Section 7(1).
i. Secretary’s Certificate.
On or prior to the first Representation Date, the Agents shall have
received a certificate, signed on behalf of the Company by its
corporate Secretary, in form and substance reasonably satisfactory
to the Agents and its counsel.
j. No Suspension. Trading in the
Common Stock shall not have been suspended on the Exchange and the
Common Stock shall not have been delisted from the
Exchange.
k. Other Materials. On each date
on which the Company is required to deliver a certificate pursuant
to Section 7(1),
the Company shall have furnished to the Agents such appropriate
further information, certificates and documents as the Agents may
reasonably request and which are usually and customarily furnished
by an issuer of securities in connection with a securities offering
of the type contemplated hereby. All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof.
l. Securities Act Filings Made.
All filings with the Commission required by Rule 424 under the
Securities Act to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the
applicable time period prescribed for such filing by Rule
424.
m. Approval for Listing. The
Placement Shares shall either have been approved for listing on the
Exchange, subject only to notice of issuance, or the Company shall
have filed an application for listing of the Placement Shares on
the Exchange at, or prior to, the issuance of any Placement
Notice.
n. No Termination Event. There
shall not have occurred any event that would permit the Agents to
terminate this Agreement pursuant to Section 13(a).
11. Indemnification and
Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold
harmless the Agents, their partners, members, directors, officers,
employees and agents and each person, if any, who controls the
Agents within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 11(d) below) any
such settlement is effected with the written consent of the
Company, which consent shall not unreasonably be delayed or
withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the
reasonable and documented out-of-pocket fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above,
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made solely in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement (or any
amendment thereto), or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification
by the Agents. Each Agent agrees to indemnify and hold
harmless the Company and its directors and officers, and each
person, if any, who (i) controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
or (ii) is controlled by or is under common control with the
Company against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 11(a), as incurred, but
only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information
relating to such Agent and furnished to the Company in writing by
such Agent expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under
this Section 11
will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 11, notify each such
indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such
indemnifying party will not relieve the indemnifying party from (i)
any liability that it might have to any indemnified party otherwise
than under this Section
11 and (ii) any liability that it may have to any
indemnified party under the foregoing provisions of this
Section 11 unless,
and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for
the reasonable and documented costs of investigation subsequently
incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential
conflict of interest exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable and documented
out-of-pocket fees, disbursements and other charges of counsel will
be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable and documented
out-of-pocket fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any
one time for all such indemnified party or parties. All such
reasonable and documented out-of-pocket fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly
after the indemnifying party receives a written invoice relating to
fees, disbursements and other charges in reasonable detail. An
indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written
consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this
Section 11 (whether
or not any indemnified party is a party thereto), unless such
settlement, compromise or consent (1) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (2) does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified
party.
(d) Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 11 is applicable in
accordance with its terms but for any reason is held to be
unavailable from the Company or an Agent, the Company and such
Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted, but after deducting any contribution received by the
Company from persons other than the Agents, such as persons who
control the Company within the meaning of the Securities Act or the
Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for
contribution) to which the Company and the Agents may be subject in
such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on
the other hand. The relative benefits received by the Company on
the one hand and the Agents on the other hand shall be deemed to be
in the same proportion as the total Net Proceeds from the sale of
the Placement Shares (net of commissions paid to the Agents but
before deducting expenses) received by the Company bear to the
total compensation received by the Agents (before deducting
expenses) from the sale of Placement Shares on behalf of the
Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company, on the one
hand, and the Agents, on the other hand, with respect to the
statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Agents, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Agents agree that it
would not be just and equitable if contributions pursuant to this
Section 11(d) were
to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above
in this Section
11(d) shall be deemed to include, for the purpose of this
Section 11(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action
or claim to the extent consistent with Section 11(c) hereof.
Notwithstanding the foregoing provisions of this Section 11(d), the Agents shall
not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 11(d), any person who
controls a party to this Agreement within the meaning of the
Securities Act or the Exchange Act, and any officers, directors,
partners, employees or agents of the Agents, will have the same
rights to contribution as that party, and each officer who signed
the Registration Statement and director of the Company will have
the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may
be made under this Section
11(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not
relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this
Section 11(d)
except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the
party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 11(c) hereof, no party
will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required
pursuant to Section
11(c) hereof.
12. Representations and Agreements to
Survive Delivery. The indemnity and contribution agreements
contained in Section 11 of this Agreement and all representations
and warranties of the Company herein, or of the Agents herein, or
in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by
or on behalf of the Agents, any controlling persons, or the Company
(or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this
Agreement.
13. Termination.
a. An Agent may
terminate this Agreement, by notice to the Company, as hereinafter
specified at any time (1) if there has been, since the time of
execution of this Agreement or since the date as of which
information is given in the Prospectus, any Material Adverse
Effect, or any development that would reasonably be expected to
result in a Material Adverse Effect that, in the sole judgment of
such Agent, is material and adverse and makes it impractical or
inadvisable to market the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (2) if there has occurred any
material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make it,
in the judgment of such Agent, impracticable or inadvisable to
market the Placement Shares or to enforce contracts for the sale of
the Placement Shares, (3) if trading in the Common Stock has been
suspended or limited by the Commission or the Exchange, or if
trading generally on the Exchange has been suspended or limited, or
minimum prices for trading have been fixed on the Exchange, (4) if
any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market shall have occurred and
be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States shall have occurred and
be continuing, or (6) if a banking moratorium has been
declared by either U.S. Federal or New York authorities. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If such Agent elects to terminate
this Agreement as provided in this Section 13(a), the such Agent
shall provide the required notice as specified in Section 14
(Notices).
b. The Company shall
have the right, by giving five (5) days’ notice as
hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
c. Each Agent shall
have the right, by giving five (5) days’ notice as
hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
d. Unless earlier
terminated pursuant to this Section 13, this Agreement
shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agents on the terms and subject to
the conditions set forth herein except that the provisions of
Section 9 (Payment
of Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
e. This Agreement
shall remain in full force and effect unless terminated pursuant to
Sections 13(a),
(b), (c), or (d) above or otherwise by
mutual agreement of the parties; provided, however, that any such
termination by mutual agreement shall in all cases be deemed to
provide that Section
9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section
12 (Representations and Agreements to Survive Delivery),
Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) shall remain in full force and effect. Upon
termination of this Agreement, the Company shall not have any
liability to an Agent for any discount, commission or other
compensation with respect to any Placement Shares not otherwise
sold by the Agent under this Agreement. To the extent this
Agreement is terminated by one Agent or by the Company with respect
to one Agent pursuant to Sections 13(a) (b) or (c) above, this Agreement shall
terminate only with respect to such Agent and shall remain in full
force and effect with respect to the Company and the other Agents,
unless and until terminated pursuant to Sections 13(a), (b), (c), or (d) above.
f. Any termination of
this Agreement shall be effective on the date specified in such
notice of termination; provided,
however, that such termination shall not be effective until
the close of business on the date of receipt of such notice by an
Agent or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the
provisions of this Agreement.
14. Notices. All notices or other
communications required or permitted to be given by any party to
any other party pursuant to the terms of this Agreement shall be in
writing, unless otherwise specified, and if sent to the Agents,
shall be delivered to:
B.
Riley FBR, Inc.
299
Park Avenue, 7th Floor
New
York, NY 10171
Attention:General
Counsel
Telephone: (212)
457-9947
Email:
atmdesk@brileyfbr.com
Raymond
James & Associates, Inc.
277
Park Avenue, Suite 410
New
York, NY 10172
Attention:Stuart
Barich and Tom Donegan
Telephone: (212)
314-0444
Email: stuart.barich@raymondjames.com
and tom.donegan@raymondjames.com
with a
copy to:
Duane
Morris LLP
1540
Broadway
New
York, NY 10036
Attention:
Dean M.
Colucci
Telephone:
(973)
424-2020
Email:
dmcolucci@duanemorris.com
and if
to the Company, shall be delivered to:
ChromaDex
Corporation
10900
Wilshire Boulevard
Suite
650
Los
Angeles, CA 90024
Attention: General
Counsel
Telephone:
310-388-6706
Email:
markf@chromadex.com
with a
copy to:
Cooley
LLP
4401
Eastgate Mall
San
Diego, CA 92121
Attention: Tom
Coll
Telephone:
858-550-6013
Email:
collta@cooley.com
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally, by email, or
by verifiable facsimile transmission on or before 4:30 p.m., New
York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this
Agreement, “Business
Day” shall mean any day on which the Exchange and
commercial banks in the City of New York are open for
business.
15. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and the Agents and their respective successors and the
affiliates, controlling persons, officers and directors referred to
in Section 11
hereof. References to any of the parties contained in this
Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
Neither the Company nor the Agents may assign its rights or
obligations under this Agreement without the prior written consent
of the other party.
16. Adjustments for Stock Splits.
The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account
any share consolidation, stock split, stock dividend, corporate
domestication or similar event effected with respect to the
Placement Shares.
17. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other
prior and contemporaneous agreements and undertakings, both written
and oral, among the parties hereto with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the
Company and the Agents. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable as written
by a court of competent jurisdiction, then such provision shall be
given full force and effect to the fullest possible extent that it
is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only
to the extent that giving effect to such provision and the
remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties as reflected in this
Agreement.
18. GOVERNING LAW AND TIME; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME. THE COMPANY AND THE AGENTS EACH HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
19. CONSENT TO JURISDICTION. EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-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 WITH ANY TRANSACTION CONTEMPLATED HEREBY, 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 BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. 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 (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) 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 MANNER PERMITTED BY
LAW.
20. Use of Information. The Agents
may not use any information gained in connection with this
Agreement and the transactions contemplated by this Agreement,
including due diligence, to advise any party with respect to
transactions not expressly approved by the Company.
21. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile transmission or email
of a .pdf attachment.
22. Effect of Headings. The
section, Schedule and Exhibit headings herein are for convenience
only and shall not affect the construction hereof.
23. Permitted Free Writing
Prospectuses. The Company represents, warrants and agrees
that, unless it obtains the prior consent of the Agents (which
consent shall not be unreasonably withheld or delayed), and the
Agents represent, warrant and agree that, unless it obtains the
prior consent of the Company, in each case which shall not be
unreasonably withheld, delayed or conditioned, it has not made and
will not make any offer relating to the Placement Shares that would
constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as
defined in Rule 405 under the Securities Act, required to be filed
with the Commission. Any such free writing prospectus consented to
by the Agents or by the Company, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule
433 under the Securities Act, and has complied and will comply with
the requirements of Rule 433 under the Securities Act applicable to
any Permitted Free Writing Prospectus, including timely filing with
the Commission where required, legending and record keeping. For
the purposes of clarity, the parties hereto agree that all free
writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted
Free Writing Prospectuses.
24. Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
a. Each Agent is
acting solely as agent and/or principal in connection with the
offering of the Placement Shares and in connection with each
transaction contemplated by this Agreement and the process leading
to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates,
stockholders (or other equity holders), creditors or employees or
any other party, on the one hand, and the Agent, on the other hand,
has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the
Agent has advised or is advising the Company on other matters, and
the Agent has no obligation to the Company with respect to the
transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;
b. it is capable of
evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by
this Agreement;
c. the Agents have not
provided any legal, accounting, regulatory or tax advice with
respect to the transactions contemplated by this Agreement and it
has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate;
d. it is aware that
the Agents and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of
the Company and the Agents have no obligation to disclose such
interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship or otherwise;
and
e. it waives, to the
fullest extent permitted by law, any claims it may have against the
Agents for breach of fiduciary duty or alleged breach of fiduciary
duty in connection with the sale of Placement Shares under this
Agreement and agrees that the Agents shall not have any liability
(whether direct or indirect, in contract, tort or otherwise) to it
in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on its behalf or in right of it or
the Company, employees or creditors of Company, other than in
respect of the Agent’s obligations under this Agreement and
to keep information provided by the Company to the Agents and the
Agents’ counsel confidential to the extent not otherwise
publicly-available.
25. Definitions. As used in this
Agreement, the following terms have the respective meanings set
forth below:
“Applicable Time” means
(i) each Representation Date and (ii) the time of each sale of any
Placement Shares pursuant to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act,
relating to the Placement Shares that (1) is required to be filed
with the Commission by the Company, (2) is a “road
show” that is a “written communication” within
the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission, or (3) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Placement Shares or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g)
under the Securities Act.
“Rule
172,” “Rule 405,”
“Rule
415,” “Rule 424,”
“Rule
424(b),” “Rule 430B,” and
“Rule
433” refer to such rules under the Securities
Act.
All
references in this Agreement to financial statements and schedules
and other information that is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated
by reference in the Registration Statement or the Prospectus, as
the case may be.
All
references in this Agreement to the Registration Statement, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to EDGAR; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing
Prospectuses that, pursuant to Rule 433, are not required to be
filed with the Commission) shall be deemed to include the copy
thereof filed with the Commission pursuant to EDGAR; and all
references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements,
“wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Placement
Shares by the Agents outside of the United States.
[Remainder
of the page intentionally left blank]
If the
foregoing correctly sets forth the understanding between the
Company and the Agents, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the Agents.
Very
truly yours,
CHROMADEX
CORPORATION
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By:
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/s/
Robert Fried
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Name:
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Robert
Fried
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Title:
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Chief
Executive Officer
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ACCEPTED
as of the date first-above written:
B.
RILEY FBR, INC.
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By:
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/s/
Patrice McNicoll
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Name:
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Patrice
McNicoll
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Title:
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Co-Head
of Investment Banking
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RAYMOND
JAMES & ASSOCIATES, INC.
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By:
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/s/
Stuart Barich
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Name:
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Stuart
Barich
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Title:
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Managing
Director
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SCHEDULE 1
________________________
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FORM OF
PLACEMENT
|
NOTICE
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________________________
From:
ChromaDex
Corporation
To:
[B. Riley FBR,
Inc.] [Raymond James & Associates, Inc.]
Attention: [●]
Subject: At Market
Issuance--Placement Notice
Ladies
and Gentlemen:
Pursuant to the
terms and subject to the conditions contained in the At Market
Issuance Sales Agreement between ChromaDex Corporation, a Delaware
corporation (the “Company”), B. Riley FBR,
Inc. and Raymond James & Associates, dated June 12, 2020, the
Company hereby requests that the [identify Designated Agent] sell up to
[____] of the Company’s Common Stock, par value $0.001 per
share [(collectively, the “Placement Shares”)], at a
minimum market price of $per share, during the time period
beginning [month, day, time] and ending [month, day, time]. [The
Company hereby authorizes the Designated Agent to purchase such
Placement Shares for its own account as principal.]
SCHEDULE 2
________________________
Compensation
________________________
The
Company shall pay to the Designated Agent in cash, upon each sale
of Placement Shares pursuant to this Agreement, an amount equal to
up to 3.0% of the gross proceeds from each sale of Placement
Shares.
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S
CONSENT
We consent to the incorporation by reference in this Registration
Statement of ChromaDex Corporation and Subsidiaries on Form
S-3 of our report dated March 10, 2020 with respect to
our audits of the consolidated financial statements of ChromaDex
Corporation and Subsidiaries as of December 31, 2019 and December 31,
2018 and for the years ended December 31, 2019 and
December 31, 2018 and our report dated March 10, 2020 (May 18, 2020
as to the effects of the material weakness described in
Management’s Report on Internal Control over Financial
Reporting (As Revised)) appearing in the Annual Report on Form 10-K/A of
ChromaDex Corporation and Subsidiaries for the year
ended December 31, 2019. We also consent to the
reference to our firm under the heading “Experts” in
such Prospectus.
/s/ Marcum llp
Marcum llp
New York, NY
June 12, 2020
Exhibit
4.10
CHROMADEX CORPORATION,
Issuer
AND
[TRUSTEE],
Trustee
_______________
INDENTURE
Dated as of [●], 20__
_______________
Debt Securities
Table of
Contents
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Page
|
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ARTICLE
1 DEFINITIONS
|
1
|
|
|
Section
1.01
|
Definitions of
Terms
|
1
|
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ARTICLE
2 ISSUE, DESCRIPTION,
TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
SECURITIES
|
5
|
|
|
Section
2.01
|
Designation and
Terms of Securities
|
5
|
|
Section
2.02
|
Form of
Securities and Trustee’s Certificate
|
8
|
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Section
2.03
|
Denominations:
Provisions for Payment
|
8
|
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Section
2.04
|
Execution and
Authentications
|
9
|
|
Section
2.05
|
Registration of
Transfer and Exchange
|
10
|
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Section
2.06
|
Temporary
Securities
|
11
|
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Section
2.07
|
Mutilated,
Destroyed, Lost or Stolen Securities
|
12
|
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Section
2.08
|
Cancellation
|
13
|
|
Section
2.09
|
Benefits of
Indenture
|
13
|
|
Section
2.10
|
Authenticating
Agent
|
13
|
|
Section
2.11
|
Global
Securities
|
14
|
|
Section
2.12
|
CUSIP
Numbers
|
15
|
|
ARTICLE
3 REDEMPTION OF
SECURITIES AND SINKING FUND PROVISIONS
|
15
|
|
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Section
3.01
|
Redemption
|
15
|
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Section
3.02
|
Notice
of Redemption
|
15
|
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Section
3.03
|
Payment
Upon Redemption
|
16
|
|
Section
3.04
|
Sinking
Fund
|
17
|
|
Section
3.05
|
Satisfaction of
Sinking Fund Payments with Securities
|
17
|
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Section
3.06
|
Redemption of
Securities for Sinking Fund
|
17
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ARTICLE
4 COVENANTS
|
18
|
|
|
Section
4.01
|
Payment
of Principal, Premium and Interest
|
18
|
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Section
4.02
|
Maintenance of
Office or Agency
|
18
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Section
4.03
|
Paying
Agents
|
19
|
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Section
4.04
|
Appointment to Fill
Vacancy in Office of Trustee
|
20
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ARTICLE
5 SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
20
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Section
5.01
|
Company
to Furnish Trustee Names and Addresses of
Securityholders
|
20
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Section
5.02
|
Preservation Of
Information; Communications With Securityholders
|
20
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Section
5.03
|
Reports
by the Company
|
20
|
|
Section
5.04
|
Reports
by the Trustee
|
21
|
|
ARTICLE
6 REMEDIES OF THE
TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
21
|
|
|
Section
6.01
|
Events
of Default
|
21
|
|
Section
6.02
|
Collection of
Indebtedness and Suits for Enforcement by Trustee
|
23
|
|
Section
6.03
|
Application of
Moneys Collected
|
25
|
|
Section
6.04
|
Limitation on
Suits
|
25
|
|
Section
6.05
|
Rights
and Remedies Cumulative; Delay or Omission Not Waiver
|
26
|
|
Section
6.06
|
Control
by Securityholders
|
26
|
|
Section
6.07
|
Undertaking to Pay
Costs
|
27
|
i
Table of
Contents
(continued)
|
ARTICLE
7 CONCERNING THE
TRUSTEE
|
27
|
|
|
Section
7.01
|
Certain
Duties and Responsibilities of Trustee
|
27
|
|
Section
7.02
|
Certain
Rights of Trustee
|
28
|
|
Section
7.03
|
Trustee
Not Responsible for Recitals or Issuance or Securities
|
30
|
|
Section
7.04
|
May
Hold Securities
|
30
|
|
Section
7.05
|
Moneys
Held in Trust
|
30
|
|
Section
7.06
|
Compensation and
Reimbursement
|
31
|
|
Section
7.07
|
Reliance on
Officer’s Certificate
|
31
|
|
Section
7.08
|
Disqualification;
Conflicting Interests
|
32
|
|
Section
7.09
|
Corporate Trustee
Required; Eligibility
|
32
|
|
Section
7.10
|
Resignation and
Removal; Appointment of Successor
|
32
|
|
Section
7.11
|
Acceptance of
Appointment By Successor
|
33
|
|
Section
7.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
35
|
|
Section
7.13
|
Preferential
Collection of Claims Against the Company
|
35
|
|
Section
7.14
|
Notice
of Default.
|
35
|
|
ARTICLE
8 CONCERNING THE
SECURITYHOLDERS
|
35
|
|
|
Section
8.01
|
Evidence of Action
by Securityholders
|
35
|
|
Section
8.02
|
Proof
of Execution by Securityholders
|
36
|
|
Section
8.03
|
Who May
be Deemed Owners
|
36
|
|
Section
8.04
|
Certain
Securities Owned by Company Disregarded
|
37
|
|
Section
8.05
|
Actions
Binding on Future Securityholders
|
37
|
|
ARTICLE
9 SUPPLEMENTAL
INDENTURES
|
37
|
|
|
Section
9.01
|
Supplemental
Indentures Without the Consent of Securityholders
|
37
|
|
Section
9.02
|
Supplemental
Indentures With Consent of Securityholders
|
39
|
|
Section
9.03
|
Effect
of Supplemental Indentures
|
39
|
|
Section
9.04
|
Securities Affected
by Supplemental Indentures
|
39
|
|
Section
9.05
|
Execution of
Supplemental Indentures
|
40
|
|
ARTICLE
10 SUCCESSOR
ENTITY
|
40
|
|
|
Section
10.01
|
Company
May Consolidate, Etc.
|
40
|
|
Section
10.02
|
Successor Entity
Substituted
|
41
|
|
ARTICLE
11 SATISFACTION AND
DISCHARGE
|
41
|
|
|
Section
11.01
|
Satisfaction and
Discharge of Indenture
|
41
|
|
Section
11.02
|
Discharge of
Obligations
|
42
|
|
Section
11.03
|
Deposited Moneys to
be Held in Trust
|
42
|
|
Section
11.04
|
Payment
of Moneys Held by Paying Agents
|
42
|
|
Section
11.05
|
Repayment to
Company
|
42
|
|
ARTICLE
12 IMMUNITY OF
INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
43
|
|
|
Section
12.01
|
No
Recourse
|
43
|
ii
Table of
Contents
(continued)
|
ARTICLE
13 MISCELLANEOUS
PROVISIONS
|
43
|
|
|
Section
13.01
|
Effect
on Successors and Assigns
|
43
|
|
Section
13.02
|
Actions
by Successor
|
43
|
|
Section
13.03
|
Surrender of
Company Powers
|
44
|
|
Section
13.04
|
Notices
|
44
|
|
Section
13.05
|
Governing Law; Jury
Trial Waiver
|
44
|
|
Section
13.06
|
Treatment of
Securities as Debt
|
44
|
|
Section
13.07
|
Certificates and
Opinions as to Conditions Precedent
|
44
|
|
Section
13.08
|
Payments on
Business Days
|
45
|
|
Section
13.09
|
Conflict with Trust
Indenture Act
|
45
|
|
Section
13.10
|
Counterparts
|
45
|
|
Section
13.11
|
Separability
|
45
|
|
Section
13.12
|
Compliance
Certificates
|
45
|
|
Section
13.13
|
Patriot
Act
|
45
|
|
Section
13.14
|
Force
Majeure
|
45
|
|
Section
13.12
|
Table
of Contents; Headings
|
45
|
iii
INDENTURE
Indenture,
dated as of [●], 20__, among ChromaDex
Corporation, a
Delaware corporation (the “Company”), and [Trustee], as
trustee (the “Trustee”):
Whereas, for
its lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance of debt securities (hereinafter referred to as the
“Securities”), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in
this Indenture provided, as registered Securities without coupons,
to be authenticated by the certificate of the Trustee;
Whereas, to
provide the terms and conditions upon which the Securities are to
be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
Whereas, all
things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the
holders of Securities:
ARTICLE
1
DEFINITIONS
Section
..01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein or any
indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this
instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent
with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
“Board of
Directors” means the Board of Directors (or the
functional equivalent thereof) of the Company or any duly
authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized
committee thereof) and to be in full force and effect on the date
of such certification.
“Business Day”
means, with respect to any series of Securities, any day other than
a day on which federal or state banking institutions in the Borough
of Manhattan, the City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized or obligated by law,
executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
“Company” means
ChromaDex
Corporation, a corporation duly organized and existing under
the laws of the State of Delaware, and, subject to the provisions
of Article Ten, shall also include its successors and
assigns.
“Corporate Trust
Office” means the office of the Trustee at which, at
any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is
located at 10900 Wilshire Blvd., Suite 650, Los Angeles, CA
90024.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
1
“Defaulted
Interest” has the meaning set forth in Section
2.03.
“Depositary”
means, with respect to Securities of any series for which the
Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, another clearing
agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either
Section 2.01 or 2.11.
“Event of
Default” means, with respect to Securities of a
particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“Exchange Act”
means the United States Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the
Commission thereunder.
The
term “given”,
“mailed”,
“notify” or
“sent” with
respect to any notice to be given to a Securityholder pursuant to
this Indenture, shall mean notice (x) given to the Depositary (or
its designee) pursuant to the standing instructions from the
Depositary or its designee, including by electronic mail in
accordance with accepted practices or procedures at the Depositary
(in the case of a Global Security) or (y) mailed to such Holder by
first class mail, postage prepaid, at its address as it appears on
the Security Register (in the case of a definitive Security).
Notice so “given” shall be deemed to include any notice
to be “mailed” or “delivered,” as
applicable, under this Indenture.
“Global
Security” means a Security issued to evidence all or a
part of any series of Securities which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct
obligations of the United States of America for the payment of
which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof
at any time prior to the stated maturity of the Securities, and
shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
“herein”,
“hereof” and “hereunder”,
and other words of similar import, refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
“Indenture”
means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms
hereof and shall include the terms of particular series of
Securities established as contemplated by Section
2.01.
“Interest Payment
Date”, when used with respect to any installment of
interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the
fixed date on which an installment of interest with respect to
Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of
Directors, a chief executive officer, a president, a chief
financial officer, a chief operating officer, any executive vice
president, any senior vice president, any vice president, the
treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant
secretary.
“Officer’s
Certificate” means a certificate signed by any
Officer. Each such certificate shall include the statements
provided for in Section 13.07, if and to the extent required by the
provisions thereof.
“Opinion of
Counsel” means an opinion in writing subject to
customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.
2
“Outstanding”,
when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular
time, all Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a)
Securities theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as provided in
Article Three, or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
“Person” means
any individual, corporation, partnership, joint venture,
joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
“Predecessor
Security” of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 2.07 in lieu of a lost, destroyed or stolen Security shall
be deemed to evidence the same debt as the lost, destroyed or
stolen Security.
“Responsible
Officer” when used with respect to the Trustee means
any officer within the Corporate Trust Office of the Trustee (or
any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject and in each case who
shall have direct responsibility for the administration of this
Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities
Act” means the Securities Act of 1933, as
amended.
“Securityholder”,
“holder
of Securities”, “registered
holder”, or other similar term, means the Person or
Persons in whose name or names a particular Security is registered
on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security
Registrar” shall have the meanings as set forth in
Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association,
partnership or other business entity of which more than 50% of the
total voting power of shares of capital stock or other interests
(including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of
directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such
Person; (ii) such Person and one or more Subsidiaries of such
Person; or (iii) one or more Subsidiaries of such
Person.
“Trustee” means
_________________________, and, subject to the provisions of
Article Seven, shall also include its successors and assigns, and,
if at any time there is more than one Person acting in such
capacity hereunder, “Trustee” shall mean each such
Person. The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with
respect to that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as
amended.
“U.S.A. Patriot
Act” means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into
law October 26, 2001.
3
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section
..01 Designation and Terms of
Securities.
(a) The aggregate
principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be
issued in one or more series up to the aggregate principal amount
of Securities of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant
to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the
Securities of the series (which shall distinguish the Securities of
that series from all other Securities);
(2) any limit upon the
aggregate principal amount of the Securities of that series that
may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
that series);
(3) the maturity date
or dates on which the principal of the Securities of the series is
payable;
(4) the form of the
Securities of the series including the form of the certificate of
authentication for such series;
(5) the applicability
of any guarantees;
(6) whether or not the
Securities will be secured or unsecured, and the terms of any
secured debt;
(7) whether the
Securities rank as senior debt, senior subordinated debt,
subordinated debt or any combination thereof, and the terms of any
subordination;
(8) if the price
(expressed as a percentage of the aggregate principal amount
thereof) at which such Securities will be issued is a price other
than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the
maturity thereof, or if applicable, the portion of the principal
amount of such Securities that is convertible into another security
or the method by which any such portion shall be
determined;
(9) the interest rate
or rates, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for
interest payment dates or the method for determining such
dates;
(10) the Company’s
right, if any, to defer the payment of interest and the maximum
length of any such deferral period;
(11) if applicable, the
date or dates after which, or the period or periods during which,
and the price or prices at which, the Company may at its option,
redeem the series of Securities pursuant to any optional or
provisional redemption provisions and the terms of those redemption
provisions;
(12) the date or dates,
if any, on which, and the price or prices at which the Company is
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the
Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are
payable;
(13) the denominations
in which the Securities of the series shall be issuable, if other
than denominations of one thousand U.S. dollars ($1,000) or any
integral multiple thereof;
(14) any and all terms,
if applicable, relating to any auction or remarketing of the
Securities of that series and any security for the obligations of
the Company with respect to such Securities and any other terms
which may be advisable in connection with the marketing of
Securities of that series;
4
(15) whether the
Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and
the Depositary for such Global Security or Securities;
(16) if applicable, the
provisions relating to conversion or exchange of any Securities of
the series and the terms and conditions upon which such Securities
will be so convertible or exchangeable, including the conversion or
exchange price, as applicable, or how it will be calculated and may
be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange
features, the applicable conversion or exchange period and the
manner of settlement for any conversion or exchange, which may,
without limitation, include the payment of cash as well as the
delivery of securities;
(17) if other than the
full principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section
6.01;
(18) additions to or
changes in the covenants applicable to the series of Securities
being issued, including, among others, the consolidation, merger or
sale covenant;
(19) additions to or
changes in the Events of Default with respect to the Securities and
any change in the right of the Trustee or the Securityholders to
declare the principal, premium, if any, and interest, if any, with
respect to such Securities to be due and payable;
(20) additions to or
changes in or deletions of the provisions relating to covenant
defeasance and legal defeasance;
(21) additions to or
changes in the provisions relating to satisfaction and discharge of
this Indenture;
(22) additions to or
changes in the provisions relating to the modification of this
Indenture both with and without the consent of Securityholders of
Securities issued under this Indenture;
(23) the currency of
payment of Securities if other than U.S. dollars and the manner of
determining the equivalent amount in U.S. dollars;
(24) whether interest
will be payable in cash or additional Securities at the
Company’s or the Securityholders’ option and the terms
and conditions upon which the election may be made;
(25) the terms and
conditions, if any, upon which the Company shall pay amounts in
addition to the stated interest, premium, if any and principal
amounts of the Securities of the series to any Securityholder that
is not a “United States person” for federal tax
purposes;
(26) any restrictions on
transfer, sale or assignment of the Securities of the
series; and
(27) any other specific
terms, preferences, rights or limitations of, or restrictions on,
the Securities, any other additions or changes in the provisions of
this Indenture, and any terms that may be required by us or
advisable under applicable laws or regulations.
All
Securities of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental
hereto.
If any
of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an
assistant secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officer’s Certificate of the
Company setting forth the terms of the series.
Securities of any
particular series may be issued at various times, with different
dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with
different redemption dates.
Section
..02 Form of Securities and Trustee’s
Certificate.
The
Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board
Resolution, and set forth in an Officer’s Certificate, and
they may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
5
Section
..03 Denominations: Provisions for
Payment.
The
Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of
a particular series shall bear interest payable on the dates and at
the rate specified with respect to that series. Subject to Section
2.01(a)(23), the principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption or
repurchase thereof prior to maturity, and any cash amount due upon
conversion or exchange thereof, shall be payable in the coin or
currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the
Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day
months.
The
interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for
such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section
3.03.
Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may
make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered in the Security Register at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to
be sent, to each Securityholder not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been
sent as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered in the Security Register on
such special record date.
(2) The Company may
make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular
record date” as used in this Section with respect to a series
of Securities and any Interest Payment Date for such series shall
mean either the fifteenth day of the month immediately preceding
the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the first day
of the month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or
not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall
carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
Section
..04 Execution and
Authentications.
The
Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile
signature.
The
Company may use the facsimile signature of any Person who shall
have been an Officer (at the time of execution), notwithstanding
the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such
an officer of the Company. The Securities may contain such
notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by an Officer, and the Trustee
in accordance with such written order shall authenticate and
deliver such Securities.
6
Upon
the Company’s delivery of any such authentication order to
the Trustee at any time after the initial issuance of Securities
under this Indenture, the Trustee shall be provided with, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, (1) an Opinion of
Counsel or reliance letter and (2) an Officer’s Certificate
stating that all conditions precedent to the execution,
authentication and delivery of such Securities are in conformity
with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
Section
..05 Registration of Transfer and
Exchange.
(a) Securities of any
series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose, for other
Securities of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Security or Securities of the same series
that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously
outstanding.
(b) The Company shall
keep, or cause to be kept, at its office or agency designated for
such purpose a register or registers (herein referred to as the
“Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this
Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or
Supplemental Indenture (the “Security
Registrar”).
Upon
surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a
like aggregate principal amount.
The
Company initially appoints the Trustee as initial Security
Registrar for each series of Securities
All
Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly executed by the registered
holder or by such holder’s duly authorized attorney in
writing.
(c) Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and set
forth in an Officer’s Certificate, or established in one or
more indentures supplemental to this Indenture, no service charge
shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial
redemption of any series or repurchase, conversion or exchange of
less than the entire principal amount of a Security, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not
involving any transfer.
(d) The Company and the
Security Registrar shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning
at the opening of business 15 days before the day of the sending of
a notice of redemption of less than all the Outstanding Securities
of the same series and ending at the close of business on the day
of such sending, nor (ii) to register the transfer of or exchange
any Securities of any series or portions thereof called for
redemption or surrendered for repurchase, but not validly
withdrawn, other than the unredeemed portion of any such Securities
being redeemed in part or not surrendered for repurchase, as the
case may be. The provisions of this Section 2.05 are, with respect
to any Global Security, subject to Section 2.11
hereof.
The
Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers
between or among Depositary participants or beneficial owners of
interests in any Global Security) other than to require delivery of
such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express
requirements hereof.
Section
..06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary Security of any
series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in
exchange therefor (without charge to the Securityholders), at the
office or agency of the Company designated for the purpose, and the
Trustee shall authenticate and such office or agency shall deliver
in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Securities of
such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder.
7
Section
..07 Mutilated, Destroyed, Lost or Stolen
Securities.
In case
any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and
deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant
for a substituted Security shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to
save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the
Trustee evidence to their satisfaction of the destruction, loss or
theft of the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of
any officer of the Company. Upon the issuance of any substituted
Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
In case
any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish
to the Company and the Trustee such security or indemnity as they
may require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same
series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
Section
..08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption,
repurchase, exchange, registration of transfer or conversion shall,
if surrendered to the Company or any paying agent (or any other
applicable agent), be delivered to the Trustee for cancellation,
or, if surrendered to the Trustee, shall be cancelled by it, and no
Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture.
On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by
the Trustee. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures
and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for
cancellation.
Section
..09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the
Securities.
Section
..10 Authenticating Agent.
So long
as any of the Securities of any series remain Outstanding there may
be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon
exchange, transfer or partial redemption, repurchase or conversion
thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
8
Section
..11 Global Securities.
(a) If the Company
shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the
Company shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary
or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction (or if
the Depositary names the Trustee as its custodian, retained by the
Trustee), and (iv) shall bear a legend substantially to the
following effect: “Except as otherwise provided in Section
2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor
Depositary.”
(b) Notwithstanding the
provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in
Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the
Depositary for a series of the Securities notifies the Company that
it is unwilling or unable to continue as Depositary for such series
or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
condition, as the case may be, or if an Event of Default has
occurred and is continuing and the Company has received a request
from the Depositary or from the Trustee, this Section 2.11 shall no
longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.04, the Trustee will
authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be
represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such
series. In such event the Company will execute and, subject to
Section 2.04, the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled
by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section
2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such
Securities are so registered.
Section
..12 CUSIP Numbers.
The
Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the
other elements of identification printed on the Securities, and any
such redemption shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee of
any change in the “CUSIP” numbers.
9
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section
..01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
..02 Notice of Redemption.
(a) In case the Company
shall desire to exercise such right to redeem all or, as the case
may be, a portion of the Securities of any series in accordance
with any right the Company reserved for itself to do so pursuant to
Section 2.01 hereof, the Company shall, or shall cause the
Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class
postage prepaid (or with regard to any Global Security held in book
entry form, by electronic mail in accordance with the applicable
procedures of the Depositary), a notice of such redemption not less
than 30 days and not more than 90 days before the date fixed for
redemption of that series to such Securityholders, unless a shorter
period is specified in the Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered
holder receives the notice. In any case, failure duly to give such
notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing
compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be
redeemed (including CUSIP numbers, if any), specify the date fixed
for redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at
the office or agency of the Company, upon presentation and
surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is from a sinking fund, if such is the case. If less
than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so
redeemed.
In case
any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.
(b) If less than all
the Securities of a series are to be redeemed, the Company shall
give the Trustee at least 45 days’ notice (unless a shorter
notice shall be satisfactory to the Trustee) in advance of the date
fixed for redemption as to the aggregate principal amount of
Securities of the series to be redeemed, and thereupon the
Securities to be redeemed shall be selected, by lot, on a pro rata
basis, or in such other manner as the Company shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by an
Officer, instruct the Trustee or any paying agent to call all or
any part of the Securities of a particular series for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own
name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
Section
..03 Payment Upon Redemption.
(a) If the giving of
notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to, but excluding,
the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and
surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to,
but excluding, the date fixed for redemption (but if the date fixed
for redemption is an Interest Payment Date, the interest
installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation
of any Security of such series that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and
the office or agency where the Security is presented shall deliver
to the Securityholder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so
presented.
10
Section
..04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series,
except as otherwise specified as contemplated by Section 2.01
for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
“mandatory sinking fund payment,” and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the
terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of
Securities of such series.
Section
..05 Satisfaction of Sinking Fund Payments with
Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii)
may apply as a credit Securities of a series that have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series, provided that such
Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section
..06 Redemption of Securities for Sinking
Fund.
Not
less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of the series, the portion thereof, if any, that is to be satisfied
by delivering and crediting Securities of that series pursuant to
Section 3.05 and the basis for such credit and will, together with
such Officer’s Certificate, deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Securities to be redeemed upon
such sinking fund payment date shall be selected in the manner
specified in Section 3.02 and the Company shall cause notice of the
redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section
3.03.
11
ARTICLE 4
COVENANTS
Section
..01 Payment of Principal, Premium and
Interest.
The
Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided
herein and established with respect to such Securities. Payments of
principal on the Securities may be made at the time provided herein
and established with respect to such Securities by U.S. dollar
check drawn on and mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account if
such Securityholder shall have furnished wire instructions to the
Trustee no later than 15 days prior to the relevant payment date.
Payments of interest on the Securities may be made at the time
provided herein and established with respect to such Securities by
U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account if
such Securityholder shall have furnished wire instructions in
writing to the Security Registrar and the Trustee no later than 15
days prior to the relevant payment date.
Section
..02 Maintenance of Office or
Agency.
So long
as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated
as provided in this Section 4.02, where (i) Securities of that
series may be presented for payment, (ii) Securities of that series
may be presented as herein above authorized for registration of
transfer and exchange, and (iii) notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by
written notice signed by any officer authorized to sign an
Officer’s Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. The Company initially
appoints the Corporate Trust Office of the Trustee as its paying
agent with respect to the Securities.
Section
..03 Paying Agents.
(a) If the Company
shall appoint one or more paying agents for all or any series of
the Securities, other than the Trustee, the Company will cause each
such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold
all sums held by it as such agent for the payment of the principal
of (and premium, if any) or interest on the Securities of that
series (whether such sums have been paid to it by the Company or by
any other obligor of such Securities) in trust for the benefit of
the Persons entitled thereto;
(2) that it will give
the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of
(and premium, if any) or interest on the Securities of that series
when the same shall be due and payable;
(3) that it will, at
any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by
such paying agent; and
(4) that it will
perform all other duties of paying agent as set forth in this
Indenture.
(b) If the Company
shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set
aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Securities of that
series until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee
of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have
one or more paying agents for any series of Securities, it will,
prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying
agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of this action or failure so to
act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold
sums in trust as provided in this Section is subject to the
provisions of Section 11.05, and (ii) the Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent
to pay, to the Trustee all sums held in trust by the Company or
such paying agent, such sums to be held by the Trustee upon the
same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the
Company or any paying agent to the Trustee, the Company or such
paying agent shall be released from all further liability with
respect to such money.
Section
..04 Appointment to Fill Vacancy in Office of
Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
12
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE
Section
..01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series
of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustee by the Company and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for
any series for which the Trustee shall be the Security
Registrar.
Section
..02 Preservation Of Information; Communications
With Securityholders.
(a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of
holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).
(b) The Trustee may
destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(c) Securityholders may
communicate as provided in Section 312(b) of the Trust Indenture
Act with other Securityholders with respect to their rights under
this Indenture or under the Securities, and, in connection with any
such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with
the provisions of Section 312(b) of the Trust Indenture
Act.
Section
..03 Reports by the Company.
(a) The Company will at
all times comply with Section 314(a) of the Trust Indenture Act.
The Company covenants and agrees to provide (which delivery may be
via electronic mail) to the Trustee within 30 days, after the
Company files the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any
correspondence filed with the Commission or any materials for which
the Company has sought and received confidential treatment by the
Commission; and provided further, that so long as such filings by
the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), or any successor
system, such filings shall be deemed to have been filed with the
Trustee for purposes hereof without any further action required by
the Company. For the avoidance of doubt, a failure by the Company
to file annual reports, information and other reports with the
Commission within the time period prescribed thereof by the
Commission shall not be deemed a breach of this Section
5.03.
(b) Delivery of
reports, information and documents to the Trustee under Section
5.03 is for informational purposes only and the information and the
Trustee’s receipt of the foregoing shall not constitute
constructive notice of any information contained therein, or
determinable from information contained therein including the
Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an
Officer’s Certificate). The Trustee is under no duty to
examine any such reports, information or documents delivered to the
Trustee or filed with the Commission via EDGAR to ensure compliance
with the provision of this Indenture or to ascertain the
correctness or otherwise of the information or the statements
contained therein. The Trustee shall have no responsibility or duty
whatsoever to ascertain or determine whether the above referenced
filings with the Commission on EDGAR (or any successor system) has
occurred.
Section
..04 Reports by the Trustee.
(a) If required by
Section 313(a) of the Trust Indenture Act, the Trustee, within
sixty (60) days after each May 1, shall send to the Securityholders
a brief report dated as of such May 1, which complies with Section
313(a) of the Trust Indenture Act.
(b) The Trustee shall
comply with Section 313(b) and 313(c) of the Trust Indenture
Act.
(c) A copy of each such
report shall, at the time of such transmission to Securityholders,
be filed by the Trustee with the Company, with each securities
exchange upon which any Securities are listed (if so listed) and
also with the Commission. The Company agrees to notify the Trustee
when any Securities become listed on any securities
exchange.
13
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
Section
..01 Events of Default.
(a) Whenever used
herein with respect to Securities of a particular series,
“Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1) the Company
defaults in the payment of any installment of interest upon any of
the Securities of that series, as and when the same shall become
due and payable, and such default continues for a period of 90
days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2) the Company
defaults in the payment of the principal of (or premium, if any,
on) any of the Securities of that series as and when the same shall
become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the Company fails
to observe or perform any other of its covenants or agreements with
respect to that series contained in this Indenture or otherwise
established with respect to that series of Securities pursuant to
Section 2.01 hereof (other than a covenant or agreement that has
been expressly included in this Indenture solely for the benefit of
one or more series of Securities other than such series) for a
period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have
been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the holders of
at least 25% in principal amount of the Securities of that series
at the time Outstanding;
(4) the Company
pursuant to or within the meaning of any Bankruptcy Law (i)
commences a voluntary case, (ii) consents to the entry of an order
for relief against it in an involuntary case, (iii) consents to the
appointment of a Custodian of it or for all or substantially all of
its property or (iv) makes a general assignment for the benefit of
its creditors; or
(5) a court of
competent jurisdiction enters an order under any Bankruptcy Law
that (i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company for all or substantially
all of its property or (iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90
days.
(b) In each and every
such case (other than an Event of Default specified in clause (4)
or clause (5) above), unless the principal of all the Securities of
that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder,
by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium,
if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable. If an Event of Default specified in clause (4) or clause
(5) above occurs, the principal of and accrued and unpaid interest
on all the Securities of that series shall automatically be
immediately due and payable without any declaration or other act on
the part of the Trustee or the holders of the
Securities.
(c) At any time after
the principal of (and premium, if any, on) and accrued and unpaid
interest on the Securities of that series shall have been so
declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and
all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Securities of that
series to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.06, and (ii) any and all
Events of Default under the Indenture with respect to such series,
other than the nonpayment of principal on (and premium, if any, on)
and accrued and unpaid interest on Securities of that series that
shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.06.
No such
rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent
thereon.
(d) In case the Trustee
shall have proceeded to enforce any right with respect to
Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case,
subject to any determination in such proceedings, the Company and
the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceedings had been taken.
14
Section
..02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company
covenants that (i) in case it shall default in the payment of
any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued
for a period of 90 days, or (ii) in case it shall default in
the payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or
upon redemption or upon declaration or otherwise then, upon demand
of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole
amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section
7.06.
(b) If the Company
shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that
series and collect the moneys adjudged or decreed to be payable in
the manner provided by law or equity out of the property of the
Company or other obligor upon the Securities of that series,
wherever situated.
(c) In case of any
receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee
shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except
as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary
or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount
due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that
may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06;
and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of
action and of asserting claims under this Indenture, or under any
of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of
such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.
In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.
Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the
rights of any Securityholder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding.
Section
..03 Application of Moneys
Collected.
Any
moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in
the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal
(or premium, if any) or interest, upon presentation of the
Securities of that series, and notation thereon of the payment, if
only partially paid, and upon surrender thereof if fully
paid:
FIRST:
To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively;
and
THIRD:
To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
15
Section
..04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless (i) such
Securityholder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder; (iii) such Securityholder or
Securityholders shall have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request; (iv) the Trustee for
90 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 90 day period, the holders of a
majority in principal amount of the Securities of that series do
not give the Trustee a direction inconsistent with the
request.
Notwithstanding
anything contained herein to the contrary or any other provisions
of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the
respective due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of
Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section
..05 Rights and Remedies Cumulative; Delay or
Omission Not Waiver.
(a) Except as otherwise
provided in Section 2.07, all powers and remedies given by this
Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of
any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established
with respect to such Securities.
(b) No delay or
omission of the Trustee or of any holder of any of the Securities
to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default
or an acquiescence therein; and, subject to the provisions of
Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from
time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section
..06 Control by
Securityholders.
The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to such series; provided,
however, that such direction shall not be in conflict with any rule
of law or with this Indenture or subject the Trustee in its sole
discretion to personal liability. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a
Responsible Officer or officers of the Trustee, determine that the
proceeding so directed, subject to the Trustee’s duties under
the Trust Indenture Act, would involve the Trustee in personal
liability or might be unduly prejudicial to the Securityholders not
involved in the proceeding. The holders of a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding affected thereby, determined in accordance with Section
8.04, may on behalf of the holders of all of the Securities of such
series waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default
in the payment of the principal of, or premium, if any, or interest
on, any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
Section
..07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any
Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this
Indenture.
16
ARTICLE 7
CONCERNING THE TRUSTEE
Section
..01 Certain Duties and Responsibilities of
Trustee.
(a) The Trustee, prior
to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have
occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of
Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise
with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of
this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the
occurrence of an Event of Default with respect to the Securities of
a series and after the curing or waiving of all such Events of
Default with respect to that series that may have
occurred:
(A) the duties and
obligations of the Trustee shall with respect to the Securities of
such series be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties
and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in the absence of
bad faith on the part of the Trustee, the Trustee may with respect
to the Securities of such series conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(ii) the Trustee shall
not be liable to any Securityholder or to any other Person for any
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall
not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Securities of that series;
(iv) none of the
provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the
exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured
to it;
(v) The Trustee shall
not be required to give any bond or surety in respect of the
performance of its powers or duties hereunder;
(vi) The permissive
right of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty of the Trustee; and
(vii) No Trustee shall
have any duty or responsibility for any act or omission of any
other Trustee appointed with respect to a series of Securities
hereunder.
Section
..02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a) The Trustee may
conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
17
(b) Any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized Officer of the
Company (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may
consult with counsel and the opinion or written advice of such
counsel or, if requested, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d) The Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction
of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the
Trustee security or indemnity reasonably acceptable to the Trustee
against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however,
relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Securities (that
has not been cured or waived), to exercise with respect to
Securities of that series such of the rights and powers vested in
it by this Indenture, and to use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his or her own
affairs;
(e) The Trustee shall
not be liable for any action taken or omitted to be taken by it in
good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall
not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents or inquire as to the
performance by the Company of one of its covenants under this
Indenture, unless requested in writing so to do by the holders of
not less than a majority in principal amount of the Outstanding
Securities of the particular series affected thereby (determined as
provided in Section 8.04); provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require security or indemnity
reasonably acceptable to the Trustee against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable
expense of every such examination shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon
demand;
(g) The Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(h) In no event shall
the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable
under the circumstances;
(i) In no event shall
the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action; and
(j) The Trustee agrees
to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other
similar unsecured electronic methods; provided, however, that such
instructions or directions shall be signed by an authorized
representative of the party providing such instructions or
directions. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such
instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be
liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The
party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third
parties. The Trustee may request that the Company deliver an
Officer’s Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to furnish the
Trustee with Officer’s Certificates, Company Orders and any
other matters or directions pursuant to this
Indenture.
(k) The rights,
privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder and under the
Securities, and each agent, custodian or other person employed to
act under this Indenture.
(l) The Trustee shall
not be deemed to have knowledge of any Default or Event of Default
(other than an Event of Default constituting the failure to pay the
interest on, or the principal of, the Securities if the Trustee
also serves the paying agent for such Securities) until the Trustee
shall have received written notification in the manner set forth in
this Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge.
Section
..03 Trustee Not Responsible for Recitals or
Issuance or Securities.
(a) The recitals
contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee shall
not be responsible for any statement in any registration statement,
prospectus, or any other document in connection with the sale of
Securities. The Trustee shall not be responsible for any rating on
the Securities or any action or omission of any rating
agency.
(b) The Trustee makes
no representations as to the validity or sufficiency of this
Indenture or of the Securities.
(c) The Trustee shall
not be accountable for the use or application by the Company of any
of the Securities or of the proceeds of such Securities, or for the
use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the
Trustee.
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Section
..04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee
of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section
..05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with
the Company to pay thereon.
Section
..06 Compensation and
Reimbursement.
(a) The
Company shall pay to the Trustee for each of its capacities
hereunder from time to time compensation for its services as the
Company and the Trustee shall from time to time agree upon in
writing. The Trustee’s compensation shall not be limited by
any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and expenses of the Trustee’s
agents and counsel.
(b) The Company shall
indemnify each of the Trustee in each of its capacities hereunder
against any loss, liability or expense (including the cost of
defending itself and including the reasonable compensation and
expenses of the Trustee’s agents and counsel) incurred by it
except as set forth in Section 7.06(c) in the exercise or
performance of its powers, rights or duties under this Indenture as
Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The
Trustee may have one separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of
the Trustee.
(c) The Company need
not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or
bad faith.
(d) To ensure the
Company’s payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all funds or property
held or collected by the Trustee, except that held in trust to pay
principal of or interest on particular Securities. When the Trustee
incurs expenses or renders services in connection with an Event of
Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions
of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the
Trustee.
Section
..07 Reliance on Officer’s
Certificate.
Except
as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it reasonably necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to
take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
Section
..08 Disqualification; Conflicting
Interests.
If the
Trustee has or shall acquire any “conflicting interest”
within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture
Act.
Section
..09 Corporate Trustee Required;
Eligibility.
There
shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of
Columbia, or a corporation or other Person permitted to act as
trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial, or
District of Columbia authority.
If such
corporation or other Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or
other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
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Section
..10 Resignation and Removal; Appointment of
Successor.
(a) The Trustee or any
successor hereafter appointed may at any time resign with respect
to the Securities of one or more series by giving written notice
thereof to the Company and the Securityholders of such series. Upon
receiving such notice of resignation, the Company shall promptly
appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the sending of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time
any one of the following shall occur:
(i) the Trustee shall
fail to comply with the provisions of Section 7.08 after written
request therefor by the Company or by any Securityholder who has
been a bona fide holder of a Security or Securities for at least
six months; or
(ii) the Trustee shall
cease to be eligible in accordance with the provisions of Section
7.09 and shall fail to resign after written request therefor by the
Company or by any such Securityholder; or
(iii) the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be appointed or
consented to, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a
majority in aggregate principal amount of the Securities of any
series at the time Outstanding may at any time remove the Trustee
with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with
the consent of the Company.
(d) Any resignation or
removal of the Trustee and appointment of a successor trustee with
respect to the Securities of a series pursuant to any of the
provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor
trustee appointed pursuant to this Section may be appointed with
respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with
respect to the Securities of any particular series.
Section
..11 Acceptance of Appointment By
Successor.
(a) In case of the
appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall,
upon payment of any amounts due to it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring
Trustee hereunder.
20
(b) In case of the
appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall
accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the
part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such
successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties
and obligations vested in the Trustee under this Indenture, and
each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor trustee
relates.
(c) Upon request of any
such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor
trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of
appointment by a successor trustee as provided in this Section, the
Company shall send notice of the succession of such trustee
hereunder to the Securityholders. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
Section
..12 Merger, Conversion, Consolidation or
Succession to Business.
Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
including the administration of the trust created by this
Indenture, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of
Section 7.09, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
Section
..13 Preferential Collection of Claims Against the
Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent included therein.
Section
..14 Notice of Default.
If any
Event of Default occurs and is continuing and if such Event of
Default is known to a Responsible Officer of the Trustee, the
Trustee shall send to each Securityholder in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act notice
of the Event of Default within the earlier of 90 days after it
occurs and 30 days after it is known to a Responsible Officer of
the Trustee or written notice of it is received by the Trustee,
unless such Event of Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of (or premium,
if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible
Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the
Securityholders.
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ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section
..01 Evidence of Action by
Securityholders.
Whenever in this
Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority
or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar
tenor executed by such holders of Securities of that series in
person or by agent or proxy appointed in writing.
If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.
Section
..02 Proof of Execution by
Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require
notarization) or his or her agent or proxy and proof of the holding
by any Person of any of the Securities shall be sufficient if made
in the following manner:
(a) The fact and date
of the execution by any such Person of any instrument may be proved
in any reasonable manner acceptable to the Trustee.
(b) The ownership of
Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
Section
..03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose name such
Security shall be registered upon the books of the Security
Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the
contrary.
Section
..04 Certain Securities Owned by Company
Disregarded.
In
determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have
concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any
other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of
that series shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall
be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of
this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the
Trustee.
Section
..05 Actions Binding on Future
Securityholders.
At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this
Indenture in connection with such action, any holder of a Security
of that series that is shown by the evidence to be included in the
Securities the holders of which have consented to such action may,
by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken
by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such
Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective
of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that
series.
22
ARTICLE
9
SUPPLEMENTAL INDENTURES
Section
..01 Supplemental Indentures Without the Consent of
Securityholders.
In
addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to cure any
ambiguity, defect, or inconsistency herein or in the Securities of
any series;
(b) to comply with
Article Ten;
(c) to provide for
uncertificated Securities in addition to or in place of
certificated Securities;
(d) to add to the
covenants, restrictions, conditions or provisions relating to the
Company for the benefit of the holders of all or any series of
Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions
or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default, or to
surrender any right or power herein conferred upon the
Company;
(e) to add to, delete
from, or revise the conditions, limitations, and restrictions on
the authorized amount, terms, or purposes of issue, authentication,
and delivery of Securities, as herein set forth;
(f) to make any change
that does not adversely affect the rights of any Securityholder in
any material respect;
(g) to provide for the
issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish
the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Securities, or to add
to the rights of the holders of any series of
Securities;
(h) to evidence and
provide for the acceptance of appointment hereunder by a successor
trustee; or
(i) to comply with any
requirements of the Commission or any successor in connection with
the qualification of this Indenture under the Trust Indenture
Act.
The
Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
Section
..02 Supplemental Indentures With Consent of
Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized
by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.01 the rights of the holders of the
Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of
the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or
reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
23
Section
..03 Effect of Supplemental
Indentures.
Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture
shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of
Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Section
..04 Securities Affected by Supplemental
Indentures.
Securities of any
series affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form
meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of that series so modified as to conform, in the opinion
of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section
..05 Execution of Supplemental
Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of
Section 7.01, shall receive an Officer’s Certificate or an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article is authorized or
permitted by the terms of this Article and that all conditions
precedent to the execution of the supplemental indenture have been
complied with; provided, however, that such Officer’s
Certificate or Opinion of Counsel need not be provided in
connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) send a notice, setting forth
in general terms the substance of such supplemental indenture, to
the Securityholders of all series affected thereby .as their names
and addresses appear upon the Security Register. Any failure of the
Company to send, or cause the sending of, such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
24
ARTICLE 10
SUCCESSOR ENTITY
Section
..01 Company
May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or
merger of the Company with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the
Company or its successor or successors); provided, however, the
Company hereby covenants and agrees that, upon any such
consolidation or merger (in each case, if the Company is not the
survivor of such transaction) or any such sale, conveyance,
transfer or other disposition (other than a sale, conveyance,
transfer or other disposition to a Subsidiary of the Company), the
due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.01 to
be kept or performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) reasonably satisfactory
in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired
such property.
Section
..02 Successor Entity
Substituted.
(a) In case of any such
consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series
Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been
named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
(b) In case of any such
consolidation, merger, sale, conveyance, transfer or other
disposition, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as
may be appropriate.
(c) Nothing contained
in this Article shall require any action by the Company in the case
of a consolidation or merger of any Person into the Company where
the Company is the survivor of such transaction, or the acquisition
by the Company, by purchase or otherwise, of all or any part of the
property of any other Person (whether or not affiliated with the
Company).
25
ARTICLE
11
SATISFACTION AND DISCHARGE
Section
..01 Satisfaction and Discharge of
Indenture.
If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust
by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such
Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03, 7.10, 11.05 and 13.04, that shall survive until the date of
maturity or redemption date, as the case may be, and Sections 7.06
and 11.05, that shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of
the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such
series.
Section
..02 Discharge of Obligations.
If at
any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Securities of that
series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption,
as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with
the Trustee the obligations of the Company under this Indenture
with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10, 11.05 and 13.04 hereof that shall survive until
such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
..03 Deposited Moneys to be Held in
Trust.
All
moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through
any paying agent (including the Company acting as its own paying
agent), to the holders of the particular series of Securities for
the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
Section
..04 Payment of Moneys Held by Paying
Agents.
In
connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such
moneys or Governmental Obligations.
Section
..05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities
of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the
date upon which the principal of (and premium, if any) or interest
on such Securities shall have respectively become due and payable,
or such other shorter period set forth in applicable escheat or
abandoned or unclaimed property law, shall be repaid to the Company
on May 31 of each year or upon the Company’s request or (if
then held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as a general creditor, look
only to the Company for the payment thereof.
26
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
Section
..01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood
that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.
27
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section
..01 Effect on Successors and
Assigns.
All the
covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
Section
..02 Actions by Successor.
Any act
or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the
Company.
Section
..03 Surrender of Company
Powers.
The
Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any
successor corporation.
Section
..04 Notices.
Except
as otherwise expressly provided herein, any notice, request or
demand that by any provision of this Indenture is required or
permitted to be given, made or served by the Trustee, the Security
Registrar, any paying or other agent under this Indenture or by the
holders of Securities or by any other Person pursuant to this
Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: 10900 Wilshire Blvd., Suite 650, Los Angeles,
CA 90024. Any notice, election, request or demand by the Company or
any Securityholder or by any other Person pursuant to this
Indenture to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
Section
..05 Governing Law; Jury Trial
Waiver.
This
Indenture and each Security shall be governed by, and construed in
accordance with, the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is
applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF,
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.
Section
..06 Treatment of Securities as
Debt.
It is
intended that the Securities will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this
intention.
Section
..07 Certificates and Opinions as to Conditions
Precedent.
(a) Upon any
application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating
that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.12)
relating to the proposed action have been complied with and, if
requested, an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or
opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant in this
Indenture (other than the certificate to be delivered pursuant to
Section 13.12 of this Indenture or Section 314(a)(1) of the Trust
Indenture Act) shall include (i) a statement that the Person making
such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (iv) a statement
as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.
28
Section
..08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of interest or
principal of any Security or the date of redemption of any Security
shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date
of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
Section
..09 Conflict with Trust Indenture
Act.
If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Section 318(c) of
the Trust Indenture Act, such imposed duties shall
control.
Section
..10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies
of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of
this Indenture as to the parties hereto and may be used in lieu of
the original Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
Section
..11 Separability.
In case
any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.
Section
..12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not
the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from
the principal executive officer, principal financial officer or
principal accounting officer of the Company that a review has been
conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied
with all conditions and covenants under this Indenture. For
purposes of this Section 13.12, such compliance shall be determined
without regard to any period of grace or requirement of notice
provided under this Indenture. If the officer of the Company
signing such certificate has knowledge of such an Event of Default,
the certificate shall describe any such Event of Default and its
status.
Section
..13 U.S.A Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of
the U.S.A. Patriot Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee.
The parties to this Indenture agree that they will provide the
Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
Section
..14 Force Majeure.
In no
event shall the Trustee, the Security Registrar, any paying agent
or any other agent under this Indenture be responsible or liable
for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including without limitation, strikes,
work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions or utilities,
communications or computer (software and hardware) services; it
being understood that the Trustee, the Security Registrar, any
paying agent or any other agent under this Indenture shall use
reasonable efforts which are consistent with accepted practices in
the banking industry to resume performance as soon as practicable
under the circumstances.
Section
..15 Table
of Contents; Headings.
The
table of contents and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or
restrict any of the terms or provisions hereof.
29
In Witness
Whereof, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above
written.
ChromaDex Corporation
By:
Name:
Title:
[Trustee], as
Trustee
By:
Name:
Title:
30
CROSS-REFERENCE TABLE (1)
|
Section of Trust Indenture Act of 1939, as Amended
|
Section of Indenture
|
|
310(a)
|
7.09
|
|
310(b)
|
7.08
|
|
|
7.10
|
|
310(c)
|
Inapplicable
|
|
311(a)
|
7.13
|
|
311(b)
|
7.13
|
|
311(c)
|
Inapplicable
|
|
312(a)
|
5.01
|
|
|
5.02(a)
|
|
312(b)
|
5.02(c)
|
|
312(c)
|
5.02(c)
|
|
313(a)
|
5.04(a)
|
|
313(b)
|
5.04(b)
|
|
313(c)
|
5.04(a)
|
|
|
5.04(b)
|
|
313(d)
|
5.04(c)
|
|
314(a)
|
5.03
|
|
|
13.12
|
|
314(b)
|
Inapplicable
|
|
314(c)
|
13.07(a)
|
|
314(d)
|
Inapplicable
|
|
314(e)
|
13.07(b)
|
|
314(f)
|
Inapplicable
|
|
315(a)
|
7.01(a)
|
|
|
7.01(b)
|
|
315(b)
|
7.14
|
|
315(c)
|
7.01
|
|
315(d)
|
7.01(b)
|
|
315(e)
|
6.07
|
|
316(a)
|
6.06
|
|
|
8.04
|
|
316(b)
|
6.04
|
|
316(c)
|
8.01
|
|
317(a)
|
6.02
|
|
317(b)
|
4.03
|
|
318(a)
|
13.09
|
_________________
(1)
This
Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its
terms or provisions.
31
Exhibit
4.13
ChromaDex Corporation
and
Form of Common Stock
Warrant Agreement
Dated As Of __________
ChromaDex Corporation Form of
Common Stock Warrant Agreement
This Common Stock
Warrant Agreement (this “Agreement”),
dated as of [●], between ChromaDex
Corporation, a Delaware corporation (the “Company”), and
[●], a [corporation] [national banking association] organized
and existing under the laws of [●] and having a corporate
trust office in [●], as warrant agent (the
“Warrant
Agent”).
Whereas, the
Company proposes to sell [If Warrants are sold with other
securities —[title of such other
securities being offered] (the “Other
Securities”) with]
warrant certificates evidencing one or more warrants (the
“Warrants” or,
individually, a “Warrant”)
representing the right to purchase Common Stock of the Company, par
value $0.001 per share (the “Warrant
Securities”), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein
called the “Warrant
Certificates”; and
Whereas, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of
the Warrant Certificates and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and
replaced.
Now Therefore,
in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants
alone —Upon
issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other
Securities and Warrants —Warrant Certificates will be issued
in connection with the issuance of the Other Securities but shall
be separately transferable and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained
herein and therein, to purchase one Warrant Security. [If Other
Securities and Warrants —Warrant Certificates will be issued
with the Other Securities and each Warrant Certificate will
evidence [●] Warrants for each [$[●] principal amount]
[[●] shares] of Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case
any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease
to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The
term “holder” or
“holder
of a Warrant Certificate” as used herein shall mean
any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent
for that purpose.
1.3 Issuance
of
Warrant Certificates.
Warrant Certificates evidencing the right to purchase Warrant
Securities may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign
such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
1
ARTICLE 2
WARRANT PRICE,
DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to
purchase the number of Warrant Securities specified in the
applicable Warrant Certificate at an exercise price of $[●]
per Warrant Security, subject to adjustment upon the occurrence of
certain events, as hereinafter provided. Such purchase price per
Warrant Security is referred to in this Agreement as the
“Warrant
Price.”
2.2 Duration
of
Warrants. Each Warrant may be exercised in whole or in part
at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on
[●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant
Agent (the “Expiration
Date”). Each Warrant not exercised at or before
[●] p.m., [City] time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall
cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised
to purchase a whole number of Warrant Securities in registered form
by providing certain information as set forth on the reverse side
of the Warrant Certificate and by paying in full, in lawful money
of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds] the Warrant Price for each
Warrant Security with respect to which a Warrant is being exercised
to the Warrant Agent at its corporate trust office, provided that
such exercise is subject to receipt within five business days of
such payment by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on
the reverse side of the Warrant Certificate properly completed and
duly executed. The date on which payment in full of the Warrant
Price is received by the Warrant Agent shall, subject to receipt of
the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised; provided, however, that if, at the
date of receipt of such Warrant Certificates and payment in full of
the Warrant Price, the transfer books for the Warrant Securities
purchasable upon the exercise of such Warrants shall be closed, no
such receipt of such Warrant Certificates and no such payment of
such Warrant Price shall be effective to constitute the person so
designated to be named as the holder of record of such Warrant
Securities on such date, but shall be effective to constitute such
person as the holder of record of such Warrant Securities for all
purposes at the opening of business on the next succeeding day on
which the transfer books for the Warrant Securities purchasable
upon the exercise of such Warrants shall be opened, and the
certificates for the Warrant Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on
such next succeeding day on which the transfer books shall next be
opened, and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Securities. The Warrant
Agent shall deposit all funds received by it in payment of the
Warrant Price in an account of the Company maintained with it and
shall advise the Company by telephone at the end of each day on
which a payment for the exercise of Warrants is received of the
amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in
writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Securities with
respect to which Warrants were exercised, (ii) the instructions of
each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for
the remaining Warrant Securities after such exercise, and (iv) such
other information as the Company shall reasonably
require.
(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which
such holder is entitled, in fully registered form, registered in
such name or names as may be directed by such holder. If fewer than
all of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and
in the event that any such transfer is involved, the Company shall
not be required to issue or deliver any Warrant Security until such
tax or other charge shall have been paid or it has been established
to the Company’s satisfaction that no such tax or other
charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Securities, a
number of shares sufficient to provide for the exercise of the
Warrants.
2
ARTICLE 3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1 No
Rights as Warrant
Securityholder Conferred by Warrants or Warrant Certificates. No Warrant
Certificate or Warrant evidenced thereby shall entitle the holder
thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights, except to the extent expressly set
forth in this Agreement or the applicable Warrant
Certificate.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like number of Warrant
Securities. Upon the issuance of any new Warrant Certificate under
this Section 3.2, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section 3.2 in lieu of any lost, stolen
or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section 3.2 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder
of
Warrant Certificate May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder
of any Warrant Securities or the holder of any other Warrant
Certificate, may, in such holder’s own behalf and for such
holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, such holder’s right to
exercise the Warrants evidenced by such holder’s Warrant
Certificate in the manner provided in such holder’s Warrant
Certificate and in this Agreement.
3.4 Adjustments.
(a) In
case the Company shall at any time subdivide its outstanding shares
of Common Stock into a greater number of shares, the Warrant Price
in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Securities
purchasable under the Warrants shall be proportionately increased.
Conversely, in case the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall
be proportionately increased and the number of Warrant Securities
purchasable under the Warrants shall be proportionately
decreased.
(b) If
at any time or from time to time the holders of Common Stock (or
any shares of stock or other securities at the time receivable upon
the exercise of the Warrants) shall have received or become
entitled to receive, without payment therefor,
(i) Common
Stock or any shares of stock or other securities which are at any
time directly or indirectly convertible into or exchangeable for
Common Stock, or any rights or options to subscribe for, purchase
or otherwise acquire any of the foregoing by way of dividend or
other distribution;
(ii) any
cash paid or payable otherwise than as a cash dividend paid or
payable out of the Company’s current or retained
earnings;
(iii) any
evidence of the Company’s indebtedness or rights to subscribe
for or purchase the Company’s indebtedness; or
(iv) Common
Stock or additional stock or other securities or property
(including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement (other
than shares of Common Stock issued as a stock split or adjustments
in respect of which shall be covered by the terms of Section 3.4(a)
above), then and in each such case, the holder of each Warrant
shall, upon the exercise of the Warrant, be entitled to receive, in
addition to the number of Warrant Securities receivable thereupon,
and without payment of any additional consideration therefore, the
amount of stock and other securities and property (including cash
and indebtedness or rights to subscribe for or purchase
indebtedness) which such holder would hold on the date of such
exercise had such holder been the holder of record of such Warrant
Securities as of the date on which holders of Common Stock received
or became entitled to receive such shares or all other additional
stock and other securities and property.
(c) In
case of (i) any reclassification, capital reorganization, or change
in the Common Stock of the Company (other than as a result of a
subdivision, combination, or stock dividend provided for in
Section 3.4(a) or Section 3.4(b) above), (ii) share exchange,
merger or similar transaction of the Company with or into another
person or entity (other than a share exchange, merger or similar
transaction in which the Company is the acquiring or surviving
corporation and which does not result in any change in the Common
Stock other than the issuance of additional shares of Common Stock)
or (iii) the sale, exchange, lease, transfer or other disposition
of all or substantially all of the properties and assets of the
Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization
Event, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be
delivered to the holders of the Warrants, so that the holders of
the Warrants shall have the right at any time prior to the
expiration of the Warrants to purchase, at a total price equal to
that payable upon the exercise of the Warrants, the kind and amount
of shares of stock and other securities and property receivable in
connection with such Reorganization Event by a holder of the same
number of Warrant Securities as were purchasable by the holders of
the Warrants immediately prior to such Reorganization Event. In any
such case appropriate provisions shall be made with respect to the
rights and interests of the holders of the Warrants so that the
provisions hereof shall thereafter be applicable with respect to
any shares of stock or other securities and property deliverable
upon exercise the Warrants, and appropriate adjustments shall be
made to the Warrant Price payable hereunder provided the aggregate
purchase price shall remain the same. In the case of any
transaction described in clauses (ii) and (iii) above, the Company
shall thereupon be relieved of any further obligation hereunder or
under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming entity thereupon may cause
to be signed, and may issue either in its own name or in the name
of the Company, any or all of the Warrants issuable hereunder which
heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of
its obligations to deliver Warrant Securities upon exercise of the
Warrants. All the Warrants so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Warrants
theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Warrants had been issued at
the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued
as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such
Reorganization Event complies with the provisions of this Section
3.4.
3
(d) The
Company may, at its option, at any time until the Expiration Date,
reduce the then current Warrant Price to any amount deemed
appropriate by the Board of Directors of the Company for any period
not exceeding twenty consecutive days (as evidenced in a resolution
adopted by such Board of Directors), but only upon giving the
notices required by Section 3.5 at least ten days prior to taking
such action.
(e) Except
as herein otherwise expressly provided, no adjustment in the
Warrant Price shall be made by reason of the issuance of shares of
Common Stock, or securities convertible into or exchangeable for
shares of Common Stock, or securities carrying the right to
purchase any of the foregoing or for any other reason
whatsoever.
(f) No
fractional Warrant Securities shall be issued upon the exercise of
Warrants. If more than one Warrant shall be exercised at one time
by the same holder, the number of full Warrant Securities which
shall be issuable upon such exercise shall be computed on the basis
of the aggregate number of Warrant Securities purchased pursuant to
the Warrants so exercised. Instead of any fractional Warrant
Security which would otherwise be issuable upon exercise of any
Warrant, the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the last
reported sale price (or bid price if there were no sales) per
Warrant Security, in either case as reported on the principal
registered national securities exchange on which the Warrant
Securities are listed or admitted to trading on the business day
that next precedes the day of exercise or, if the Warrant
Securities are not then listed or admitted to trading on any
registered national securities exchange, the average of the closing
high bid and low asked prices as reported on the OTC Bulletin Board
Service (the “OTC Bulletin
Board”) operated by the Financial Industry Regulatory
Authority, Inc. (“FINRA” ) or,
if not available on the OTC Bulletin Board, then the average of the
closing high bid and low asked prices as reported on any other U.S.
quotation medium or inter-dealer quotation system on such date, or
if on any such date the Warrant Securities are not listed or
admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on
any other U.S. quotation medium or inter-dealer quotation system,
an amount equal to the same fraction of the average of the closing
bid and asked prices as furnished by any FINRA member firm selected
from time to time by the Company for that purpose at the close of
business on the business day that next precedes the day of
exercise.
(g) Whenever
the Warrant Price then in effect is adjusted as herein provided,
the Company shall mail to each holder of the Warrants at such
holder’s address as it shall appear on the books of the
Company a statement setting forth the adjusted Warrant Price then
and thereafter effective under the provisions hereof, together with
the facts, in reasonable detail, upon which such adjustment is
based.
(h) Notwithstanding
anything to the contrary herein, in no event shall the Warrant
Price, as adjusted in accordance with the terms hereof, be less
than the par value per share of Common Stock.
3.5 Notice
to Warrantholders. In case
the Company shall (a) effect any dividend or distribution described
in Section 3.4(b), (b) effect any Reorganization Event, (c) make
any distribution on or in respect of the Common Stock in connection
with the dissolution, liquidation or winding up of the Company, or
(d) reduce the then current Warrant Price pursuant to Section
3.4(d), then the Company shall mail to each holder of Warrants at
such holder’s address as it shall appear on the books of the
Warrant Agent, at least ten days prior to the applicable date
hereinafter specified, a notice stating (x) the record date for
such dividend or distribution, or, if a record is not to be taken,
the date as of which the holders of record of Common Stock that
will be entitled to such dividend or distribution are to be
determined, (y) the date on which such Reorganization Event,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon
such Reorganization Event, dissolution, liquidation or winding up,
or (z) the first date on which the then current Warrant Price shall
be reduced pursuant to Section 3.4(d). No failure to mail such
notice nor any defect therein or in the mailing thereof shall
affect any such transaction or any adjustment in the Warrant Price
required by Section 3.4.
3.6 [If
the Warrants are Subject to Acceleration by the
Company, Insert — Acceleration of Warrants by the
Company.
(a) At
any time on or after [●], the Company shall have the right to
accelerate any or all Warrants at any time by causing them to
expire at the close of business on the day next preceding a
specified date (the “Acceleration
Date”), if the Market Price (as hereinafter defined)
of the Common Stock equals or exceeds [●] percent
([●]%) of the then effective Warrant Price on any twenty
Trading Days (as hereinafter defined) within a period of thirty
consecutive Trading Days ending no more than five Trading Days
prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
(b) (b)
“Market
Price” for each Trading Day shall be, if the Common
Stock is listed or admitted to trading on any registered national
securities exchange, the last reported sale price, regular way (or,
if no such price is reported, the average of the reported closing
bid and asked prices, regular way) of Common Stock, in either case
as reported on the principal registered national securities
exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any registered national
securities exchange, the average of the closing high bid and low
asked prices as reported on the OTC Bulletin Board operated by
FINRA, or if not available on the OTC Bulletin Board, then the
average of the closing high bid and low asked prices as reported on
any other U.S. quotation medium or inter-dealer quotation system,
or if on any such date the shares of Common Stock are not listed or
admitted to trading on a registered national securities exchange,
are not included in the OTC Bulletin Board, and are not quoted on
any other U.S. quotation medium or inter-dealer quotation system,
the average of the closing bid and asked prices as furnished by any
FINRA member firm selected from time to time by the Company for
that purpose. “Trading Day” shall be each Monday
through Friday, other than any day on which securities are not
traded in the system or on the exchange that is the principal
market for the Common Stock, as determined by the Board of
Directors of the Company. In the event of an acceleration of less
than all of the Warrants, the Warrant Agent shall select the
Warrants to be accelerated by lot, pro rata or in such other manner
as it deems, in its discretion, to be fair and
appropriate.
(c) Notice
of an acceleration specifying the Acceleration Date shall be sent
by mail first class, postage prepaid, to each registered holder of
a Warrant Certificate representing a Warrant accelerated at such
holder’s address appearing on the books of the Warrant Agent
not more than sixty days nor less than thirty days before the
Acceleration Date. Such notice of an acceleration also shall be
given no more than twenty days, and no less than ten days, prior to
the mailing of notice to registered holders of Warrants pursuant to
this Section 3.6, by publication at least once in a newspaper of
general circulation in the City of New York.
(d) Any
Warrant accelerated may be exercised until [●] p.m., [City]
time, on the business day next preceding the Acceleration Date. The
Warrant Price shall be payable as provided in Section
2.]
4
ARTICLE 4
EXCHANGE AND
TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at
the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same
aggregate number of Warrant Securities as the Warrant Certificates
so surrendered. The Warrant Agent shall keep, at its corporate
trust office, books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the
Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange
or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Security or a number of Warrants for a whole
number of Warrant Securities and a fraction of a Warrant Security.
All Warrant Certificates issued upon any exchange or registration
of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificate
surrendered for such exchange or registration of
transfer.
4.2 Treatment
of
Holders of Warrant Certificates. The Company, the Warrant Agent and all
other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary
notwithstanding.
4.3 Cancellation
of
Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to the Company, be delivered to the Warrant Agent and
all Warrant Certificates surrendered or so delivered to the Warrant
Agent shall be promptly canceled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange
therefor or in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time or otherwise dispose of canceled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE
WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant
Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein
set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and
conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
5.2 Conditions
of
Warrant Agent’s Obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a) Compensation
and
Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b) Agent
for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the
Warrant Agent is acting solely as agent of the Company and does not
assume any obligations or relationship of agency or trust for or
with any of the holders of Warrant Certificates or beneficial
owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Securities or other obligations of the Company
as freely as if it were not the Warrant Agent hereunder. Nothing in
this Agreement shall be deemed to prevent the Warrant Agent from
acting as trustee under any indenture to which the Company is a
party.
5
(f) No
Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for
interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant
Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement
or any of the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by
the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.2
hereof, to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment
of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be
a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.2(a)
shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or
under any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or
its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
6
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices
and Demands to the
Company and Warrant
Agent. If the Warrant Agent shall receive any notice or
demand addressed to the Company by the holder of a Warrant
Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with
respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to
ChromaDex Corporation 10900 Wilshire Blvd., Suite 650, Los Angeles,
California 90024, Attention: [●] (or such other address as
shall be specified in writing by the Warrant Agent or by the
Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
of Prospectus. The Company
shall furnish to the Warrant Agent sufficient copies of a
prospectus meeting the requirements of the Securities Act of 1933,
as amended, relating to the Warrant Securities deliverable upon
exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant,
the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with
the delivery of the Warrant Securities issued upon such exercise, a
Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of
such Prospectus.
6.6 Obtaining
of Governmental Approvals.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and
securities act filings under United States Federal and state laws
(including without limitation a registration statement in respect
of the Warrants and Warrant Securities under the Securities Act of
1933, as amended), which may be or become requisite in connection
with the issuance, sale, transfer, and delivery of the Warrant
Securities issued upon exercise of the Warrants, the issuance,
sale, transfer and delivery of the Warrants or upon the expiration
of the period during which the Warrants are
exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement
shall give to any person other than the Company, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
6.10 Inspection
of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit such holder’s Warrant Certificate for inspection
by it.
7
In Witness
Whereof, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above
written.
ChromaDex
Corporation, as Company
By:
Name:
Title:
Attest:
Countersigned
[●], as
Warrant Agent
By:
Name:
Title:
Attest:
[Signature Page to ChromaDex Corporation Common Stock Warrant
Agreement]
Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED
HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
CHROMADEX CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
COMMON STOCK, PAR VALUE $0.001 PER SHARE
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No.
[●]
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[●]
Warrants
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This
certifies that [●] or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after [●]
p.m., [City] time, [on [●] and] on or before [●] p.m.,
[City] time, on [●], [●] shares of Common Stock,
par value $0.001 per share (the “Warrant
Securities”), of ChromaDex Corporation (the
“Company”) on
the following basis: during the period from [●], through and
including [●], the exercise price per Warrant Security will
be $[●], subject to adjustment as provided in the Warrant
Agreement (as hereinafter defined) (the “Warrant
Price”). The Holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the
back hereof and by paying in full, in lawful money of the United
States of America, [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price for each Warrant
Security with respect to which this Warrant is exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly
executed, at the corporate trust office of [name of Warrant Agent],
or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address
specified on the reverse hereof, and upon compliance with and
subject to the conditions set forth herein and in the Warrant
Agreement (as hereinafter defined).
The
term “Holder” as
used herein shall mean the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to
Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to
purchase a whole number of Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by
this Warrant Certificate, there shall be issued to the Holder
hereof a new Warrant Certificate evidencing Warrants for the number
of Warrant Securities remaining unexercised.
This
Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of [●] (the “Warrant
Agreement”), between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
Transfer
of this Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s
assigns, in the manner and subject to the limitations provided in
the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for
Warrant Certificates representing Warrants for the same aggregate
number of Warrant Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of dividends or
distributions, if any, on the Warrant Securities (except to the
extent set forth in the Warrant Agreement) or to exercise any
voting rights.
Reference
is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
In Witness Whereof, the Company has caused this Warrant to
be executed in its name and on its behalf by the facsimile
signatures of its duly authorized officers.
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Dated:
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ChromaDex Corporation, as Company
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By:
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Name:
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Title:
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ATTEST:
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COUNTERSIGNED
[●], as Warrant Agent
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By:
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Name:
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Title:
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ATTEST:
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[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Securities (as
hereinafter defined), the Holder must pay, in lawful money of the
United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [●] [address of Warrant Agent],
Attention: [●], which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below
and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the
payment.
(To be
executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase _______ shares
of the Common Stock, par value $0.001 per share (the
“Warrant
Securities”), of ChromaDex Corporation and represents
that the undersigned has tendered payment for such Warrant
Securities, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of ChromaDex Corporation, c/o
[insert name and address of Warrant Agent], in the amount of
$_________ in accordance with the terms hereof. The undersigned
requests that said Warrant Securities be in fully registered form
in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set
forth below.
If the
number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the number of Warrant
Securities remaining unexercised be issued and delivered to the
undersigned unless otherwise specified in the instructions
below.
Dated:
Name:
Please
Print
Address:
(Insert
Social Security or Other Identifying Number of
Holder)
Signature
Guaranteed:
Signature
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses: By hand
at:
[●]
By mail
at:
[Instructions
as to form and delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing Warrants for the number of Warrant
Securities remaining unexercised—complete as
appropriate.]
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
For Value
Received,
______________ hereby sells, assigns and transfers
unto:
(Please print name
and address including zip code)
Please print Social
Security or other identifying number
the
right represented by the within Warrant to purchase _______________
shares of [Title of Warrant Securities] of ChromaDex Corporation to
which the within Warrant relates and appoints ____________________
attorney to transfer such right on the books of the Warrant Agent
with full power of substitution in the premises.
Dated:
Name:
Signature
(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant)
Signature
Guaranteed
Exhibit
4.14
ChromaDex Corporation
and
Form of Debt Securities
Warrant Agreement
Dated As Of __________
ChromaDex Corporation Form of
Debt Securities Warrant Agreement
This Debt Securities
Warrant Agreement (this “Agreement”),
dated as of [●], between ChromaDex
Corporation, a Delaware corporation (the “Company”), and
[●], a [corporation] [national banking association] organized
and existing under the laws of [●] and having a corporate
trust office in [●], as warrant agent (the
“Warrant
Agent”).
WHEREAS, the Company has
entered into an indenture dated as of [●] (the “Indenture”),
with [●], as trustee
(such trustee, and any successors to such trustee, herein called
the “Trustee”),
providing for the issuance from time to time of its debt
securities, to be issued in one or more series as provided in the
Indenture (the “Debt
Securities”);
Whereas, the
Company proposes to sell [If Warrants
are sold with other securities —[title of such other securities being
offered] (the “Other
Securities”) with]
warrant certificates evidencing one or more warrants (the
“Warrants”
or, individually, a “Warrant”)
representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the “Warrant
Debt Securities”),
such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the “Warrant
Certificates”;
and
Whereas, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement
wishes to set forth, among other things, the form and provisions of
the Warrant Certificates and the terms and conditions on which they
may be issued, registered, transferred, exchanged, exercised and
replaced.
Now Therefore,
in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
ISSUANCE
OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT
CERTIFICATES
1.1 Issuance
of Warrants. [If Warrants
alone — Upon
issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other
Securities and Warrants — Warrant Certificates will be issued
in connection with the issuance of the Other Securities but shall
be separately transferable and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained
herein and therein, to purchase one Warrant Debt Security.
[If Other
Securities and Warrants — Warrant Certificates will be issued
with the Other Securities and each Warrant Certificate will
evidence [●] Warrants for
each [$[●] principal
amount] [[●] shares] of
Other Securities issued.]
1.2 Execution
and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated the
date of its countersignature by the Warrant Agent and may have such
letters, numbers, or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may
approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of the Company by any of its present or future
chief executive officers, presidents, senior vice presidents, vice
presidents, chief financial officers, chief legal officers,
treasurers, assistant treasurers, controllers, assistant
controllers, secretaries or assistant secretaries under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be
imprinted or otherwise reproduced on the Warrant Certificates. The
seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates.
No
Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant
Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued
hereunder.
In case
any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease
to be such officer before the Warrant Certificates so signed shall
have been countersigned and delivered by the Warrant Agent, such
Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant
Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such person was
not such officer.
The
term “holder” or
“holder
of a Warrant Certificate” as used herein shall mean
any person in whose name at the time any Warrant Certificate shall
be registered upon the books to be maintained by the Warrant Agent
for that purpose.
1.3 Issuance
of
Warrant Certificates.
Warrant Certificates evidencing the right to purchase Warrant Debt
Securities may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Agreement or from time to
time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign
such Warrant Certificates and shall deliver such Warrant
Certificates to or upon the order of the Company.
1
ARTICLE 2
WARRANT PRICE,
DURATION AND EXERCISE OF WARRANTS
2.1 Warrant
Price. During the period specified in Section 2.2, each
Warrant shall, subject to the terms of this Agreement and the
applicable Warrant Certificate, entitle the holder thereof to
purchase the principal amount of Warrant Debt Securities specified
in the applicable Warrant Certificate at an exercise price of
[●]% of the principal
amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued
interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no
interest shall have been paid on the Warrant Debt Securities, from
the date of their initial issuance.] [The original issue discount
($[●] for each $1,000
principal amount of Warrant Debt Securities) will be amortized at a
[●]% annual rate,
computed on a[n] [semi-] annual basis [using a 360-day year
consisting of twelve 30-day months].] Such purchase price for the
Warrant Debt Securities is referred to in this Agreement as the
“Warrant
Price.
2.2 Duration
of
Warrants. Each Warrant may be exercised in whole or in part
at any time, as specified herein, on or after [the date thereof]
[●] and at or before [●] p.m., [City] time, on
[●] or such later date as the Company may designate by notice
to the Warrant Agent and the holders of Warrant Certificates mailed
to their addresses as set forth in the record books of the Warrant
Agent (the “Expiration
Date”). Each Warrant not exercised at or before
[●] p.m., [City] time, on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall
cease.
2.3 Exercise
of Warrants.
(a) During
the period specified in Section 2.2, the Warrants may be exercised
to purchase a whole number of Warrant Debt Securities in registered
form by providing certain information as set forth on the reverse
side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by
bank wire transfer in immediately available funds] the Warrant
Price for each Warrant Debt Security with respect to which a
Warrant is being exercised to the Warrant Agent at its corporate
trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of
the Warrant Certificate with the form of election to purchase
Warrant Debt Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificate
as aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of
such Warrant Certificates and payment in full of the Warrant Price,
the transfer books for the Warrant Debt Securities purchasable upon
the exercise of such Warrants shall be closed, no such receipt of
such Warrant Certificates and no such payment of such Warrant Price
shall be effective to constitute the person so designated to be
named as the holder of record of such Warrant Debt Securities on
such date, but shall be effective to constitute such person as the
holder of record of such Warrant Debt Securities for all purposes
at the opening of business on the next succeeding day on which the
transfer books for the Warrant Debt Securities purchasable upon the
exercise of such Warrants shall be opened, and the certificates for
the Warrant Debt Securities in respect of which such Warrants are
then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened,
and until such date the Company shall be under no duty to deliver
any certificate for such Warrant Debt Securities. The Warrant Agent
shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a
payment for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm
such telephone advice to the Company in writing.
(b) The
Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrant Debt Securities
with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Debt
Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if
any, of the Warrants for the remaining Warrant Debt Securities
after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require.
(c) As
soon as practicable after the exercise of any Warrant, the Company
shall issue pursuant to the Indenture, in authorized denominations,
to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such
name or names as may be directed by such holder. If fewer than all
of the Warrants evidenced by such Warrant Certificate are
exercised, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing Warrants for the number of Warrant
Debt Securities remaining unexercised.
(d) The
Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Debt Securities,
and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Debt
Securities until such tax or other charge shall have been paid or
it has been established to the Company’s satisfaction that no
such tax or other charge is due.
(e) Prior
to the issuance of any Warrants there shall have been reserved, and
the Company shall at all times through the Expiration Date keep
reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the
exercise of the Warrants.
2
ARTICLE
3
OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT
CERTIFICATES
3.1 No
Rights as Holder of Warrant
Debt Securities Conferred by Warrants or Warrant Certificates. No Warrant
Certificate or Warrant evidenced thereby shall entitle the holder
thereof to any of the rights of a holder of Warrant Debt
Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants
in the Indenture.
3.2 Lost,
Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Warrant Agent of evidence reasonably satisfactory to
it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the
Company and, in the case of mutilation, upon surrender of the
mutilated Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a
bona fide purchaser, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, in exchange for or in lieu of the lost, stolen, destroyed
or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing Warrants for a like principal amount of
Warrant Debt Securities. Upon the issuance of any new Warrant
Certificate under this Section 3.2, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed
and delivered pursuant to this Section 3.2 in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not
the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits
of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder.
The provisions of this Section 3.2 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
3.3 Holder
of
Warrant Certificate May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, , the
Trustee, the holder of any Warrant Debt Securities or the holder of
any other Warrant Certificate, may, in such holder’s own
behalf and for such holder’s own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, such
holder’s right to exercise the Warrants evidenced by such
holder’s Warrant Certificate in the manner provided in such
holder’s Warrant Certificates and in this
Agreement.
3.4 Merger,
Sale, Conveyance or Lease. In case of (a) any share
exchange, merger or similar transaction of the Company with or into
another person or entity (other than a share exchange, merger or
similar transaction in which the Company is the acquiring or
surviving corporation) or (b) the sale, exchange, lease, transfer
or other disposition of all or substantially all of the properties
and assets of the Company as an entirety (in any such case, a
“Reorganization
Event”), then, as
a condition of such Reorganization Event, lawful provisions shall
be made, and duly executed documents evidencing the same from the
Company’s successor shall
be delivered to the holders of the Warrants, so that such successor
shall succeed to and be substituted for the Company, and assume all
the Company’s obligations
under, this Agreement and the Warrants. The Company shall thereupon
be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming entity thereupon may cause
to be signed, and may issue either in its own name or in the name
of the Company, any or all of the Warrants issuable hereunder which
heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of
its obligations to deliver Warrant Debt Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have
the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Warrants had been
issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not
in substance) may be made in the Warrants thereafter to be issued
as may be appropriate. The Warrant Agent may receive a written
opinion of legal counsel as conclusive evidence that any such
Reorganization Event complies with the provisions of this Section
3.4.
3.5 Notice
to Warrantholders. In case
the Company shall (a) effect any Reorganization Event or (b) make
any distribution on or in respect of the [title of Warrant Debt
Securities] in connection with the dissolution, liquidation or
winding up of the Company, then the Company shall mail to each
holder of Warrants at such holder’s address as it shall appear on the
books of the Warrant Agent, at least ten days prior to the
applicable date hereinafter specified, a notice stating the date on
which such Reorganization Event, dissolution, liquidation or
winding up is expected to become effective, and the date as of
which it is expected that holders of [title of Warrant Debt
Securities] of record shall be entitled to exchange their shares of
[title of Warrant Debt Securities] for securities or other property
deliverable upon such Reorganization Event, dissolution,
liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof shall affect any such
transaction.
3
ARTICLE 4
EXCHANGE AND
TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange
and Transfer of Warrant Certificates. Upon surrender at
the corporate trust office of the Warrant Agent, Warrant
Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence Warrants for the same
aggregate principal amount of Warrant Debt Securities as the
Warrant Certificates so surrendered. The Warrant Agent shall keep,
at its corporate trust office, books in which, subject to such
reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding
Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any
exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any
stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are so surrendered for exchange
or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant
Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any
exchange or registration of transfer which will result in the
issuance of a Warrant Certificate evidencing a Warrant for a
fraction of a Warrant Debt Security or a number of Warrants for a
whole number of Warrant Debt Securities and a fraction of a Warrant
Debt Security. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and
entitled to the same benefits under this Agreement as the Warrant
Certificate surrendered for such exchange or registration of
transfer.
4.2 Treatment
of
Holders of Warrant Certificates. The Company, the Warrant Agent and all
other persons may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary
notwithstanding.
4.3 Cancellation
of
Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to the Company, be delivered to the Warrant Agent and
all Warrant Certificates surrendered or so delivered to the Warrant
Agent shall be promptly canceled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange
therefor or in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time or otherwise dispose of canceled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE 5
CONCERNING THE
WARRANT AGENT
5.1 Warrant
Agent. The Company hereby appoints [●] as Warrant
Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein
set forth, and [●] hereby accepts such appointment. The
Warrant Agent shall have the powers and authority granted to and
conferred upon it in the Warrant Certificates and hereby and such
further powers and authority to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained
in the Warrant Certificates are subject to and governed by the
terms and provisions hereof.
5.2 Conditions
of
Warrant Agent’s Obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a) Compensation
and
Indemnification. The Company agrees promptly to pay the
Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or
willful misconduct by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. The Company also
agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence, bad faith or willful misconduct on the part of the
Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such
liability.
(b) Agent
for the Company. In acting under this
Agreement and in connection with the Warrant Certificates, the
Warrant Agent is acting solely as agent of the Company and does not
assume any obligations or relationship of agency or trust for or
with any of the holders of Warrant Certificates or beneficial
owners of Warrants.
(c) Counsel.
The Warrant Agent may consult with counsel satisfactory to it,
which may include counsel for the Company, and the written advice
of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented
or signed by the proper parties.
(e) Certain
Transactions. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it
were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or
as depositary, trustee or agent for, any committee or body of
holders of Warrant Debt Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder.
Nothing in this Agreement shall be deemed to prevent the Warrant
Agent from acting as trustee under any indenture to which the
Company is a party, including, without limitation, as Trustee under
the Indenture.
4
(f) No
Liability for Interest. Unless otherwise agreed
with the Company, the Warrant Agent shall have no liability for
interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant
Certificates.
(g) No
Liability for Invalidity. The Warrant Agent shall
have no liability with respect to any invalidity of this Agreement
or any of the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon).
(h) No
Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates (except as to the Warrant
Agent’s countersignature thereon), all of which are made
solely by the Company.
(i) No
Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend
to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any of the Warrant
Certificates authenticated by the Warrant Agent and delivered by it
to the Company pursuant to this Agreement or for the application by
the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or
agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a
Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 6.2
hereof, to make any demand upon the Company.
5.3 Resignation,
Removal and Appointment
of Successors.
(a) The
Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised
or are no longer exercisable.
(b) The
Warrant Agent may at any time resign as agent by giving written
notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after
the date on which such notice is given unless the Company otherwise
agrees. The Warrant Agent hereunder may be removed at any time by
the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended
date when it shall become effective. Such resignation or removal
shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be
a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor
Warrant Agent. The obligation of the Company under Section 5.2(a)
shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Warrant Agent.
(c) In
case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or
under any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or taking
possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or
its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due, or shall take corporate
action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have
been entered in respect of the Warrant Agent in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal or state bankruptcy, insolvency or
similar law, or a decree or order by a court having jurisdiction in
the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the
Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a
successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any
successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant
Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any
corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and business
of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
5
ARTICLE 6
MISCELLANEOUS
6.1 Amendment.
This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose
of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not materially
adversely affect the interests of the holders of the Warrant
Certificates.
6.2 Notices
and Demands to the
Company and Warrant
Agent. If the Warrant Agent shall receive any notice or
demand addressed to the Company by the holder of a Warrant
Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to
the Company.
6.3 Addresses.
Any communication from the Company to the Warrant Agent with
respect to this Agreement shall be addressed to [●],
Attention: [●] and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to
ChromaDex Corporation, 10900 Wilshire Blvd., Suite 650, Los
Angeles, California 90024, Attention: [●] (or such other
address as shall be specified in writing by the Warrant Agent or by
the Company).
6.4 Governing
Law. This Agreement and each Warrant Certificate issued
hereunder shall be governed by and construed in accordance with the
laws of the State of New York.
6.5 Delivery
of Prospectus. The Company
shall furnish to the Warrant Agent sufficient copies of a
prospectus meeting the requirements of the Securities Act of 1933,
as amended, relating to the Warrant Debt Securities deliverable
upon exercise of the Warrants (the “Prospectus”),
and the Warrant Agent agrees that upon the exercise of any Warrant,
the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with
the delivery of the Warrant Debt Securities issued upon such
exercise, a Prospectus. The Warrant Agent shall not, by reason of
any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
6.6 Obtaining
of Governmental Approvals.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and
securities act filings under United States Federal and state laws
(including without limitation a registration statement in respect
of the Warrants and Warrant Debt Securities under the Securities
Act of 1933, as amended), which may be or become requisite in
connection with the issuance, sale, transfer, and delivery of the
Warrant Debt Securities issued upon exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the
expiration of the period during which the Warrants are
exercisable.
6.7 Persons
Having Rights Under the Agreement. Nothing in this Agreement
shall give to any person other than the Company, the Warrant Agent
and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
6.8 Headings.
The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which as so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same
instrument.
6.10 Inspection
of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit such holder’s Warrant Certificate for inspection
by it.
6
In Witness
Whereof, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above
written.
ChromaDex
Corporation, as Company
By:
Name:
Title:
Attest:
Countersigned
[●], as
Warrant Agent
By:
Name:
Title:
Attest:
[Signature Page to ChromaDex Corporation Debt Securities Warrant
Agreement]
7
Exhibit A
FORM OF WARRANT CERTIFICATE
[FACE OF WARRANT CERTIFICATE]
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[Form
of Legend if Warrants are not immediately
exercisable.]
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[Prior
to [●], Warrants evidenced by this Warrant Certificate cannot
be exercised.]
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EXERCISABLE
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS PROVIDED
HEREIN
VOID
AFTER [●] P.M., [City] time, ON [●].
8
CHROMADEX CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
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No.
[●]
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[●]
Warrants
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This
certifies that [●] or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant
entitling such owner to purchase, at any time [after [●]
p.m., [City] time, [on [●] and] on or before [●] p.m.,
[City] time, on [●], $[●] principal amount of [TITLE OF
WARRANT DEBT SECURITIES] (the “Warrant Debt
Securities”), of ChromaDex Corporation (the
“Company”)
issued or to be issued under the Indenture (as hereinafter
defined), on the following basis: during the period from
[●], through and
including [●], each
Warrant shall entitle the Holder thereof, subject to the provisions
of this Agreement, to purchase the principal amount of Warrant Debt
Securities stated in the Warrant Certificate at the warrant price
(the “Warrant
Price”) of
[●]% of the principal
amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued
interest, if any, from the most recent date from which interest
shall have been paid on the Warrant Debt Securities or, if no
interest shall have been paid on the Warrant Debt Securities, from
the date of their original issuance]. [The original issue discount
($[●] for each $1,000
principal amount of Warrant Debt Securities) will be amortized at a
[●]% annual rate,
computed on a[n] [semi-]annual basis [using a 360-day year
consisting of twelve 30-day months]. The Holder may exercise the
Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price for
each Warrant Debt Security with respect to which this Warrant is
exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the
“Warrant
Agent”), which is,
on the date hereof, at the address specified on the reverse hereof,
and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter
defined).
The
term “Holder” as
used herein shall mean the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose pursuant to
Section 4 of the Warrant Agreement.
The
Warrants evidenced by this Warrant Certificate may be exercised to
purchase Warrant Debt Securities in the principal amount of $1,000
or any integral multiple thereof in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Holder hereof a
new Warrant Certificate evidencing Warrants for the aggregate
principal amount of Warrant Debt Securities remaining
unexercised.
This
Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of [●] (the “Warrant
Agreement”), between the Company and the Warrant Agent
and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent.
The
Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate will be
issued under and in accordance with an Indenture, dated as of
[●] (the “Indenture”),
between the Company and [●], as trustee (such trustee, and any
successors to such trustee, the “Trustee”)]
and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the
Indenture, including the form of the Warrant Debt Securities, are
on file at the corporate trust office of the Trustee.
Transfer
of this Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the
Warrant Agent by the registered owner or such owner’s
assigns, in the manner and subject to the limitations provided in
the Warrant Agreement.
After
countersignature by the Warrant Agent and prior to the expiration
of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for
Warrant Certificates representing Warrants for the same aggregate
principal amount of Warrant Debt Securities.
This
Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including,
without limitation, the right to receive payments of principal of
(and premium, if any) or interest, if any, on the Warrant Debt
Securities or to enforce any of the covenants of the
Indenture.
Reference
is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
This
Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
9
In Witness Whereof, the Company has caused this Warrant to
be executed in its name and on its behalf by the facsimile
signatures of its duly authorized officers.
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Dated:
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ChromaDex Corporation, as Company
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By:
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Name:
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Title:
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ATTEST:
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COUNTERSIGNED
[●], as Warrant Agent
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By:
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Name:
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Title:
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ATTEST:
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10
[REVERSE OF WARRANT CERTIFICATE]
(Instructions for Exercise of Warrant)
To
exercise any Warrants evidenced hereby for Warrant Debt Securities
(as hereinafter defined), the Holder must pay, in lawful money of
the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [●] [address of Warrant Agent],
Attention: [●], which payment must specify the name of the
Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below
and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent
at the appropriate address set forth above. This Warrant
Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the
payment.
(To be
executed upon exercise of Warrants)
The
undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase _______
$[●] principal amount of the [TITLE OF WARRANT DEBT
SECURITIES] (the “Warrant Debt
Securities”), of ChromaDex Corporation and represents
that the undersigned has tendered payment for such Warrant Debt
Securities, in lawful money of the United States of America, [in
cash or by certified check or official bank check in New York
Clearing House funds] [by bank wire transfer in immediately
available funds], to the order of ChromaDex Corporation, c/o
[insert name and address of Warrant Agent], in the amount of
$_________ in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Debt Securities be
in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in
accordance with the instructions set forth below.
If the
number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant
Certificate evidencing the Warrants for the aggregate principal
amount of Warrant Debt Securities remaining unexercised be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated:
Name:
Please
Print
Address:
(Insert
Social Security or Other Identifying Number of
Holder)
Signature
Guaranteed:
Signature
(Signature
must conform in all respects to name of holder as specified on the
face of this Warrant Certificate and must bear a signature
guarantee by a FINRA member firm).
This
Warrant may be exercised at the following addresses: By hand
at:
[●]
By mail
at:
[Instructions
as to form and delivery of Warrant Debt Securities and, if
applicable, Warrant Certificates evidencing Warrants for the number
of Warrant Debt Securities remaining unexercised—complete as
appropriate.]
11
ASSIGNMENT
[Form
of assignment to be executed if Warrant Holder desires to transfer
Warrant]
For Value
Received,
______________ hereby sells, assigns and transfers
unto:
(Please print name
and address including zip code)
Please print Social
Security or other identifying number
the
right represented by the within Warrant to purchase ________
aggregate principal amount of [Title of Warrant Debt Securities] of
ChromaDex Corporation to which the within Warrant relates and
appoints ____________________ attorney to transfer such right on
the books of the Warrant Agent with full power of substitution in
the premises.
Dated:
Name:
Signature
(Signature must
conform in all respects to name of holder as specified on the face
of the Warrant)
Signature
Guaranteed
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| Exhibit 5.1 |
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Matthew T. Browne
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+1 858 550 6045
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mbrowne@cooley.com
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June
12, 2020
ChromaDex
Corporation
10900
Wilshire Blvd., Suite 650
Los
Angeles, CA 90024
Ladies
and Gentlemen:
We have
acted as counsel to ChromaDex Corporation, a Delaware corporation
(the “Company”), in
connection with the filing of a Registration Statement on
Form S-3 (the “Registration
Statement”) by the Company under the Securities Act of
1933, as amended (the “Securities
Act”). The Registration Statement includes two
prospectuses, (i) a base prospectus (the “Base
Prospectus”) and (ii) a sales agreement prospectus
(the “Sales Agreement
Prospectus”) covering up to $50,000,000 of shares of
common stock, par value $0.001 per share, of the Company
(“Common
Stock”) that may be sold under the At Market Issuance
Sales Agreement, dated June 12, 2020, by and among the Company, B.
Riley FBR, Inc. and Raymond James & Associates, Inc. (such
agreement, the “Sales
Agreement”, and such shares, the “Sales Agreement
Shares”). The Base Prospectus provides it will be
supplemented in the future by one or more prospectus supplements
(each, a “Prospectus
Supplement”). The Registration Statement, including
the Base Prospectus (as supplemented from time to time by one or
more Prospectus Supplements) and the Sales Agreement Prospectus
will provide for the registration by the Company of:
●
shares of Common
Stock (the “Base Prospectus
Shares”);
●
debt securities, in
one or more series (the “Debt
Securities”), which may be issued pursuant to an
indenture to be dated on or about the date of the first issuance of
Debt Securities thereunder, by and between a trustee to be selected
by the Company (the “Trustee”) and
the Company, in the form filed as Exhibit 4.10 to the Registration
Statement and one or more indentures
supplemental thereto with respect to any particular series of Debt
Securities (the “Indenture”);
●
warrants to
purchase Common Stock or Debt Securities (the “Warrants”),
which may be issued under one or more warrant agreements, to be
dated on or about the date of the first issuance of the Warrants
thereunder, by and between a warrant agent to be selected by the
Company (the “Warrant
Agent”) and the Company, in the forms filed as
Exhibits 4.13 and 4.14 to the Registration Statement, respectively
(each, a “Warrant
Agreement”); and
●
the Sales Agreement
Shares.
The
Base Prospectus Shares, the Debt Securities, the Warrants, the
Sales Agreement Shares, plus any additional Common Stock, Debt
Securities and Warrants that may be registered pursuant to any
registration statement that the Company may hereafter file with the
Securities and Exchange Commission pursuant to Rule 462(b) under
the Securities Act in connection with an offering by the Company
pursuant to the Registration Statement, are collectively referred
to herein as the “Securities.”
The Securities are being registered for offer and sale from time to
time pursuant to Rule 415 under the Securities Act.
In
connection with this opinion, we have examined and relied upon the
Registration Statement, the Company’s Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws, each
as currently in effect, and upon originals, or copies certified to
our satisfaction, of such records, documents, certificates,
opinions, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion
expressed below. As to certain factual matters, we have relied upon
a certificate of an officer of the Company and have not
independently verified such matters.
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ChromaDex
Corporation
June
12, 2020
Page
2
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In
rendering this opinion, we have assumed the genuineness and
authenticity of all signatures on original documents; the
authenticity of all documents submitted to us as originals; the
conformity to originals of all documents submitted to us as copies;
the accuracy, completeness and authenticity of certificates of
public officials; and the due authorization, execution and delivery
of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents.
With
respect to our opinion as to the Base Prospectus Shares, we have
assumed that, at the time of issuance and sale, a sufficient number
of shares of Common Stock is authorized and available for issuance
and that the consideration for the issuance and sale of the Base
Prospectus Shares (or Debt Securities convertible into, or Warrants
exercisable for, Common Stock) is in an amount that is not less
than the par value of the Common Stock. We have also assumed that
any Debt Securities or Warrants offered under the Registration
Statement, and the related Indenture and Warrant Agreement will be
executed in the forms filed as exhibits to the Registration
Statement or incorporated by reference therein. We have also
assumed that with respect to any Securities issuable upon
conversion of any convertible Debt Securities or upon exercise of
any Warrants, such convertible Debt Securities or Warrants will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors’ rights, and subject to
general equity principles and to limitations on availability of
equitable relief, including specific performance.
With
respect to the Sales Agreement Shares, we have assumed (i) that the
specific sale of the Sales Agreement Shares will be duly authorized
by the Board of Directors of the Company, a duly authorized
committee thereof or a person or body pursuant to an authorization
granted in accordance with Section 152 of the General Corporation
Law of the State of Delaware (the DGCL”) and
(ii) that no more than 25,000,000 Sales Agreement Shares will be
sold for a consideration not less than
the par value of the Common Stock. With respect to the Sales
Agreement Shares, we express no opinion to the extent that future
issuances of securities of the Company and/or anti-dilution
adjustments to outstanding securities of the Company cause the
number of shares of Common Stock authorized less the sum of the
number of shares outstanding or committed to be issuable upon
conversion or exercise of outstanding securities of the Company to
exceed the number of Sales Agreement Shares then issuable under the
Sales Agreement.
Our
opinion herein is expressed solely with respect to the
DGCL and, as to the
Debt Securities and the Warrants constituting valid and legally
binding obligations of the Company, the laws of the State of New
York. Our opinion is based on these laws as in effect on the date
hereof. We express no opinion to the
extent that any other laws are applicable to the subject matter
hereof and express no opinion and provide no assurance as to
compliance with any federal or state securities law, rule or
regulation.
On the
basis of the foregoing and in reliance thereon, and subject to the
qualifications herein stated, we are of the opinion
that:
1.
With respect to the
Base Prospectus Shares offered under the Registration Statement,
provided that (i) the Registration Statement and any required
post-effective amendment thereto have become effective under the
Securities Act and the Base Prospectus and any and all Prospectus
Supplement(s) required by applicable laws have been delivered and
filed as required by such laws; (ii) the issuance of the Base
Prospectus Shares has been duly authorized by all necessary
corporate action on the part of the Company; (iii) the issuance and
sale of the Base Prospectus Shares do not violate any applicable
law, are in conformity with the Company’s then operative
certificate of incorporation (the “Certificate of
Incorporation”) and bylaws (the “Bylaws”), do
not result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any applicable
requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company; and (iv) the
certificates, if any, for the Base Prospectus Shares have been duly
executed by the Company, countersigned by the transfer agent
therefor and duly delivered to the purchasers thereof against
payment therefor, then the Base Prospectus Shares, when issued and
sold as contemplated in the Registration Statement, the Base
Prospectus and the related Prospectus Supplement(s) and in
accordance with a duly authorized, executed and delivered purchase,
underwriting or similar agreement, or upon conversion of any
convertible Debt Securities in accordance with their terms, or upon
exercise of any Warrants in accordance with their terms, will be
validly issued, fully paid and nonassessable.
2.
With respect to any
series of the Debt Securities issued under the Indenture and
offered under the Registration Statement, provided that (i) the
Registration Statement and any required post-effective amendment
thereto have become effective under the Securities Act and the Base
Prospectus and any and all Prospectus Supplement(s) required by
applicable laws have been delivered and filed as required by such
laws; (ii) the Indenture has been duly authorized by the Company
and the Trustee by all necessary corporate action; (iii) the
Indenture in substantially the form filed as an exhibit to the
Registration Statement, has been duly executed and delivered by the
Company and the Trustee and has been qualified under the Trust
Indenture Act of 1939, as amended; (iv) the issuance and terms of
the Debt Securities have been duly authorized by the Company by all
necessary corporate action; (v) the terms of the Debt Securities
and of their issuance and sale have been duly established in
conformity with the Indenture so as not to violate any applicable
law or result in a default under or breach of any agreement or
instrument binding upon the Company, so as to be in conformity with
the Certificate of Incorporation and Bylaws, and so as to comply
with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and (vi)
the notes representing the Debt Securities have been duly executed
and delivered by the Company and authenticated by the Trustee
pursuant to the Indenture and delivered against payment therefor,
then the Debt Securities, when issued and sold in accordance with
the Indenture and a duly authorized, executed and delivered
purchase, underwriting or similar agreement, or upon exercise of
any Warrants in accordance with their terms, will be valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors’ rights generally, and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding at law or in equity).
3.
With respect to the
Warrants issued under the Warrant Agreements and offered under the
Registration Statement, provided that (i) the Registration
Statement and any required post-effective amendment thereto have
become effective under the Securities Act and the Base Prospectus
and any and all Prospectus Supplement(s) required by applicable
laws have been delivered and filed as required by such laws; (ii)
the Warrant Agreement has been duly authorized by the Company and
the Warrant Agent by all necessary corporate action; (iii) the
Warrant Agreement has been duly executed and delivered by the
Company and the Warrant Agent; (iv) the issuance and terms of the
Warrants have been duly authorized by the Company by all necessary
corporate action; (v) the terms of the Warrants and of their
issuance and sale have been duly established in conformity with the
Warrant Agreement and as described in the Registration Statement,
the Base Prospectus and the related Prospectus Supplement(s), so as
not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company, so
as to be in conformity with the Certificate of Incorporation and
Bylaws, and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over
the Company; and (vi) the Warrants have been duly executed and
delivered by the Company and authenticated by the Warrant Agent
pursuant to the Warrant Agreement and delivered against payment
therefor, then the Warrants, when issued and sold as contemplated
in the Registration Statement, the Base Prospectus and the
Prospectus Supplement(s) and in accordance with the Warrant
Agreement and a duly authorized, executed and delivered purchase,
underwriting or similar agreement, will be valid and legally
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors’ rights
generally, and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding at law or
in equity).
4.
The Sales Agreement
Shares, when issued and paid for in accordance with the Sales
Agreement and as provided in the Sales Agreement Prospectus, will
be validly issued, fully paid and nonassessable.
*****
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ChromaDex
Corporation
June
12, 2020
Page
3
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We
hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the
caption “Legal Matters” in the Base Prospectus and the
Sales Agreement Prospectus. We further consent to the incorporation
by reference of this opinion into any registration statement filed
pursuant to Rule 462(b) under the Securities Act with respect to
additional Securities.
Our
opinion set forth above is limited to the matters expressly set
forth in this letter, and no opinion is implied or may be inferred
beyond the matters expressly stated. This opinion speaks only as to
law and facts in effect or existing as of the date hereof, and we
undertake no obligation or responsibility to update or supplement
this opinion to reflect any facts or circumstances that may
hereafter come to our attention or any changes in law that may
hereafter occur.
Sincerely,
Cooley
LLP
By:
/s/ Matthew T.
Browne
Matthew T.
Browne
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Cooley
LLP 4401 Eastgate Mall San Diego, CA 92121 t: (858) 550-6000 f:
(858) 550-6420 cooley.com
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