As filed with the Securities and Exchange Commission on November 8, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VERASTEM, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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27-3269467
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S Employer
Identification No.)
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117 Kendrick Street, Suite 500
Needham, MA 02494
(781) 292-4200
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Daniel Paterson
Chief Executive Officer
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, MA 02494
(781) 292-4200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Marko Zatylny
Thomas Danielski
Ropes & Gray LLP
Prudential Tower
800 Boylston St.
Boston, Massachusetts02199
(617) 951-7000
From time to time after the effectiveness of the 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 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 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 the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains:
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a base prospectus which covers the offer, issuance and sale of up to $300,000,000 of our common stock, preferred stock, warrants and debt securities; and
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an at-the-market offering prospectus supplement covering the offer, issuance and sale of up to a maximum aggregate offering price of $65,104,554 of our common stock that may be issued and sold under our sales agreement with Cantor Fitzgerald & Co., dated August 2, 2021.
The base prospectus immediately follows this explanatory note. The at-the-market offering prospectus supplement immediately follows the base prospectus. Upon termination of the sales agreement with Cantor Fitzgerald & Co., any amounts included in the at-the-market offering prospectus supplement that remain unsold will be available for sale in other offerings pursuant to the base prospectus, and if no shares are sold under the sales agreement, the full amount of this registration statement may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.
The information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the Securities and Exchange Commission declares the registration statement 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 November 8, 2023
PROSPECTUS
$300,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
We may offer and sell from time to time, in one or more series or issuances and in an amount and on terms that we will determine at the time of the respective offering, any combination, up to $300,000,000 in the aggregate, of the securities described in this prospectus.
We will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities offered hereby.
These securities may be offered and sold in the same offering or in separate offerings; to or through underwriters, dealers, and agents; or directly to purchasers. The names of any underwriters, dealers, or agents involved in the sale of our securities and their compensation will be described in the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. Before making an investment decision, please read the information under the heading “Risk Factors” beginning on page 3 of this prospectus, in any applicable prospectus supplement, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Our common stock is listed on The Nasdaq Capital Market under the symbol “VSTM.” On November 7, 2023, the last reported sale price of our common stock was $7.06 per share.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Prospectus dated , 2023
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”), under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. Under this shelf registration process, we may from time to time offer to sell any combination of the securities described in this prospectus in one or more offerings for an aggregate offering amount of up to $300,000,000. Each time we sell securities under this prospectus, we will provide a prospectus supplement and, if necessary, a free writing prospectus, that will contain specific information about the terms of that offering. The prospectus supplement and, if necessary, a free writing prospectus, may also add to, update or change information contained in this prospectus. Accordingly, to the extent inconsistent, the information in this prospectus will be deemed to be modified or superseded by any inconsistent information contained in a prospectus supplement or a free writing prospectus. You should read this prospectus and the applicable prospectus supplement and any free writing prospectus carefully, including all documents incorporated herein and therein by reference, together with the additional information described below under “Where You Can Find More Information” before making an investment in our securities.
This prospectus does not include all of the information that is in the registration statement. We omitted certain parts of the registration statement from this prospectus as permitted by the SEC. We refer you to the registration statement and its exhibits for additional information about us and the securities that may be sold under this prospectus.
We have not authorized any dealer, agent or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus and any accompanying prospectus supplement or any free writing prospectus provided in connection with an offering. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or an accompanying prospectus supplement. This prospectus and the accompanying prospectus supplement, if any, do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and the accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and any accompanying prospectus supplement, if any, is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date. Our business, financial condition, results of operations and prospects may have changed since those dates.
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 “Where You Can Find More Information.”
References in this prospectus to “Verastem,” the “Company,” “we,” “us,” “our” and similar terms refer to Verastem, Inc. and our subsidiaries on a consolidated basis, as appropriate, unless we state otherwise or the context otherwise requires. The phrase “this prospectus” refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires.
Trademarks and Tradenames
The Verastem name and logo are our trademarks. This prospectus and any applicable prospectus supplement and documents incorporated by reference herein and therein contain references to our trademarks and to trademarks belonging to other entities. Each of the other trademarks, trade names and service marks included in this prospectus belongs to its respective holder. Solely for convenience, trademarks, trade names and service marks referred to in this prospectus, including logos, artwork and other visual displays, may appear without the ® or ™ symbols, but such references are not intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks, trade names and service marks. We do not intend our use or display of other entities’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other entity.
ABOUT THE COMPANY
We are a late-stage development biopharmaceutical company, with an ongoing registration directed trial, committed to advancing new medicines for patients battling cancer. Our pipeline is focused on novel anticancer agents that inhibit critical signaling pathways in cancer that promote cancer cell survival and tumor growth, particularly rapidly accelerated fibrosarcoma (“RAF”)/mitogen-activated protein kinase (“MEK”) inhibition and focal adhesion kinase (“FAK”) inhibition.
Our most advanced product candidates, avutometinib and defactinib, are being investigated in both preclinical and clinical studies for the treatment of various solid tumors, including but not limited to, low-grade serous ovarian cancer (“LGSOC”), non-small cell lung cancer (“NSCLC”), colorectal cancer (“CRC”), pancreatic cancer and melanoma. We believe that avutometinib may be beneficial as a therapeutic as a single agent or when used together in combination with defactinib, other pathway inhibitors or other current and emerging standard of care treatments in cancers that do not adequately respond to currently available therapies.
Avutometinib is an orally available first-in-class unique small molecule RAF/MEK clamp. In contrast to other MEK inhibitors that are commercially available and in development, avutometinib is a dual RAF/MEK clamp that blocks MEK kinase activity and induces the formation of dominant negative RAF-MEK complexes preventing phosphorylation of MEK by A-Raf proto-oncogene, serine/threonine kinase (“ARAF”), B-Raf proto-oncogene serine/threonine kinase (“BRAF”) and C-raf proto-oncogene serine/threonine kinase (“CRAF”). MEK-only inhibitors (e.g. trametinib) may have limited efficacy because they induce MEK phosphorylation (“pMEK”) by relieving extracellular-signal-regulated-kinase (“ERK”)-dependent feedback inhibition of RAF. By inhibiting RAF-mediated phosphorylation of MEK, avutometinib has the advantage of not inducing pMEK. This unique mechanism of avutometinib enables it to inhibit ERK signaling more effectively and may confer enhanced therapeutic activity against mitogen-activated pathway kinase (“MAPK”) pathway-driven cancers.
Avutometinib has been shown to inhibit signaling and proliferation of tumor cell lines with a variety of MAPK pathway alterations including Kirsten rat sarcoma viral oncogene homolog (“KRAS”), neuroblastoma rat sarcoma viral oncogene homolog (“NRAS”), and BRAF mutations, among others. Avutometinib has demonstrated strong antitumor activity in combination with (i) agents targeting parallel pathways (e.g. inhibitors of FAK, CDK4/6 and mTOR), (ii) agents targeting other nodes in the MAPK pathway (e.g. anti-EGFR, SOS1, KRAS G12C, and KRAS G12D inhibitors), (iii) chemotherapy, and (iv) anti-PD-1.
Defactinib is an oral small molecule inhibitor of FAK and proline-rich tyrosine kinase (“PYK2”) that is currently being evaluated as a potential combination therapy for various solid tumors. FAK is a non-receptor tyrosine kinase encoded by the protein tyrosine kinase-2 (“PTK-2”) gene that is involved in cellular adhesion and, in cancer, metastatic capability. Defactinib targets malignant cells both directly and through modulation of the tumor microenvironment. Defactinib has received orphan drug designation in ovarian cancer in the United States, the European Union, and Australia. Preclinical research by our scientists and collaborators at world-renowned research institutions has described the effect of FAK inhibition as enhancing immune response by decreasing immuno-suppressive cells, increasing cytotoxic T cells, and reducing stromal density, which allows tumor-killing immune cells to enter the tumor. Furthermore, it has been shown that FAK activation in response to MAPK inhibitor therapy may bypass MAPK pathway blockade by driving tumor growth through activation of downstream pathways such as RhoA and YAP, supporting the clinical evaluation of avutometinib in combination with defactinib for treatment of cancers harboring MAPK alterations.
The combination of avutometinib and defactinib has been found to be clinically active in some patients with KRAS mutant and KRAS wild-type LGSOC and has received breakthrough designation from the U.S. Food & Drug Administration (the “FDA”) for the treatment of all patients with recurrent LGSOC, regardless of KRAS status after one or more prior lines of therapy, including platinum-based chemotherapy.
We are headquartered in Needham, Massachusetts, and our principal executive offices are located at 117 Kendrick Street, Suite 500, Needham, Massachusetts. Our telephone number is (781) 292-4200.
RISK FACTORS
Investing in our securities involves a high degree of risk. See “Item 1A — Risk Factors” in our most recent Annual Report on Form 10-K incorporated by reference in this prospectus and in any subsequent Quarterly Report on Form 10-Q and the “Risk Factors” section in the applicable prospectus supplement for a discussion of the factors you should carefully consider before deciding to purchase our securities. Before making a decision about investing in our securities, you should carefully consider these risks as well as other information we include or incorporate by reference into this prospectus and the applicable prospectus supplement. The risks and uncertainties we have described are not the only ones facing our Company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations, operating results and financial condition. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities. The discussion of risks includes or refers to forward-looking statements; you should read the explanation of the qualifications and limitations on such forward-looking statements discussed elsewhere in this prospectus.
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the other documents we have filed with the SEC that are incorporated herein by reference contain forward-looking statements that involve substantial risks and uncertainties. All statements, other than statements related to present facts or current conditions or historical facts contained in or incorporated by reference into this prospectus, including statements regarding our strategy, future operations, future financial position, future revenues, projected costs, prospects, plans and objectives of management, are forward-looking statements. Such statements relate to, among other things, the development and activity of our programs and product candidates, avutometinib (RAF/MEK program) and defactinib (FAK program), the structure of our planned and pending clinical trials and the timeline and indications for clinical development, regulatory submissions and commercialization of activities. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
Forward-looking statements are not guarantees of future performance and our actual results could differ materially from the results discussed in the forward-looking statements we make. Applicable risks and uncertainties include the risks and uncertainties, among other things, regarding: the success in the development and potential commercialization of our product candidates, including avutometinib in combination with other compounds, including defactinib, LUMAKRAS® and others; the uncertainties inherent in research and development, such as negative or unexpected results of clinical trials; the occurrence or timing of applications for our product candidates that may be filed with regulatory authorities in any jurisdictions; whether and when regulatory authorities in any jurisdictions may approve any such applications that may be filed for our product candidates and, if approved, whether our product candidates will be commercially successful in such jurisdictions; our ability to obtain, maintain and enforce patent and other intellectual property protection for our product candidates; the scope, timing, and outcome of any legal proceedings; decisions by regulatory authorities regarding labeling and other matters that could affect the availability or commercial potential of our product candidates; whether preclinical testing of our product candidates and preliminary or interim data from clinical trials will be predictive of the results or success of ongoing or later clinical trials; that the timing, scope and rate of reimbursement for our product candidates is uncertain; that third- party payors (including government agencies) may not reimburse; that there may be competitive developments affecting our product candidates; that data may not be available when expected; that enrollment of clinical trials may take longer than expected; that our product candidates will cause adverse safety events and/or unexpected concerns may arise from additional data or analysis, or result in unmanageable safety profiles as compared to their levels of efficacy; that our product candidates may experience manufacturing or supply interruptions or failures; that any of our third party contract research organizations, contract manufacturing organizations, clinical sites, or contractors, among others, who we rely on fail to fully perform; that we face substantial competition, which may result in others developing or commercializing products before or more successfully than we do which could result in reduced market share or market potential for our product candidates; that we will be unable to successfully initiate or complete the clinical development and eventual commercialization of our product candidates; that the development and commercialization of our product candidates will take longer or cost more than planned, including as a result of conducting additional studies; that we may not have sufficient cash to fund our contemplated operations; that we may not attract and retain high quality personnel; that we or Chugai Pharmaceutical, Co. Ltd. will fail to fully perform under the avutometinib license agreement; that our target market for our product candidates might be smaller than we are presently estimating; that Secura Bio, Inc. will fail to fully perform under the asset purchase agreement with Secura Bio, Inc., including in relation to milestone payments; that we will not see a return on investment on the payments we have and may continue to make pursuant to the collaboration and option agreement with Genfleet Therapeutics (Shanghai), Inc. (“Genfleet”) or that Genfleet will fail to fully perform under the agreement; that we may be unable to obtain adequate financing in the future through product licensing, co-promotional arrangements, public or private equity, debt financing or otherwise; that we will not pursue or submit regulatory filings for our product candidates; and that our product candidates will not receive regulatory approval, become commercially successful products, or result in new treatment options being offered to patients. Other risks and uncertainties include those identified under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 14, 2023, and any subsequent Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K (as updated by our subsequent filings under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), each incorporated by reference in this prospectus, in any subsequent filings with the SEC, and in the “Risk Factors” section in the applicable prospectus supplement. See “Where You Can Find More Information.”
As a result of these and other factors, we may not achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make. The forward-looking statements contained in this prospectus reflect our views as of the date hereof. We do not assume, and specifically disclaim, any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
USE OF PROCEEDS
Except as otherwise provided in the applicable prospectus supplement, in connection with an offering of securities pursuant to this prospectus, we currently intend to use the net proceeds we receive from the sale of any securities offered by us under this prospectus primarily for general corporate purposes, which may include working capital, capital expenditures, research and development expenditures, clinical trial expenditures, commercial expenditures, milestone payments under in-license agreements, and possible acquisitions. Additional information on the use of net proceeds we receive from the sale of securities covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.
PLAN OF DISTRIBUTION
We are registering securities, with an aggregate offering price not to exceed $300,000,000, to be sold by us under a “shelf” registration process.
If we offer any securities under this prospectus, we will amend or supplement this prospectus by means of an accompanying prospectus supplement setting forth the specific terms and conditions and other information about that offering as is required or necessary.
We may sell the securities in any of the following ways (or in any combination thereof) from time to time:
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to or through one or more underwriters;
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through dealers, who may act as agents or principal (including a block trade in which a broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction);
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through one or more agents;
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through registered direct offerings;
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as part of a collaboration with a third party;
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as part of an acquisition or merger with a third party;
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through at-the-market issuances;
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in privately negotiated transactions; or
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directly to purchasers or to a single purchaser.
The distribution of the securities by us may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement will describe the terms of the offering of the securities, including the following, as applicable:
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the terms of the securities being offered, including the public offering price of the securities and the proceeds to us;
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the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them;
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any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation;
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any options under which underwriters may purchase additional securities from us;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
Only the agents or underwriters named in each prospectus supplement are agents or underwriters in connection with the securities being offered thereby.
We may authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will be subject only to those conditions set forth in each applicable prospectus supplement, and each prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
We may indemnify agents, underwriters, dealers, their affiliates, or other third parties who participate in the distribution of securities against certain liabilities, including liabilities under the Securities Act, and agree to contribute to payments which these agents, underwriters, dealers, or other third parties may be required to make. Agents, underwriters, dealers and such other third parties may be customers of, engage in transactions with, or perform services for us in the ordinary course of business. We may also use underwriters or such other third parties with whom we have a material relationship. We will describe the nature of any such relationship in the applicable prospectus supplement.
One or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement will identify and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may engage in transactions with or perform services for us in the ordinary course of business.
Certain underwriters may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities. These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority.
Our common stock is listed on The Nasdaq Capital Market. Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the development, maintenance or liquidity of any trading market for the securities.
Certain persons participating in an offering may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with rules and regulations 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 short 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.
We are subject to the applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including Regulation M, which may limit the timing of purchases and sales of any of the securities offered in this prospectus by any other person. The anti-manipulation rules under the Exchange Act may apply to sales of securities in the market and to the actions of the Company.
To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution.
DESCRIPTION OF COMMON STOCK
The description of our common stock is incorporated by reference to Exhibit 4.5 of our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 14, 2023, including any amendments or reports filed for the purpose of updating such description.
DESCRIPTION OF PREFERRED STOCK
Under the terms of our amended and restated certificate of incorporation, our board of directors is authorized to issue up to 5,000,000 shares of our preferred stock, par value $0.0001 per share, in one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock upon the rights of the holders of common stock until the board of directors determines the specific rights of the holders of preferred stock. However, effects of the issuance of preferred stock include restricting dividends on common stock, diluting the voting power of common stock, impairing the liquidation rights of common stock, and making it more difficult for a third party to acquire us, which could have the effect of discouraging a third party from acquiring, or deterring a third party from paying a premium to acquire, a majority of our outstanding voting stock.
The description of our Series A Preferred Stock and Series B Preferred Stock is incorporated by reference to Exhibit 4.5 of our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 14, 2023, including any amendments or reports filed for the purpose of updating such description. As of September 30, 2023, we had: (i) 2,144,160 shares of Series B Preferred Stock designated, of which 1,200,000 were issued and outstanding; and (ii) 1,000,000 shares of Series A Preferred Stock designated, all of which were issued and outstanding.
If we offer any additional specific class or series of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the extent required, this description will include:
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the title and stated value;
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the number of shares offered, the liquidation preference per share and the purchase price;
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the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption, if applicable;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period;
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voting rights, if any, of the preferred stock;
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a discussion of any material U.S. federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of the Company; and
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any material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the Company.
The preferred stock offered by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase shares of our common stock, preferred stock and/or debt securities in one or more series together with other securities or separately, as described in each applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the applicable warrant agreements and the applicable prospectus supplement for the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for shares of our common stock and the number of shares of common stock to be received upon exercise of the warrants;
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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise, and a description of that class or series of our preferred stock;
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if applicable, the exercise price for our debt securities, the amount of our debt securities to be received upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if the warrants may not be continuously exercised throughout that period, the specific date or dates on which the warrants may be exercised;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants are to be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
DESCRIPTION OF DEBT SECURITIES
We may issue the debt securities offered by this prospectus and any accompanying prospectus supplement under an indenture to be entered into between us and the trustee identified in the applicable prospectus supplement. The terms of the debt securities will include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as in effect on the date of the indenture. We have filed a copy of the form of indenture as an exhibit to the registration statement in which this prospectus is included. The indenture will be subject to and governed by the terms of the Trust Indenture Act of 1939.
We may offer debt securities as described in this prospectus that, unless otherwise specified in the applicable prospectus supplement, will represent direct, unsecured obligations of the Company and will rank equally with all of our other unsecured indebtedness.
The applicable prospectus supplement will describe the terms and features of any debt securities which we may offer, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The following description and any description of debt securities in the applicable prospectus supplement may not be complete and is subject to, and are qualified in their entirety by reference to, the indenture, any supplemental indentures or forms of debt securities, in each case that we will file with the SEC in connection with a public offering of debt securities.
General
We may issue the debt securities in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will describe the particular terms of each series of debt securities in the applicable prospectus supplement relating to that series, which we will file with the SEC.
The prospectus supplement will set forth, to the extent required, the following terms of the debt securities in respect of which the prospectus supplement is delivered:
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the title of the series (which shall distinguish the debt securities of that particular series from the debt securities of any other series);
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any limit upon the aggregate principal amount of the debt securities of the series which may be authenticated and delivered under the indenture;
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the price or prices (expressed as a percentage of the principal amount thereof) at which the series of debt securities will be issued;
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the date or dates on which principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the debt securities of the series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where the principal, interest and premium, if any, on the debt securities of the series are payable, or the method of such payment, if by wire transfer, mail or other means;
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if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the debt securities of the series may be redeemed, in whole or in part, at our option;
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our obligation, if any, to redeem or purchase the debt securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which debt securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the dates, if any, on which and the price or prices at which the debt securities of the series will be repurchased by us at the option of the holders thereof, and other detailed terms and provisions of such repurchase obligations;
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if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the debt securities of the series shall be issuable;
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the forms of the debt securities of the series in bearer (if to be issued outside of the United States of America) or fully registered form (and, if in fully registered form whether the debt securities will be issuable as global securities;
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if other than the principal amount thereof, the portion of the principal amount of the debt securities of the series that shall be payable upon declaration of acceleration of the maturity thereof;
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the currency of denomination of the debt securities of the series, which may be dollars or any foreign currency, and the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of the principal of, and interest and premium, if any, on the debt securities of the series will be made;
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if payments of principal of, or interest or premium, if any, on the debt securities of the series are to be made in one or more currencies or currency units other than the that or those in which such securities are denominated are, the manner in which the exchange rate with respect to such payments will be determined;
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the manner in which the amounts of payment of principal of, or interest and premium, if any, on the debt securities of the series will be determined if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
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the provisions, if any, relating to any collateral provided for the debt securities of the series;
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any addition to or change in the covenants in the indenture which applies to the debt securities of the series;
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any addition to or change in the events of default which applies to any debt securities of the series, and any change in the right of the trustee or the requisite holders of such debt securities to declare the principal amount thereof due and payable;
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the terms and conditions, if any, for conversion of the debt securities into or exchange of the debt securities for shares of common stock or preferred stock of the Company that apply to debt securities of the series;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to debt securities of such series;
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the terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of the Company;
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if applicable, that the debt securities of the series, in whole or any specified part, shall be defeasible; and
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any other terms of the debt securities of the series (which terms shall not be inconsistent with the provisions of the indenture, except as permitted by the indenture, but which may modify or delete any provision of the indenture insofar as it applies to such series).
We may issue discount debt securities that provide for an amount less than the stated principal amount to be due and payable upon acceleration of the maturity of such debt securities in accordance with the terms of the indenture. We may also issue debt securities in bearer form, with or without coupons. If we issue discount debt securities or debt securities in bearer form, we will describe material U.S. federal income tax considerations and other material special considerations which apply to these debt securities in the applicable prospectus supplement.
We may issue debt securities denominated in or payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions, elections, and general tax considerations relating to the debt securities and the foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Exchange and/or Conversion Rights
We may issue debt securities which can be exchanged for or converted into shares of our common stock or preferred stock. If we do, we will describe the terms of exchange or conversion in the applicable prospectus supplement relating to these debt securities.
Transfer and Exchange
We may issue debt securities that will be represented by either:
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“book-entry,” which means that there will be one or more global securities registered in the name of a depositary or a nominee of a depositary; or
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“certificated securities,” which means that they will be represented by a certificate issued in definitive registered form.
We will specify in the prospectus supplement applicable to a particular offering whether the debt securities offered will be book-entry or certificated securities.
Certificated Debt Securities
If we issue certificated debt securities, a holder may transfer or exchange such debt securities at the trustee’s office or at the paying agent’s office or agency in accordance with the terms of the indenture. A holder will not be charged a service charge for any transfer or exchange of certificated debt securities but may be required to pay an amount sufficient to cover any tax or other governmental charge payable in connection with such transfer or exchange.
A holder may effect the transfer of certificated debt securities and of the right to receive the principal of, premium, and/or interest, if any, on the certificated debt securities only by surrendering the certificate representing the certificated debt securities and having us or the trustee issue a new certificate to the new holder.
Global Securities
If we decide to issue debt securities in the form of one or more global securities, then we will register the global securities in the name of the depositary for the global securities or the nominee of the depositary, and the global securities will be delivered by the trustee to the depositary for credit to the accounts of the holders of beneficial interests in the debt securities.
The prospectus supplement will describe the specific terms of the depositary arrangement for debt securities of a series that are issued in global form. None of our Company, the trustee, any payment agent or the security registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to these beneficial ownership interests.
No Protection in the Event of Change of Control
Unless we indicate otherwise in a prospectus supplement with respect to a particular series of debt securities, the debt securities will not contain any provisions that may afford holders of debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control).
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
Consolidation, Merger and Sale of Assets
Unless we indicate otherwise in a prospectus supplement, we will not in any transaction or series of transactions, merge or consolidate with or into, or sell, assign, convey or transfer, lease or otherwise dispose of all or substantially all of our properties and assets, unless:
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either (A) if the transaction or series of transactions is a merger or consolidation, the Company shall be the surviving person of such merger or consolidation, or (B) the person formed by such consolidation or into which the Company is merged or to which the properties and assets of the Company are transferred shall be a corporation or entity treated as a corporation for U.S. federal income tax purposes organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, or a corporation or comparable legal entity treated as a corporation for U.S. federal income tax purposes organized under the laws of a foreign jurisdiction and shall expressly assume by a supplemental indenture executed and delivered to the trustee, in form reasonably satisfactory to the trustee, all of the obligations of the Company (including, without limitation, the obligation to pay the principal of, and premium and interest, if any, on, the securities and the performance of the other covenants) under the indenture as supplemented, and in each case, the indenture shall remain in full force and effect; and
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immediately before and immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), no default or event of default shall have occurred and be continuing.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, the following events will be events of default under the indenture with respect to debt securities of any series:
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we default in the payment of any principal of, or premium, if any, on, the debt securities when it becomes due and payable at maturity, upon acceleration, redemption or otherwise;
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we default in the payment of any interest on any debt security of a series when the same becomes due and payable, and the default continues for a period of 30 days;
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we default in observance or performance of any other covenant in the debt securities of a series or the indenture for 60 days after written notice from the trustee or the holders of not less than 25% in the aggregate principal amount of the debt securities of such series then outstanding which notice must specify the default, demand that it be remedied and state that the notice is a “Notice of Default”;
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certain events involving bankruptcy, insolvency or reorganization of Verastem or any of our significant subsidiaries; and
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any other event of default provided for in such series of debt securities as may be specified in the applicable prospectus supplement.
Holders of a majority in principal amount of the debt securities of any series then outstanding have the right to waive any existing default or event of default with respect to such series or compliance with any provision of the indenture (with respect to such series) or the debt securities of such series with written notice to the trustee. Upon any such waiver, such default with respect to such series shall cease to exist, and any event of default with respect to such series arising therefrom shall be deemed to have been cured for every purpose of the indenture; but no such waiver shall extend to any subsequent or other default or event of default or impair any right consequent thereto. If an event of default (other than an event of default resulting from certain events of bankruptcy, insolvency or reorganization with respect to the Company) occurs, and is continuing, then the trustee, by written notice, or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series may declare that the entire principal amount, plus the premium, if any, of all the debt securities of that series then outstanding plus accrued and unpaid interest to the date of acceleration are immediately due and payable. At any time after the acceleration, but before a judgment or decree based on such acceleration is obtained by the trustee, the holders of a majority in aggregate principal amount of outstanding debt securities of such series may rescind and annul such acceleration if:
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all existing events of default (other than nonpayment of accelerated principal, premium or interest) have been cured or waived;
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all lawful interest on overdue installments of interest and overdue principal have been paid; and
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the rescission would not conflict with any judgment or decree.
In addition, if the acceleration occurs at any time when we have outstanding indebtedness which is senior to the debt securities, the payment of the principal amount of outstanding debt securities may be subordinated in right of payment to the prior payment of any amounts due under the senior indebtedness, in which case the holders of debt securities will be entitled to payment under the terms prescribed in the instruments evidencing the senior indebtedness and the indenture.
If an event of default resulting from certain events of bankruptcy, insolvency or reorganization with respect to the Company occurs, such principal, premium, if any, and interest amount with respect to all the debt securities of that series shall be due and payable immediately without any declaration or other act on the part of the trustee or the holders of the debt securities of that series.
The holders of a majority in principal amount of the outstanding debt securities of a series will have the right to waive any existing default or compliance with any provision of the indenture or the debt securities of that series and to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, subject to certain limitations specified in the indenture.
No holder of any debt security of a series will have any right to institute any proceeding with respect to the indenture or for any remedy under the indenture, unless:
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the holder gives to the trustee written notice of a continuing event of default with respect to the debt securities of that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the affected series make a written request to the trustee;
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the holder or holders offer to the trustee indemnity satisfactory to the trustee against any loss, liability or expense to be incurred in compliance with such request;
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the trustee does not comply with the request within 60 days after such request; and
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the holders of a majority in aggregate principal amount of the outstanding debt securities of the affected series do not give the trustee a direction inconsistent with such request during such 60-day period.
Modification and Waiver
From time to time, we and the trustee may, without the consent of holders of the debt securities of one or more series, amend the indenture or the debt securities of one or more series, or supplement the indenture, for certain specified purposes, including:
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to provide that the surviving entity following a change of control of Verastem permitted under the indenture will assume all of our obligations under the indenture and debt securities;
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to provide for certificated debt securities in addition to uncertificated debt securities;
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to comply with any requirements of the SEC under the Trust Indenture Act of 1939;
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to cure any mistake, ambiguity, defect or inconsistency, or make any other change that does not materially and adversely affect the rights of any holder;
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; and
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to evidence and provide for the acceptance of the appointment of a successor trustee under the indenture with respect to one or more series and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts by more than one trustee.
From time to time we and the trustee may, with the consent of holders of not less than a majority of the aggregate principal amount of an outstanding series of debt securities, amend or supplement the indenture or the debt securities series, or waive compliance in a particular instance by us with any provision
of the indenture or the debt securities. We may not, however, without the consent of each holder affected by such action, modify or supplement the indenture or the debt securities or waive compliance with any provision of the indenture or the debt securities in order to:
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reduce the amount of debt securities whose holders must consent to an amendment, supplement, or waiver to the indenture or such debt security;
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reduce the rate of or change the time for payment of interest on any of the debt securities
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reduce the principal of or change the stated maturity of the debt securities, or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
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make any debt security payable in money other than that stated in the debt security;
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change the amount or time of any payment required by the debt securities or reduce the premium payable upon any redemption of the debt securities, or change the time before which no such redemption may be made;
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waive a default or event of default in the payment of the principal of, or interest or premium, if any, on any debt securities (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in principal amount of the outstanding debt securities of such series and a waiver of the payment default that resulted from such acceleration);
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waive a redemption payment with respect to any debt securities or change any provision with respect to redemption of debt securities;
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take any other action otherwise prohibited by the indenture to be taken without the consent of each holder affected by the action; or
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make any changes to the above provisions or the acceleration provisions of the indenture, except to increase any percentage of debt securities the holders of which must consent to any matter.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
The indenture permits us, at any time, to elect to discharge our obligations with respect to one or more series of debt securities by following certain procedures described in the indenture. These procedures will allow us either:
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to defease and be discharged from any and all of our obligations with respect to any debt securities except for the following obligations (which discharge is referred to as “legal defeasance”):
(1)
to replace temporary or mutilated, destroyed, lost or stolen debt securities;
(2)
the rights, powers, trusts, duties and immunities of the trustee; or
(3)
to maintain an office or agency in respect of the debt securities and to hold monies for payment in trust; or
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to be released from our obligations with respect to the debt securities under certain covenants contained in the indenture, as well as any additional covenants which may be contained in an applicable supplemental indenture (which release is referred to as “covenant defeasance”).
In order to exercise either defeasance option, we must irrevocably deposit with the trustee or other qualifying trustee, in trust for that purpose:
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money;
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U.S. Government Obligations (as described below) or Foreign Government Obligations (as described below) which through the scheduled payment of principal and interest in accordance with their terms will provide, not later than the due date of any payment, money; or
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a combination of money and/or U.S. Government Obligations and/or Foreign Government Obligations sufficient in the written opinion of a nationally-recognized firm of independent accountants to provide money;
which in each case specified above, provides an amount sufficient to pay the principal of, premium, if any, and interest, if any, on the debt securities of the series, on the scheduled due dates or on a selected date of redemption in accordance with the terms of the indenture.
In addition, defeasance may be effected only if, among other things:
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in the case of either legal or covenant defeasance, we deliver to the trustee an opinion of counsel, as specified in the indenture;
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in the case of legal defeasance, we deliver to the trustee an opinion of counsel stating that we have received from, or there has been published by, the Internal Revenue Service a ruling to the effect that, or there has been a change in any applicable federal income tax law with the effect that or there has been a change in any applicable U.S. Federal income tax law with the effect that, and such opinion shall confirm that, the holders of the outstanding debt securities of such series or persons will not recognize income, gain or loss for U.S. federal income tax purposes solely as a result of such legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner, including as a result of prepayment, and at the same times as would have been the case if legal defeasance had not occurred;
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in the case of covenant defeasance, we deliver to the trustee an opinion of counsel to the effect that the holders of the outstanding debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if covenant defeasance had not occurred; and
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certain other conditions described in the indenture are satisfied.
If we fail to comply with our remaining obligations under the indenture and any applicable supplemental indenture after a covenant defeasance of the indenture and any applicable supplemental indenture, and the debt securities are declared due and payable because of the occurrence of any undefeased event of default, the amount of money and/or U.S. Government Obligations and/or Foreign Government Obligations on deposit with the trustee could be insufficient to pay amounts due under the debt securities of the affected series at the time of acceleration. We will, however, remain liable in respect of these payments.
The term “U.S. Government Obligations” as used in the above discussion means direct non-callable obligations of or non-callable obligations guaranteed by the United States of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged.
The term “Foreign Government Obligations” as used in the above discussion means, with respect to Securities that are denominated in a foreign currency (i) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which in either case under clauses (i) and (ii), are not callable or redeemable at the option of the issuer thereof.
Regarding the Trustee
We will identify the trustee with respect to any series of debt securities in the prospectus supplement relating to the applicable debt securities. You should note that if the trustee becomes a creditor of Verastem, the indenture and the Trust Indenture Act of 1939 limit the rights of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates. If, however, the trustee acquires any “conflicting interest” within the meaning of the Trust Indenture Act of 1939, it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee. If an event of default occurs and is continuing, the trustee, in the exercise of its rights and powers, must use the degree of care and skill of a prudent person under the same circumstances in the conduct of
his or her own affairs. Subject to that provision, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities, unless they have offered to the trustee indemnity or security against the costs, expenses and liabilities which may be incurred therein or thereby.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New York.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC, including us. The address of the SEC website is www.sec.gov.
We maintain a website at www.verastem.com. Information contained in, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus certain information we file with it, which means that we can disclose important information about us by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information in this prospectus. We incorporate by reference into this prospectus the documents listed below and any future filings, including all filings made after the date of the filing of the registration statement of which this prospectus is part and prior to the effectiveness of such registration statement, made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except for information “furnished” under Items 2.02, 7.01 or 9.01 on Form 8-K or other information “furnished” to the SEC which is not deemed filed and not incorporated in this prospectus, until the termination of the offering of securities described in the applicable prospectus supplement. We hereby incorporate by reference the following documents:
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•
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our Current Reports on Form 8-K filed with the SEC on January 25, 2023, March 27, 2023, May 16, 2023, May 25, 2023, May 31, 2023, June 21, 2023, July 12, 2023, August 4, 2023 and October 27, 2023 (except for portions of such reports which were furnished and not filed);
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the description of our common stock, which is in our Registration Statement on Form 8-A, dated January 23, 2012, as supplemented by the description of our common stock and preferred stock
contained in Exhibit 4.5 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 14, 2023.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed modified, superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus modifies, supersedes or replaces such statement.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Investor Relations
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
(781) 292-4279
email address: info@verastem.com
Copies of these filings are also available, without charge, on the SEC’s website at www.sec.gov and on our website at www.verastem.com as soon as reasonably practicable after they are filed electronically with the SEC. The information contained on our website is not a part of this prospectus.
LEGAL MATTERS
The validity of the issuance of the securities offered pursuant to this prospectus will be passed upon for us by Ropes & Gray LLP, Boston, Massachusetts. The validity of any securities will be passed upon for any underwriters or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Verastem, Inc. appearing in Verastem, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The information in this prospectus is not complete and may be changed. We may not sell 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 November 8, 2023
PROSPECTUS SUPPLEMENT
Up to $65,104,55 of Shares
Common Stock
We previously entered into a sales agreement with Cantor Fitzgerald & Co., or Cantor, relating to shares of our common stock offered by this prospectus supplement. In accordance with the terms of the sales agreement, we may offer and sell shares of our common stock from time to time through Cantor, acting as sales agent. We previously filed a shelf registration statement on Form S-3 (as amended post-effectiveness, the “Original Form S-3”) which included a base prospectus and accompanying prospectus supplement with respect to the offer and sale of up to $100,000,000 of shares of our common stock, from time to time through Cantor, acting as our agent, pursuant to the sales agreement under the Original Form S-3 (Registration Statement No. 333-258372). As of the date of this prospectus supplement, we have issued and sold $34,895,446 of our common stock pursuant to the sales agreement and the Original Form S-3 and accompanying prospectus supplements. The common stock remaining available to be sold under the Original Form S-3 and accompanying prospectus supplement as of the date of this prospectus supplement will no longer be offered and sold under the Original Form S-3 and accompanying prospectus supplement, but will instead be offered and sold under this prospectus supplement. Accordingly, we may offer and sell shares of our common stock having an aggregate offering price of up to $65,104,554.
Our common stock is listed on The Nasdaq Capital Market under the symbol “VSTM.” On November 7, 2023, the last reported sale price of our common stock was $7.06 per share.
Sales of our common stock, if any, under this prospectus supplement may be made in sales deemed to be “at-the-market” equity offerings as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act. Cantor will act as sales agent on a best efforts basis and use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Cantor and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
Cantor will be entitled to compensation at a commission rate of up to 3.0% of the gross sales price per share sold. In connection with the sale of our common stock on our behalf, Cantor will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor will be deemed to be underwriting commissions or discounts.
Investing in our common stock involves a high degree of risk. Before making an investment decision, please read the information under the heading “Risk Factors” beginning on page S-6 of this prospectus supplement and in the documents incorporated by reference into this prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is , 2023
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is this prospectus supplement, which describes the specific terms of this offering. The second part, the accompanying prospectus, gives more general information, some of which may not apply to this offering. In the event that the description of this offering varies between this prospectus supplement and the accompanying prospectus, you should rely on the information contained in this prospectus supplement. This prospectus supplement includes or incorporates by reference important information about us, our common stock, and other matters you should know before investing. You should read this prospectus supplement as well as additional information described under the sections of this prospectus supplement entitled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” before making an investment decision.
You should rely only on this prospectus supplement and the information incorporated or deemed to be incorporated by reference in this prospectus supplement or in any free writing prospectus supplement that we may authorize for use in connection with this offering. We have not, and Cantor has not, authorized anyone to provide you with information that is in addition to, or different from, that contained or incorporated by reference in this prospectus supplement. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and Cantor is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the information contained or incorporated by reference in this prospectus supplement is accurate as of any date other than as of the date of this prospectus supplement or in the case of the documents incorporated by reference, the date of such documents regardless of the time of delivery of this prospectus supplement or any sale of shares of our common stock. Our business, financial condition, liquidity, results of operations and prospects may have changed since those dates.
We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The distribution of this prospectus supplement and the offering of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus supplement must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus supplement outside the United States. This prospectus supplement does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
References in this prospectus supplement to “Verastem,” the “Company,” “we,” “us,” “our” and similar terms refer to Verastem, Inc. and our subsidiaries on a consolidated basis, as appropriate, unless we state otherwise or the context otherwise requires.
PROSPECTUS SUPPLEMENT SUMMARY
The items in the following summary are described in more detail elsewhere in this prospectus supplement and in the documents incorporated by reference herein. This summary provides an overview of selected information and does not contain all the information you should consider before investing in our common stock. Therefore, you should read the entire prospectus supplement and any free writing prospectus supplement that we have authorized for use in connection with this offering carefully, including the “Risk Factors” section and other documents or information included or incorporated by reference in this prospectus supplement before making any investment decision.
ABOUT THE COMPANY
Overview
We are a late-stage development biopharmaceutical company, with an ongoing registration directed trial, committed to advancing new medicines for patients battling cancer. Our pipeline is focused on novel anticancer agents that inhibit critical signaling pathways in cancer that promote cancer cell survival and tumor growth, particularly rapidly accelerated fibrosarcoma (“RAF”)/mitogen-activated protein kinase (“MEK”) inhibition and focal adhesion kinase (“FAK”) inhibition.
Our most advanced product candidates, avutometinib and defactinib, are being investigated in both preclinical and clinical studies for the treatment of various solid tumors, including but not limited to, low-grade serous ovarian cancer (“LGSOC”), non-small cell lung cancer (“NSCLC”), colorectal cancer (“CRC”), pancreatic cancer and melanoma. We believe that avutometinib may be beneficial as a therapeutic as a single agent or when used together in combination with defactinib, other pathway inhibitors or other current and emerging standard of care treatments in cancers that do not adequately respond to currently available therapies.
Avutometinib is an orally available first-in-class unique small molecule RAF/MEK clamp. In contrast to other MEK inhibitors that are commercially available and in development, avutometinib is a dual RAF/MEK clamp that blocks MEK kinase activity and induces the formation of dominant negative RAF-MEK complexes preventing phosphorylation of MEK by A-Raf proto-oncogene, serine/threonine kinase (“ARAF”), B-Raf proto-oncogene serine/threonine kinase (“BRAF”) and C-raf proto-oncogene serine/threonine kinase (“CRAF”). MEK-only inhibitors (e.g. trametinib) may have limited efficacy because they induce MEK phosphorylation (“pMEK”) by relieving extracellular-signal-regulated-kinase (“ERK”)-dependent feedback inhibition of RAF. By inhibiting RAF-mediated phosphorylation of MEK, avutometinib has the advantage of not inducing pMEK. This unique mechanism of avutometinib enables it to inhibit ERK signaling more effectively and may confer enhanced therapeutic activity against mitogen-activated pathway kinase (“MAPK”) pathway-driven cancers.
Avutometinib has been shown to inhibit signaling and proliferation of tumor cell lines with a variety of MAPK pathway alterations including Kirsten rat sarcoma viral oncogene homolog (“KRAS”), neuroblastoma rat sarcoma viral oncogene homolog (“NRAS”), and BRAF mutations, among others. Avutometinib has demonstrated strong antitumor activity in combination with (i) agents targeting parallel pathways (e.g. inhibitors of FAK, CDK4/6 and mTOR), (ii) agents targeting other nodes in the MAPK pathway (e.g. anti-EGFR, SOS1, KRAS G12C, and KRAS G12D inhibitors), (iii) chemotherapy, and (iv) anti-PD-1.
Defactinib is an oral small molecule inhibitor of FAK and proline-rich tyrosine kinase (“PYK2”) that is currently being evaluated as a potential combination therapy for various solid tumors. FAK is a non-receptor tyrosine kinase encoded by the protein tyrosine kinase-2 (“PTK-2”) gene that is involved in cellular adhesion and, in cancer, metastatic capability. Defactinib targets malignant cells both directly and through modulation of the tumor microenvironment. Defactinib has received orphan drug designation in ovarian cancer in the United States, the European Union, and Australia. Preclinical research by our scientists and collaborators at world-renowned research institutions has described the effect of FAK inhibition as enhancing immune response by decreasing immuno-suppressive cells, increasing cytotoxic T cells, and reducing stromal density, which allows tumor-killing immune cells to enter the tumor. Furthermore, it has been shown that FAK activation in response to MAPK inhibitor therapy may bypass MAPK pathway blockade
by driving tumor growth through activation of downstream pathways such as RhoA and YAP, supporting the clinical evaluation of avutometinib in combination with defactinib for treatment of cancers harboring MAPK alterations.
The combination of avutometinib and defactinib has been found to be clinically active in some patients with KRAS mutant and KRAS wild-type LGSOC and has received breakthrough designation from the U.S. Food & Drug Administration (the “FDA”) for the treatment of all patients with recurrent LGSOC, regardless of KRAS status after one or more prior lines of therapy, including platinum-based chemotherapy.
Corporate Information
We were incorporated under the laws of the State of Delaware in August 2010. We are headquartered in Needham, Massachusetts, and our principal offices are located at 117 Kendrick Street, Suite 500, Needham, Massachusetts. Our telephone number is (781) 292-4200. Our website address is: www.verastem.com. We have included our website address as a factual reference and do not intend it to be an active link to our website. The information that can be accessed through our website is not part of this prospectus supplement, and investors should not rely on any such information in deciding whether to purchase our common stock.
THE OFFERING
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $65,104,554.
“At-the-market” offering that may be made from time to time through our sales agent, Cantor. See “Plan of Distribution” on page S-7.
If we receive all $65,104,554 of gross proceeds from the sale of the shares of our common stock under this prospectus supplement, we anticipate that our net proceeds, after deducting estimated commissions and expenses payable by us, will be approximately $63.7 million. We intend to use the net proceeds from this offering for general corporate purposes, which may include working capital, capital expenditures, research and development expenditures, clinical trial expenditures, commercial expenditures, milestone payments under in-license agreements, and possible acquisitions. See “Use of Proceeds” on page S-6
You should read the “Risk Factors” section of this prospectus supplement and in the documents incorporated by reference in this prospectus supplement for a discussion of factors to consider before deciding to purchase shares of our common stock.
The Nasdaq Capital Market symbol
VSTM
The number of shares of common stock shown above to be outstanding after this offering is based on 25,264,763 shares outstanding as of September 30, 2023, and excludes:
•
2,120,555 shares of our common stock issuable upon the exercise of stock options outstanding under our Amended and Restated 2012 Incentive Plan, our Amended and Restated 2021 Equity Incentive Plan, and our inducement award program (our “Equity Incentive Plans”), at a weighted average exercise price of $20.69 per share;
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225,675 shares of our common stock issuable upon the vesting of restricted stock units under our Equity Incentive Plans;
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717,490 shares of our common stock reserved and available for future issuance under our Amended and Restated 2021 Equity Incentive Plan, of which 25,000 shares are issuable upon the exercise of stock options granted subsequent to September 30, 2023 through the date hereof under the Amended and Restated 2021 Equity Incentive Plan at a weighted-average exercise price of $6.89 per share;
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608,626 shares of our common stock reserved and available for future issuance under our inducement award program, of which 139,084 shares are issuable upon the exercise of stock options granted subsequent to September 30, 2023 through the date hereof under the inducement award program at a weighted-average exercise price of $7.76 per share;
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74,705 shares of our common stock reserved for future issuance under our Amended and Restated 2018 Employee Stock Purchase Plan;
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833,334 shares of our common stock issuable upon conversion of our outstanding Series A convertible preferred stock, par value $0.0001 per share (the “Series A Preferred Stock”);
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4,236,570 shares of our common stock issuable upon conversion of our outstanding Series B convertible preferred stock, par value $0.0001 per share (the “Series B Preferred Stock”); and
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4,012 shares of our common stock issuable upon conversion of our outstanding 5.00% Convertible Senior Notes due in 2048.
Unless otherwise indicated, all information in this prospectus supplement reflects or assumes the following:
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no issuance or exercise of stock options or warrants after September 30, 2023; and
•
no conversions into common stock of our convertible securities after September 30, 2023.
RISK FACTORS
You should consider carefully the risks described below and discussed under the section captioned “Risk Factors” contained in our annual report on Form 10-K for the year ended December 31, 2022 and in our subsequent quarterly reports on Form 10-Q and annual reports on Form 10-K, as updated by our subsequent filings under the Exchange Act, each of which is incorporated by reference in this prospectus supplement, together with other information in this prospectus supplement, and the information and documents incorporated by reference in this prospectus supplement, and any free writing prospectus that we have authorized for use in connection with this offering before you make a decision to invest in our common stock. If any of the following events actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected. This could cause the trading price of our common stock to decline and you may lose all or part of your investment. The risks described below are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial may also affect our business operations.
Additional Risks Relating to this Offering and Our Common Stock
We may allocate the net proceeds from this offering in ways that you and other stockholders may not approve.
We currently intend to use the net proceeds of this offering, if any, for commercial preparation and launch costs, pending successful development and a favorable regulatory outcome for our lead product candidates avutometinib and defactinib, for the continued clinical development of our lead product candidates and to fund working capital, capital expenditures and other general corporate purposes, , which may include milestone payments under in-license agreements,, and the possible acquisition or in-license of additional compounds, product candidates or technology. This expected use of the net proceeds from this offering represents our intentions based upon our current plans and business conditions. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors, including the progress of our development efforts, the status of and results from clinical trials, as well as any collaborations that we may enter into with third parties for our product candidates, and any unforeseen cash needs. Because the number and variability of factors that will determine our use of the proceeds from this offering, their ultimate use may vary substantially from their currently intended use. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering and could spend the proceeds in ways that do not necessarily improve our operating results or enhance the value of our common stock. See “Use of Proceeds.”
FORWARD-LOOKING STATEMENTS
This prospectus supplement and the other documents we have filed with the SEC that are incorporated herein by reference contain forward-looking statements that involve substantial risks and uncertainties. All statements, other than statements related to present facts or current conditions or historical facts contained in or incorporated by reference into this prospectus supplement, including statements regarding our strategy, future operations, future financial position, future revenues, projected costs, prospects, plans and objectives of management, are forward-looking statements. Such statements relate to, among other things, the development and activity of our programs and product candidates, avutometinib (RAF/MEK program) and defactinib (FAK program), the structure of our planned and pending clinical trials and the timeline and indications for clinical development, regulatory submissions and commercialization of activities. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
Forward-looking statements are not guarantees of future performance and our actual results could differ materially from the results discussed in the forward-looking statements we make. Applicable risks and uncertainties include the risks and uncertainties, among other things, regarding: the success in the development and potential commercialization of our product candidates, including avutometinib in combination with other compounds, including defactinib, LUMAKRAS® and others; the uncertainties inherent in research and development, such as negative or unexpected results of clinical trials; the occurrence or timing of applications for our product candidates that may be filed with regulatory authorities in any jurisdictions; whether and when regulatory authorities in any jurisdictions may approve any such applications that may be filed for our product candidates and, if approved, whether our product candidates will be commercially successful in such jurisdictions; our ability to obtain, maintain and enforce patent and other intellectual property protection for our product candidates; the scope, timing, and outcome of any legal proceedings; decisions by regulatory authorities regarding labeling and other matters that could affect the availability or commercial potential of our product candidates; whether preclinical testing of our product candidates and preliminary or interim data from clinical trials will be predictive of the results or success of ongoing or later clinical trials; that the timing, scope and rate of reimbursement for our product candidates is uncertain; that third- party payors (including government agencies) may not reimburse; that that there may be competitive developments affecting our product candidates; that data may not be available when expected; that enrollment of clinical trials may take longer than expected; that our product candidates will cause adverse safety events and/or unexpected concerns may arise from additional data or analysis, or result in unmanageable safety profiles as compared to their levels of efficacy; that our product candidates may experience manufacturing or supply interruptions or failures; that any of our third party contract research organizations, contract manufacturing organizations, clinical sites, or contractors, among others, who we rely on fail to fully perform; that we face substantial competition, which may result in others developing or commercializing products before or more successfully than we do which could result in reduced market share or market potential for our product candidates; that we will be unable to successfully initiate or complete the clinical development and eventual commercialization of our product candidates; that the development and commercialization of our product candidates will take longer or cost more than planned, including as a result of conducting additional studies; that we may not have sufficient cash to fund our contemplated operations; that we may not attract and retain high quality personnel; that we or Chugai Pharmaceutical, Co. Ltd. will fail to fully perform under the avutometinib license agreement; that our target market for our product candidates might be smaller than we are presently estimating; that Secura Bio, Inc. will fail to fully perform under the asset purchase agreement with Secura Bio, Inc., including in relation to milestone payments; that we will not see a return on investment on the payments we have and may continue to make pursuant to the collaboration and option agreement with Genfleet Therapeutics (Shanghai), Inc. (“Genfleet”) or that Genfleet will fail to fully perform under the agreement; that we may be unable to obtain adequate financing in the future through product licensing, co-promotional arrangements, public or private equity, debt financing or otherwise; that we will not pursue or submit regulatory filings for our product candidates; and that our product candidates will not receive regulatory approval, become commercially successful products, or result in new treatment options being offered to patients. Other risks and uncertainties include those identified under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 14, 2023, and any subsequent Quarterly Reports on Form 10-Q and
Annual Reports on Form 10-K (as updated by our subsequent filings under the Exchange Act), each incorporated by reference in this prospectus supplement and in any subsequent filings with the SEC.
As a result of these and other factors, we may not achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make. The forward-looking statements contained in this prospectus supplement reflect our views as of the date hereof. We do not assume, and specifically disclaim, any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
USE OF PROCEEDS
If we receive all $65,104,554 of gross proceeds from the sale of the shares of our common stock under this prospectus supplement, we anticipate that the net proceeds we will receive from this offering will be approximately $63.7 million, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us. The amount of the proceeds from this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under or fully utilize the sales agreement with Cantor as a source of financing.
We currently estimate that we will use the net proceeds from this offering for general corporate purposes, which may include working capital, capital expenditures, research and development expenditures, clinical trial expenditures, commercial expenditures, milestone payments under in-license agreements, and possible acquisitions.
This expected use of the net proceeds from this offering represents our intentions based upon our current plans and business conditions. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors, including the progress of our development efforts, the status of and results from clinical trials, as well as any collaborations that we may enter into with third parties for our product candidates, and any unforeseen cash needs. As a result, we cannot estimate with certainty the amount of net proceeds to be used for the purposes described above, and our management will retain broad discretion over the allocation of the net proceeds from this offering.
Pending our use of the net proceeds from this offering described above, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment grade, interest bearing instruments and U.S. government securities.
PLAN OF DISTRIBUTION
We have entered into a sales agreement with Cantor, under which we may issue and sell shares of our common stock having an aggregate gross sales price of up to $100,000,000 (of which $65,104,554 remains) from time to time through Cantor acting as sales agent. The sales agreement has been incorporated by reference as an exhibit to our registration statement on Form S-3 of which this prospectus supplement forms a part.
Upon delivery of a placement notice and subject to the terms and conditions of the sales agreement, Cantor may sell shares of our common stock by any method permitted by law deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act. We may instruct Cantor not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We or Cantor may suspend the offering of common stock upon notice and subject to other conditions.
We will pay Cantor commissions, in cash, for its services in acting as agent in the sale of our common stock. Cantor will be entitled to compensation at a commission rate of up to 3.0% of the gross sales price per share sold. 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. We also agreed to reimburse Cantor for certain specified expenses in an amount up to $50,000, which was paid upon execution of the sales agreement. We estimate that the total expenses for the offering, excluding compensation and reimbursements payable to Cantor under the terms of the sales agreement, will be approximately $0.1 million.
Settlement for sales of shares of common stock will occur on the second business day following the date on which any sales are made, or on some other date that is agreed upon by us and Cantor in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository Trust Company or by such other means as we and Cantor may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
Cantor will use its commercially reasonable efforts, consistent with its sales and trading practices, to solicit offers to purchase the shares of common stock under the terms and subject to the conditions set forth in the sales agreement. In connection with the sale of the shares of common stock on our behalf, Cantor will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to Cantor against certain civil liabilities, including liabilities under the Securities Act.
The offering of shares of our common stock pursuant to the sales agreement will terminate upon the earlier of (i) the sale of all the shares of our common stock that are subject to the sales agreement having an aggregate offering price of $100,000,000 or (ii) termination of the sales agreement as permitted therein. We and Cantor may each terminate the sales agreement at any time upon ten days’ prior notice. As of the date of this prospectus supplement, we have sold shares of our common stock with an aggregate offering price of $34,895,446 pursuant to the sales agreement, leaving sales with an aggregate offering price $65,104,554 that may be made pursuant to this prospectus supplement.
Cantor and its affiliates may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M, Cantor will not engage in any market making activities involving our common stock while the offering is ongoing under this prospectus supplement.
This prospectus supplement in electronic format may be made available on a website maintained by Cantor, and Cantor may distribute this prospectus supplement electronically.
DESCRIPTION OF COMMON STOCK
The description of our common stock is incorporated by reference to Exhibit 4.5 of our Annual Report on most recent Form 10-K, including any amendments or reports filed for the purpose of updating such description.
LEGAL MATTERS
The validity of the issuance of the securities offered hereby will be passed upon by our counsel, Ropes & Gray LLP, Boston, Massachusetts. Cantor is being represented in connection with this offering by Latham & Watkins LLP, San Diego, California.
EXPERTS
The consolidated financial statements of Verastem, Inc. appearing in Verastem, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement is part of a registration statement we filed with the SEC. This prospectus supplement does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC, including us. The address of the SEC website is www.sec.gov.
We maintain a website at www.verastem.com. Information contained in, or accessible through, our website is not a part of, and is not incorporated into, this prospectus supplement, and you should not consider it part of this prospectus supplement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with them which means that we can disclose important information about us by referring you to those documents instead of having to repeat the information in this prospectus supplement. The information incorporated by reference is considered to be part of this prospectus supplement, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference into this prospectus supplement the documents listed below and any future filings, including all filings made after the date of the filing of the registration statement of which this prospectus supplement is part and prior to the effectiveness of such registration statement, made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, except for information “furnished” under Items 2.02, 7.01 or 9.01 on Form 8-K or other information “furnished” to the SEC which is not deemed filed and not incorporated in this prospectus supplement, until the termination of the offering of securities described in this prospectus supplement. We hereby incorporate by reference the following documents:
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our Current Reports on Form 8-K filed with the SEC on January 25, 2023, March 27, 2023, May 16, 2023, May 25, 2023, May 31, 2023, June 21, 2023, July 12, 2023, August 4, 2023 and October 27, 2023 (except for portions of such reports which were furnished and not filed);
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the description of our common stock, which is in our Registration Statement on Form 8-A, dated January 23, 2012, as supplemented by the description of our common stock and preferred stock contained in Exhibit 4.5 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 14, 2023.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed modified, superseded or replaced for purposes of this prospectus to the extent that a statement contained in this prospectus modifies, supersedes or replaces such statement.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Investor Relations
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
(781) 292-4279
email address: info@verastem.com
Copies of these filings are also available, without charge, on the SEC’s website at www.sec.gov and on our website at www.verastem.com as soon as reasonably practicable after they are filed electronically with the SEC. The information contained on our website is not a part of this prospectus supplement.
Up to $65,104,554 of Shares
Common Stock
PROSPECTUS SUPPLEMENT
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred in connection with the issuance and distribution of the offered securities being registered, other than underwriting discounts and commissions.
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Securities and Exchange Commission registration fee
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$ |
44,280.00 |
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Printing and engraving expenses
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* |
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Legal fees and expenses
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* |
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Accounting fees and expenses
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* |
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Transfer Agent and Registrar fees
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* |
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Trustee’s fees and expenses
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* |
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Miscellaneous
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* |
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Total
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$ |
* |
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*
Estimated expenses are not presently known and will be reflected in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our amended and restated certificate of incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the Delaware General Corporation Law prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is party or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or such other court shall deem proper.
Our amended and restated certificate of incorporation provides that we will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
Our amended and restated certificate of incorporation also provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If we do not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
We have entered into indemnification agreements with our directors. In general, these agreements provide that we will indemnify the director to the fullest extent permitted by law for claims arising in his or her capacity as a director of our Company or in connection with his or her service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that a director makes a claim for indemnification and establish certain presumptions that are favorable to the director.
We maintain a general liability insurance policy which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
Also see “Undertakings.”
Item 16. Exhibits.
| |
Exhibit
|
|
|
Description
|
|
| |
1.1
|
|
|
Form of Underwriting Agreement*
|
|
| |
1.2
|
|
|
Sales Agreement, dated August 2, 2021, by and between the Company and Cantor Fitzgerald & Co. (incorporated by reference to Exhibit 1.2 of the Company’s Form 3 Registration Statement as filed August 2, 2021)
|
|
| |
3.1
|
|
|
Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 as filed with the SEC on March 12, 2019)
|
|
| |
3.2
|
|
|
Certificate of Amendment to the Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.2 to the Annual Report on Form 10-K filed by the Registrant on March 12, 2019)
|
|
| |
3.3
|
|
|
Certificate of Amendment to the Restated Certificate of Incorporation of Verastem, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Registrant with the SEC on May 21, 2020)
|
|
| |
3.4
|
|
|
Certificate of Amendment to Restated Certificate of Incorporation of Verastem, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K filed by the Registrant with the SEC on May 31, 2023)
|
|
| |
3.5
|
|
|
Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.4 to Amendment No. 3 to the Registration Statement on Form S-1 as filed with the SEC on January 13, 2012)
|
|
*
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is 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 of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) That, for purposes of determining any liability under the Securities Act of 1933:
(i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement as of the time it was declared effective; and
(ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) 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 of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue.
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 on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Needham, Commonwealth of Massachusetts on November 8, 2023.
VERASTEM, INC.
By:
/s/ Daniel Paterson
Daniel Paterson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniel Paterson and Daniel Calkins and each of them, either of whom may act without the joinder of the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments and supplements thereto (including post-effective amendments and registration statements filed pursuant to Rule 462(b)) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| |
SIGNATURES
|
|
|
TITLE
|
|
|
DATE
|
|
| |
/s/ Daniel Paterson
Daniel Paterson
|
|
|
President and Chief Executive Officer
and Director (Principal executive officer)
|
|
|
November 8, 2023
|
|
| |
/s/ Daniel Calkins
Daniel Calkins
|
|
|
Chief Financial Officer
(Principal financial and accounting officer)
|
|
|
November 8, 2023
|
|
| |
/s/ Brian M. Stuglik
Brian M. Stuglik
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Paul A. Bunn, M.D.
Paul A. Bunn, M.D.
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Robert Gagnon
Robert Gagnon
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ John H. Johnson
John H. Johnson
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Anil Kapur
Anil Kapur
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
SIGNATURES
|
|
|
TITLE
|
|
|
DATE
|
|
| |
/s/ Michael Kauffman, M.D., Ph.D.
Michael Kauffman, M.D., Ph.D.
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Michelle Robertson
Michelle Robertson
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Eric Rowinsky, M.D.
Eric Rowinsky, M.D.
|
|
|
Director
|
|
|
November 8, 2023
|
|
| |
/s/ Karin Tollefson
Karin Tollefson
|
|
|
Director
|
|
|
November 8, 2023
|
|
Exhibit 4.6
VERASTEM, INC.
and
U.S.
Bank TRUST COMPANY, National Association, as Trustee
INDENTURE
Dated as of [ ], [ ]
TABLE
OF CONTENTS
| |
|
|
| ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| |
|
|
| 1.1. |
DEFINITIONS |
1 |
| 1.2. |
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT |
5 |
| 1.3. |
RULES OF CONSTRUCTION |
5 |
| |
|
|
| ARTICLE 2. THE SECURITIES |
6 |
| |
|
|
| 2.1. |
ISSUABLE IN SERIES |
6 |
| 2.2. |
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES |
6 |
| 2.3. |
EXECUTION AND AUTHENTICATION |
8 |
| 2.4. |
REGISTRAR AND PAYING AGENT |
10 |
| 2.5. |
PAYING AGENT TO HOLD ASSETS IN TRUST |
11 |
| 2.6. |
SECURITYHOLDER LISTS |
11 |
| 2.7. |
TRANSFER AND EXCHANGE |
11 |
| 2.8. |
REPLACEMENT SECURITIES |
12 |
| 2.9. |
OUTSTANDING SECURITIES |
12 |
| 2.10. |
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF HOLDERS’ ACTION |
12 |
| 2.11. |
TEMPORARY SECURITIES |
13 |
| 2.12. |
CANCELLATION |
13 |
| 2.13. |
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF INTEREST |
13 |
| 2.14. |
CUSIP NUMBER |
14 |
| 2.15. |
PROVISIONS FOR GLOBAL SECURITIES |
14 |
| 2.16. |
PERSONS DEEMED OWNERS |
15 |
| |
|
|
| ARTICLE 3. REDEMPTION |
16 |
| |
|
|
| 3.1. |
NOTICES TO TRUSTEE |
16 |
| 3.2. |
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED |
16 |
| 3.3. |
NOTICE OF REDEMPTION |
17 |
| 3.4. |
EFFECT OF NOTICE OF REDEMPTION |
18 |
| 3.5. |
DEPOSIT OF REDEMPTION PRICE |
18 |
| 3.6. |
SECURITIES REDEEMED IN PART |
18 |
| |
|
|
| ARTICLE 4. COVENANTS |
18 |
| |
|
|
| 4.1. |
PAYMENT OF SECURITIES |
18 |
| 4.2. |
SEC REPORTS |
19 |
| 4.3. |
WAIVER OF STAY, EXTENSION OR USURY LAWS |
19 |
| 4.4. |
COMPLIANCE CERTIFICATE |
20 |
| 4.5. |
CORPORATE EXISTENCE |
20 |
| |
|
|
| ARTICLE 5. SUCCESSOR CORPORATION |
21 |
| |
|
|
| 5.1. |
LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS |
21 |
| 5.2. |
SUCCESSOR PERSON SUBSTITUTED |
21 |
| |
|
|
| ARTICLE 6. DEFAULTS AND REMEDIES |
21 |
| |
|
|
| 6.1. |
EVENTS OF DEFAULT |
21 |
| 6.2. |
ACCELERATION |
23 |
| 6.3. |
REMEDIES |
23 |
| 6.4. |
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT |
24 |
| 6.5. |
CONTROL BY MAJORITY |
24 |
| 6.6. |
LIMITATION ON SUITS |
24 |
| 6.7. |
RIGHTS OF HOLDERS TO RECEIVE PAYMENT |
25 |
| 6.8. |
COLLECTION SUIT BY TRUSTEE |
25 |
| 6.9. |
TRUSTEE MAY FILE PROOFS OF CLAIM |
25 |
| 6.10. |
PRIORITIES |
26 |
| 6.11. |
UNDERTAKING FOR COSTS |
26 |
| ARTICLE 7. TRUSTEE |
26 |
| |
|
|
| 7.1. |
DUTIES OF TRUSTEE |
26 |
| 7.2. |
RIGHTS OF TRUSTEE |
28 |
| 7.3. |
INDIVIDUAL RIGHTS OF TRUSTEE |
29 |
| 7.4. |
TRUSTEE’S DISCLAIMER |
29 |
| 7.5. |
NOTICE OF DEFAULT |
30 |
| 7.6. |
REPORTS BY TRUSTEE TO HOLDERS |
30 |
| 7.7. |
COMPENSATION AND INDEMNITY |
30 |
| 7.8. |
REPLACEMENT OF TRUSTEE |
31 |
| 7.9. |
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION |
32 |
| 7.10. |
ELIGIBILITY; DISQUALIFICATION |
32 |
| 7.11. |
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY |
33 |
| 7.12. |
PAYING AGENTS |
33 |
| |
|
|
| ARTICLE 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS |
33 |
| |
|
|
| 8.1. |
WITHOUT CONSENT OF HOLDERS |
33 |
| 8.2. |
WITH CONSENT OF HOLDERS |
34 |
| 8.3. |
COMPLIANCE WITH TRUST INDENTURE ACT |
35 |
| 8.4. |
REVOCATION AND EFFECT OF CONSENTS |
35 |
| 8.5. |
NOTATION ON OR EXCHANGE OF SECURITIES |
36 |
| 8.6. |
TRUSTEE TO SIGN AMENDMENTS, ETC. |
36 |
| |
|
|
| ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE |
36 |
| |
|
|
| 9.1. |
DISCHARGE OF INDENTURE |
36 |
| 9.2. |
LEGAL DEFEASANCE |
37 |
| 9.3. |
COVENANT DEFEASANCE |
37 |
| 9.4. |
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE |
37 |
| 9.5. |
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS |
39 |
| 9.6. |
REINSTATEMENT |
39 |
| 9.7. |
MONEYS HELD BY PAYING AGENT |
40 |
| 9.8. |
MONEYS HELD BY TRUSTEE |
40 |
| |
|
|
| ARTICLE 10. MISCELLANEOUS |
40 |
| |
|
|
| 10.1. |
TRUST INDENTURE ACT CONTROLS |
40 |
| 10.2. |
NOTICES |
41 |
| 10.3. |
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS |
43 |
| 10.4. |
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT |
43 |
| 10.5. |
STATEMENT REQUIRED IN CERTIFICATE AND OPINION |
43 |
| 10.6. |
RULES BY TRUSTEE AND AGENTS |
44 |
| 10.7. |
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT |
44 |
| 10.8. |
GOVERNING LAW |
44 |
| 10.9. |
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS |
44 |
| 10.10. |
NO RECOURSE AGAINST OTHERS |
44 |
| 10.11. |
SUCCESSORS |
45 |
| 10.12. |
MULTIPLE COUNTERPARTS |
45 |
| 10.13. |
TABLE OF CONTENTS, HEADINGS, ETC. |
45 |
| 10.14. |
SEVERABILITY |
45 |
| 10.15. |
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS |
45 |
| 10.16. |
JUDGMENT CURRENCY |
46 |
CROSS-REFERENCE TABLE
| TIA SECTION |
|
INDENTURE SECTION |
| 310(a)(1)(2)(5) |
|
7.10 |
| 310(a)(3)(4) |
|
Inapplicable |
| 310(b) |
|
7.8; 7.10 |
| 310(c) |
|
Inapplicable |
| 311(a)(b) |
|
7.11 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
2.6 |
| 312(b)(c) |
|
10.3 |
| 313(a)(b) |
|
7.6 |
| 313(c) |
|
7.6; 10.2 |
| 313(d) |
|
7.6 |
| 314(a) |
|
4.2; 4.4; 10.2 |
| 314(b) |
|
N/A |
| 314(c)(1)(2) |
|
10.4; 10.5 |
| 314(c)(3) |
|
Inapplicable |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
10.5 |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.1, 7.2 |
| 315(b) |
|
7.5; 10.2 |
| 315(c) |
|
7.1 |
| 315(d) |
|
7.1; 7.2 |
| 315(e) |
|
6.11 |
| 316(a)(last sentence) |
|
2.10 |
| 316(a)(1)(A) |
|
6.5 |
| 316(a)(1)(B) |
|
6.4 |
| 316(a)(2) |
|
8.2 |
| 316(b) |
|
6.7 |
| 316(c) |
|
8.4 |
| 317(a)(1) |
|
6.8 |
| 317(a)(2) |
|
6.9 |
| 317(b) |
|
2.5; 7.12 |
| 318(a) |
|
10.1 |
Note: This Cross-Reference Table shall not, for
any purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of [ ], [ ] by and between
Verastem, Inc., a Delaware corporation, as Issuer (the “Company”) and U.S. Bank Trust Company, National Association,
as Trustee (the “Trustee”).
RECITALS
OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness to
be issued in one or more series (the “Securities”), as herein provided, up to such principal amount as may from time to time
be authorized in or pursuant to one or more resolutions of the Board of Directors or by supplemental indenture.
All things necessary to make this Indenture a valid
agreement of the Company in accordance with its terms have been done, and the execution and delivery thereof have been in all respects
duly authorized by the parties hereto.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities of a Series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
“Affiliate” of any specified Person
means any other Person which, directly or indirectly through one or more intermediaries, controls, or is controlled by or is under common
control with, such specified Person. For the purposes of this definition, “control” (including, with correlative meanings,
the terms “controlling,” “controlled by” and “under common control with”), as used with respect to
any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Agent” means any Registrar, Paying
Agent, co-registrar or agent for service of notices and demands.
“Board of Directors” means the Board
of Directors of the Company or any committee duly authorized to act therefor.
“Board Resolution” means a copy of
a resolution certified pursuant to an Officers’ Certificate to have been duly adopted by the Board of Directors of the Company and
to be in full force and effect on the date of such certification which has been delivered to the Trustee.
“Capital Stock” means, with respect
to any Person, any and all shares or other equivalents (however designated) of capital stock, partnership interests or any other participation,
right or other interest in the nature of an equity interest in such Person or any option, warrant or other security convertible into any
of the foregoing.
“Company” means the party named as
such in the first paragraph of this Indenture until a successor replaces such party pursuant to ARTICLE 5 of this Indenture, and
thereafter means the successor and any other primary obligor on the Securities.
“Company Order” means a written order
signed in the name of the Company by two Officers, one of whom must be its Chief Executive Officer, its Chief Financial Officer or its
Vice President, Finance.
“Company Request” means any written
request signed in the name of the Company by its Chief Executive Officer, its President, any Vice President, its Chief Financial Officer
or its Treasurer and attested to by its Secretary or any Assistant Secretary or one of the aforementioned officers who is not the signatory.
“Corporate Trust Office” means the
office of the Trustee at the address specified in Section 10.2 or such other address as to which the Trustee may give notice to the
Company.
“Default” means any event that is,
or that with the passing of time or giving of notice or both would be, an Event of Default.
“Depository” means, with respect to
the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated
as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act, until
a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depository”
shall mean each Person who is then a Depository hereunder, and if at any time there is more than one such Person, such Persons.
“Dollars” means the currency of the
United States of America.
“Euro” means the single currency of
participating member states of the economic and monetary union as contemplated in the Treaty on European Union.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Foreign Currency” means any currency
or currency unit issued by a government other than the government of the United States of America.
“Foreign Government Obligations” means,
with respect to Securities that are denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by, or acting as an agency or instrumentality of, such government, the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i) and (ii), are not callable
or redeemable at the option of the issuer thereof.
“GAAP” means generally accepted accounting
principles consistently applied as in effect in the United States of America from time to time.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2, evidencing
all or part of a Series of Securities issued to the Depository for such Series or its nominee, and registered in the name of
such Depository or nominee, and bearing the legend set forth in Section 2.15(c) (or such other legend(s) as may be applied
to such Securities in accordance with Section 2.2(24)).
“Holder” or “Securityholder”
means the Person in whose name a Security is registered on the Registrar’s books.
“Indebtedness” means (without duplication),
with respect to any Person, any indebtedness at any time outstanding, secured or unsecured, contingent or otherwise, which is for borrowed
money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments, or representing the balance deferred and unpaid of the purchase price of any property
(excluding any balances that constitute accounts payable or trade payables, and other accrued liabilities arising in the ordinary course
of business), if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared
in accordance with GAAP.
“Indenture” means this Indenture as
amended, restated or supplemented from time to time.
“Interest Payment Date,” when used
with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Lien” means, with respect to any property
or assets of any Person, any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, security interest, lien,
charge, easement, encumbrance, preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including, without limitation, any capitalized lease obligation, conditional sales or other
title retention agreement having substantially the same economic effect as any of the foregoing).
“Maturity,” when used with respect
to any Security, means the date on which the principal of such Security, or an installment of principal, becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect payment
or otherwise.
“Officer” means the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of the Company, or any other officer
designated by the Board of Directors, as the case may be.
“Officers’ Certificate” means,
with respect to any Person, a certificate signed by the Chairman, Chief Executive Officer, President or any Senior or Executive Vice President
and the Chief Financial Officer, Vice President, Finance or any Treasurer of such Person, that shall comply with applicable provisions
of this Indenture.
“Opinion of Counsel” means a written
opinion from legal counsel, which counsel is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government
(including any agency or political subdivision thereof).
“Redemption Date,” when used with respect
to any Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture.
“Responsible Officer,” when used with
respect to the Trustee, means any officer within the Corporate Trust Office of the Trustee including any vice president, assistant vice
president, assistant secretary, assistant treasurer or any other officer of the Trustee who shall have direct responsibility for the administration
of this Indenture, or any other officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
“SEC” means the United States Securities
and Exchange Commission as constituted from time to time, or any successor performing substantially the same functions.
“Securities” means the securities that
are issued under this Indenture, as amended or supplemented from time to time pursuant to this Indenture.
“Securities Act” means the Securities
Act of 1933, as amended.
“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2.
“Significant Subsidiary” means (i) any
direct or indirect Subsidiary of the Company that would be a “significant subsidiary” as defined in ARTICLE 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof, or (ii) any group
of direct or indirect Subsidiaries of the Company that, taken together as a group, would be a “significant subsidiary” as
defined in ARTICLE 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect
on the date hereof.
“Stated Maturity,” when used with respect
to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date
on which the principal of such Security, or such installment of principal or interest, is due and payable, and when used with respect
to any other Indebtedness, means the date specified in the instrument governing such Indebtedness as the fixed date on which the principal
of such Indebtedness, or any installment of interest thereon, is due and payable.
“Subsidiary” of any specified Person
means any corporation, limited liability company, partnership, joint venture, association or other business entity, whether now existing
or hereafter organized or acquired, (i) in the case of a corporation, of which more than 50% of the total voting power of the Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is held, directly or
indirectly, by such Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint venture, association or other
business entity, with respect to which such Person or any of its Subsidiaries has the power to direct or cause the direction of the management
and policies of such entity by contract or otherwise, or if in accordance with GAAP such entity is consolidated with such Person for financial
statement purposes.
“TIA” means the Trust Indenture Act
of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in Section 8.3).
“Trustee” means the party named as
such in this Indenture until a successor replaces it pursuant to this Indenture, and thereafter means the successor, and if at any time
there is more than one such Person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee
with respect to Securities of that Series.
“U.S. Government Obligations” means
direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which obligation
or guarantee the full faith and credit of the United States of America is pledged.
| 1.2. | INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. |
Whenever this Indenture refers to a provision of
the TIA, the portion of such provision required to be incorporated herein in order for this Indenture to be qualified under the TIA is
incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture securityholder” means a
Holder or Securityholder.
“indenture to be qualified” means this
Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor on the indenture securities”
means the Company.
All other terms used in this Indenture that are
defined by the TIA, defined in the TIA by reference to another statute or defined by SEC rule have the meanings therein assigned
to them.
| 1.3. | RULES OF CONSTRUCTION. |
Unless the context otherwise requires:
(1)
a term has the meaning assigned to it herein, whether defined expressly or by reference;
(2)
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3)
“or” is not exclusive;
(4)
words in the singular include the plural, and in the plural include the singular;
(5)
words used herein implying any gender shall apply to each gender; and
(6)
the words “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.
ARTICLE 2.
THE SECURITIES
The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is $[ ]. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers’ Certificate
detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture may provide for
the method by which specified terms (such as interest rate, Stated Maturity, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any matters, PROVIDED, that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
| 2.2. | ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES. |
At or prior to the issuance of any Securities within
a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2(1) and either as to
such Securities within the Series or as to the Series generally in the case of Subsections 2.2(2) through 2.2(24)) by a
Board Resolution, a supplemental indenture or an Officers’ Certificate, in each case, pursuant to authority granted under a Board
Resolution:
(1)
the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(2)
any limit upon the aggregate principal amount of the Securities of the Series which 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 the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 8.5);
(3)
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
(4)
the date or dates on which the principal of the Securities of the Series is payable;
(5)
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any Interest Payment Date;
(6)
the place or places where the principal of, and interest and premium, if any, on, the Securities of the Series shall be payable,
or the method of such payment, if by wire transfer, mail or other means;
(7)
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities
of the Series may be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9)
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof, and other detailed terms and provisions of such repurchase obligations;
(10)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
(11)
the forms of the Securities of the Series in bearer (if to be issued outside of the United States of America) or fully registered
form (and, if in fully registered form, whether the Securities will be issuable as Global Securities);
(12)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
(13)
the currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, including, but not limited
to, the Euro, and, if such currency of denomination is a composite currency other than the Euro, the agency or organization, if any, responsible
for overseeing such composite currency;
(14)
the designation of the currency, currencies or currency units in which payment of the principal of, and interest and premium, if any,
on, the Securities of the Series will be made;
(15)
if payments of principal of, or interest or premium, if any, on, the Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect
to such payments will be determined;
(16)
the manner in which the amounts of payment of principal of, or interest and premium, if any, on, the Securities of the Series will
be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity,
commodity index, stock exchange index or financial index;
(17)
the provisions, if any, relating to any collateral provided for the Securities of the Series;
(18)
any addition to or change in the covenants set forth in ARTICLE 4 or ARTICLE 5 that applies to Securities of the Series;
(19)
any addition to or change in the Events of Default which applies to any Securities of the Series, and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(20)
the terms and conditions, if any, for conversion of the Securities into or exchange of the Securities for shares of common stock or preferred
stock of the Company that apply to Securities of the Series;
(21)
any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein;
(22)
the terms and conditions, if any, upon which the Securities shall be subordinated in right of payment to other Indebtedness of the Company;
(23)
if applicable, that the Securities of the Series, in whole or any specified part, shall be defeasible pursuant to Article 9; and
(24)
any other terms of the Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 8.1, but which may modify or delete any provision of this Indenture insofar as it applies to such Series).
(25)
All Securities of any one Series need not be issued at the same time, and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers’ Certificate referred
to above, however, the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities
of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
| 2.3. | EXECUTION AND AUTHENTICATION. |
The Securities shall be executed on behalf of the
Company by two Officers of the Company or an Officer and an Assistant Secretary of the Company. Each such signature may be either manual,
electronic or facsimile. The Company’s seal may be impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile
form.
If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee shall at any time, and from time to time, authenticate Securities for original issue in
the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the
Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall
be dated the date of its authentication.
The aggregate principal amount of Securities of
any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except as provided
in Section 2.8.
Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.1) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers’
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to
authenticate and deliver any Securities of any Series: (a) if the Trustee, being advised in writing by outside counsel, determines
that such action may not lawfully be taken; or (b) if the Trustee in good faith shall reasonably determine that such action would
expose the Trustee to personal liability, or cause it to have a conflict of interest with respect to Holders of any then outstanding Series of
Securities.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do
so. Any appointment shall be evidenced by an instrument signed by an authorized officer of the Trustee, a copy of which shall be furnished
to the Company. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
| 2.4. | REGISTRAR AND PAYING AGENT. |
The Company shall maintain in each Place of Payment
for any Series of Securities (i) an office or agency where such Securities may be presented for registration of transfer or
for exchange (“Registrar”), (ii) an office or agency where such Securities may be presented for payment (“Paying
Agent”), and PROVIDED, FURTHER, that at the option of the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the register for the Securities maintained by the Registrar), and (iii) an
office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served (“Service
Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office, or to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address
of the Trustee as set forth in Section 10.2; except for any service of process upon the Company. If the Company acts as Paying Agent,
it shall segregate the money held by it for the payment of principal of, and interest and premium, if any, on, the Securities and hold
it as a separate trust fund. The Company may change any Paying Agent, Registrar, co-registrar or any other Agent without notice to any
Securityholder.
The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes, and may from
time to time rescind such designations; PROVIDED, HOWEVER, that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for Securities of any Series for such purposes. The Company
hereby initially designates the Corporate Trust Office of the Trustee as such office of the Company. The Company shall give prompt written
notice to the Trustee of such designation or rescission, and of any change in the location of any such other office or agency.
The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee in writing of the name and address of any such Agent. If the Company fails
to maintain a Registrar or Paying Agent, or agent for service of notices and demands, or fails to give the foregoing notice, the Trustee
shall act as such. The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless
another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are
first issued.
| 2.5. | PAYING AGENT TO HOLD ASSETS IN TRUST. |
The Trustee as Paying Agent shall, and the Company
shall require each Paying Agent other than the Trustee to agree in writing that each Paying Agent shall, hold in trust for the benefit
of the Holders of any Series of Securities or the Trustee all assets held by the Paying Agent for the payment of principal of, or
interest or premium, if any, on, such Series of Securities (whether such assets have been distributed to it by the Company or any
other obligor on such Series of Securities), and the Company and the Paying Agent shall notify the Trustee in writing of any Default
by the Company (or any other obligor on such Series of Securities) in making any such payment. The Company at any time may require
a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed, and the Trustee may, at any time
during the continuance of any payment default with respect to any Series of Securities, upon written request to a Paying Agent, require
such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
| 2.6. | SECURITYHOLDER LISTS. |
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of
Securities. If the Trustee is not the Registrar, the Company shall furnish to the Trustee as of each regular record date for the payment
of interest on the Securities of a Series and before each related Interest Payment Date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders
of each Series of Securities.
| 2.7. | TRANSFER AND EXCHANGE. |
When Securities of a Series are presented
to the Registrar with a request to register the transfer thereof, the Registrar shall register the transfer as requested if the requirements
of applicable law are met, and when such Securities of a Series are presented to the Registrar with a request to exchange them for
an equal principal amount of other authorized denominations of Securities of the same Series, the Registrar shall make the exchange as
requested. To permit transfers and exchanges, upon surrender of any Security for registration of transfer at the office or agency maintained
pursuant to Section 2.4, the Company shall execute and the Trustee shall authenticate Securities at the Registrar’s request.
If Securities are issued as Global Securities,
the provisions of Section 2.15 shall apply.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Registrar or a co-registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the Registrar or a co-registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
Any exchange or transfer shall be without charge,
except that the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Section 2.11, 3.6 or
8.5. The Trustee shall not be required to register transfers of Securities of any Series, or to exchange Securities of any Series, for
a period of 15 days before the record date for selection for redemption of such Securities. The Trustee shall not be required to exchange
or register transfers of Securities of any Series called or being called for redemption in whole or in part, except the unredeemed
portion of such Security being redeemed in part.
| 2.8. | REPLACEMENT SECURITIES. |
If a mutilated Security is surrendered to the Trustee,
or if the Holder of a Security presents evidence to the satisfaction of the Company and the Trustee that the Security has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security of the same Series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding. An indemnity bond may be required by the Company
or the Trustee that is sufficient in the reasonable judgment of the Company or the Trustee, as the case may be, to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a Security is replaced. The Company may charge such Holder for
the Company’s out-of-pocket expenses in replacing a Security, including the fees and expenses of the Trustee. Every replacement
Security shall constitute an original additional obligation of the Company, whether or not the destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any
and all other Securities of that Series duly issued hereunder.
| 2.9. | OUTSTANDING SECURITIES. |
Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those delivered to it for cancellation and those described in this Section 2.9
as not outstanding.
If a Security is replaced pursuant to Section 2.8
(other than a mutilated Security surrendered for replacement), it ceases to be outstanding until the Company and the Trustee receive proof
satisfactory to each of them that the replaced Security is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.8.
If a Paying Agent holds on a Redemption Date or
the Stated Maturity money sufficient to pay the principal of, premium, if any, and accrued interest on, Securities payable on that date,
and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture (PROVIDED, that if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made), then on and after that date such Securities cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding solely
because the Company or an Affiliate holds the Security.
| 2.10. | WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF HOLDERS’ ACTION. |
In determining whether the Holders of the required
aggregate principal amount of the Securities of any Series have concurred in any direction, waiver or consent, the Securities of
any Series owned by the Company or any other obligor on such Securities, or by any Affiliate of any of them, shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities of such Series which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities
of such Series so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to the Securities of such Series and that the pledgee is not the
Company or any other obligor on the Securities of such Series, or an Affiliate of any of them.
| 2.11. | TEMPORARY SECURITIES. |
Until definitive Securities are ready for delivery,
the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form, and shall carry all rights, of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, definitive Securities in exchange for temporary Securities
without charge to the Holder.
All Securities surrendered for payment, redemption
or registration of transfer or exchange, or for credit against any sinking fund payment, shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee for cancellation. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment. The Trustee, at the written direction of the Company, or, at the written direction of the Company,
the Registrar or the Paying Agent (if the Trustee is not serving in those capacities), and no one else, shall cancel and dispose of (subject
to the record retention requirements of the Exchange Act and the Trustee) in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, payment or cancellation. If the Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such Securities unless and until the same are surrendered to the Trustee
for cancellation pursuant to this Section 2.12. No Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.12, except as expressly permitted by this Indenture.
| 2.13. | PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF INTEREST. |
Except as otherwise provided as contemplated by
Section 2.2 with respect to any Series of Securities, interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security is registered at the close of business
on the regular record date for such interest, as provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate
establishing the terms of such Series.
If the Company defaults in a payment of interest
on the Securities, it shall pay the defaulted amounts, plus any interest payable on defaulted amounts pursuant to Section 4.1, to
the Persons who are Securityholders on a subsequent special record date, which date shall be the 15th day next preceding the date fixed
by the Company for the payment of defaulted interest, or the next succeeding Business Day if such date is not a Business Day. At least
15 days before the special record date, the Company shall mail or cause to be delivered to each Securityholder, with a copy to the Trustee,
a notice that states the special record date, the payment date and the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
Except as otherwise specified as contemplated by
Section 2.2 for Securities of any Series, interest on the Securities of each Series shall be computed on the basis of a 360-day
year of twelve 30-day months.
The Company in issuing the Securities may use one
or more “CUSIP” numbers, and, if the Company does so, the Trustee shall use the CUSIP number(s) in notices of redemption
or exchange as a convenience to Holders, PROVIDED, that any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number(s) printed in the notice or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities, and that any such redemption or exchange shall not be affected by any defect in or omission
of any such numbers. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers assigned
to the Securities.
| 2.15. | PROVISIONS FOR GLOBAL SECURITIES. |
(a) A
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities, and the Depository for such Global Securities or Securities.
(b) Notwithstanding
any provisions to the contrary contained in Section 2.7 and in addition thereto, if, and only if the Depository (i) at any time
is unwilling or unable to continue as Depository for such Global Security or ceases to be a clearing agency registered under the Exchange
Act and (ii) a successor Depository is not appointed by the Company within 90 days after the date the Company is so informed in writing
or becomes aware of the same, the Company promptly will execute and deliver to the Trustee definitive Securities, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of such definitive Securities (which the Company will promptly execute
and deliver to the Trustee) and an Officers’ Certificate to the effect that such Global Security shall be so exchangeable, will
authenticate and deliver definitive Securities, without charge, registered in such names and in such authorized denominations as the Depository
shall direct in writing (pursuant to instructions from its direct and indirect participants or otherwise) in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms. Upon the exchange of a Global Security for definitive
Securities, such Global Security shall be canceled by the Trustee. Unless and until it is exchanged in whole or in part for definitive
Securities, as provided in this Section 2.15(b), a Global Security may not be transferred except as a whole by the Depository with
respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee
of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
(c) Any
Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security is a Global Security within the meaning
of the Indenture hereinafter referred to, and is registered in the name of the Depository or a nominee of the Depository. This Security
is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee
of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such a successor Depository.”
(d) The
Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e) Notwithstanding
the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of, and
interest and premium, if any, on, any Global Security shall be made to the Depository or its nominee in its capacity as the Holder thereof.
(f) Except
as provided in Section 2.15(e) above, the Company, the Trustee and any Agent shall treat a Person as the Holder of such principal
amount of outstanding Securities of any Series represented by a Global Security as shall be specified in a written statement of the
Depository (which may be in the form of a participants’ list for such Series) with respect to such Global Security, for purposes
of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture, PROVIDED,
that until the Trustee is so provided with a written statement, it may treat the Depository or any other Person in whose name a Global
Security is registered as the owner of such Global Security for the purpose of receiving payment of the principal of, and any premium
and (subject to Section 2.13) any interest on, such Global Security and for all other purposes whatsoever, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
| 2.16. | PERSONS DEEMED OWNERS. |
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee, the Registrar and any agent of the Company, the Registrar or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the purpose of receiving payment of the principal of, and any
premium and (subject to Section 2.13) any interest on, such Security and for all other purposes whatsoever, and none of the Company,
the Trustee, the Registrar or any agent of the Company, the Trustee or the Registrar shall be affected by notice to the contrary.
ARTICLE 3.
REDEMPTION
The Company may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities, or may covenant to redeem and pay the Series of Securities
or any part thereof, prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities or the related
Board Resolution, supplemental indenture or Officers’ Certificate. If a Series of Securities is redeemable and the Company
elects to redeem all or part of such Series of Securities, it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Securities to be redeemed at least 45 days (unless a shorter notice shall be satisfactory to the Trustee) before the
Redemption Date. Any such notice may be canceled at any time prior to notice of such redemption being mailed to any Holder, and shall
thereby be void and of no effect.
| 3.2. | SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. |
Unless otherwise indicated for a particular Series of
Securities by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if fewer than all of the Securities of a
Series are to be redeemed, the Trustee shall select the Securities of a Series to be redeemed pro rata, by lot or by any other
method that the Trustee considers fair and appropriate (unless the Company specifically directs the Trustee otherwise) subject, in the
case of Global Securities, to the applicable rules and procedures of the Depository and, if such Securities are listed on any securities
exchange, by a method that complies with the requirements of such exchange.
The Trustee shall make the selection from Securities
of a Series outstanding and not previously called for redemption, and shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed
at least 35 but not more than 60 days before the Redemption Date. Securities of a Series in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions of the principal of Securities of a Series that have denominations
larger than $1,000. Securities of a Series and portions of them it selects shall be in amounts of $1,000 or, with respect to Securities
of any Series issuable in other denominations pursuant to Section 2.2(10), the minimum principal denomination for each Series and
integral multiples thereof. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities
called for redemption. Notwithstanding the above, the applicable procedures of the Depository regarding the selection of Securities issued
as Global Securities shall govern.
Neither the Trustee nor any Agent will have any
responsibility for any action taken or not taken by the Depository. The Trustee and the Paying Agent will have no responsibility or obligation
to any beneficial owner of a Global Security or a depository participant or other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including
any Redemption Notice) or the payment of any amount, under or with respect to such Securities. The rights of beneficial owners in any
Global Securities will be exercised only through the Depository subject to the Depository Procedures. The Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with respect to its members, participants and any beneficial owners.
| 3.3. | NOTICE OF REDEMPTION. |
Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 30 days, and no more than 60 days, before
a Redemption Date, the Company shall mail, or cause to be mailed, a notice of redemption by first-class mail to each Holder of Securities
to be redeemed at his or her last address as the same appears on the registry books maintained by the Registrar, or, with respect to Securities
issued as Global Securities, such notice shall be delivered in accordance with the applicable procedures of the Depository. The notice
shall identify the Securities to be redeemed and shall state:
(1)
the Redemption Date;
(2)
the redemption price, and that such redemption price shall become due and payable on the Redemption Date;
(3)
if any Security of a Series is being redeemed in part, the portion of the principal amount of such Security of a Series to be
redeemed and that, after the Redemption Date and upon surrender of such Security of a Series, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(4)
the name and address of the Paying Agent;
(5)
that Securities of a Series called for redemption must be surrendered to the Paying Agent to collect the redemption price, and the
place or places where each such Security is to be surrendered for such payment;
(6)
that, unless the Company defaults in making the redemption payment, interest on the Securities of a Series called for redemption
ceases to accrue on the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the redemption
price upon surrender to the Paying Agent of the Securities redeemed;
(7)
if fewer than all of the Securities of a Series are to be redeemed, the identification of the particular Securities of a Series (or
portion thereof) to be redeemed, as well as the aggregate principal amount of Securities of a Series to be redeemed and the aggregate
principal amount of Securities of a Series to be outstanding after such partial redemption.
(8)
the CUSIP number, if any, printed on the Securities being redeemed; and
(9)
that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at the Company’s sole expense; provided, however, that the Company
has delivered to the Trustee prior to the notice date, an Officers’ Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice and the form of such notice.
| 3.4. | EFFECT OF NOTICE OF REDEMPTION. |
Once the notice of redemption described in Section 3.3
is delivered, Securities of a Series called for redemption become due and payable on the Redemption Date and at the redemption price,
plus interest, if any, accrued to the Redemption Date. Upon surrender to the Trustee or Paying Agent, such Securities of a Series shall
be paid at the redemption price, plus accrued interest, if any, to the Redemption Date; PROVIDED, that if the Redemption Date is after
a regular interest payment record date and on or prior to the next Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant record date, as specified by the Company in the notice to the Trustee pursuant
to Section 3.1.
| 3.5. | DEPOSIT OF REDEMPTION PRICE. |
On or prior to the Redemption Date (but no later
than 11:00 A.M. Eastern Time on such date), the Company shall deposit with the Paying Agent money sufficient to pay the redemption
price of and accrued interest, if any, on all Securities to be redeemed on that date other than Securities or portions thereof called
for redemption on that date which have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient
to pay the redemption price of, and accrued interest on, Securities called for redemption shall have been made available in accordance
with the preceding paragraph and the Company and the Paying Agent are not prohibited from paying such moneys to Holders, the Securities
called for redemption will cease to accrue interest and the only right of the Holders of such Securities will be to receive payment of
the redemption price of and, subject to the proviso in Section 3.4, accrued and unpaid interest on such Securities to the Redemption
Date. If any Security called for redemption shall not be so paid, interest will be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal of the Security and any interest or premium, if any, not paid on such unpaid principal, in each
case, at the rate and in the manner provided in the Securities.
| 3.6. | SECURITIES REDEEMED IN PART. |
Upon surrender of a Security of a Series that
is redeemed in part, the Company shall execute, and the Trustee shall authenticate, for a Holder a new Security of the same Series equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
| 4.1. | PAYMENT OF SECURITIES. |
The Company shall pay the principal of, and interest
and premium, if any, on, each Series of Securities on the dates and in the manner provided in such Securities and this Indenture.
An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay such
installment and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture or otherwise.
The Company shall pay interest on overdue principal,
and overdue interest, to the extent lawful, at the rate specified in the Series of Securities.
The Company will deliver to the Trustee within
15 days after the filing of the same with the SEC, copies of the quarterly and annual reports and of the information, documents and other
reports, if any, which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; PROVIDED,
HOWEVER, that each such report or document will be deemed to be so delivered to the Trustee if the Company files such report or document
with the SEC through the SEC’s EDGAR database no later than the time such report or document is required to be filed with the SEC
pursuant to the Exchange Act. Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company will file with the SEC, to the extent permitted, and provide the Trustee with, such quarterly
and annual reports and such information, documents and other reports specified in Sections 13 and 15(d) of the Exchange Act. The
Company will also comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee
will not be responsible and shall have no liability whatsoever to determine whether any financial information has been filed or posted
on the EDGAR system (or any successor electronic delivery procedure) or have any duty to monitor or determine whether the Company has
delivered the reports described under this Section 4.2 or otherwise complied with its obligation under this Section 4.2.
| 4.3. | WAIVER OF STAY, EXTENSION OR USURY LAWS. |
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension, usury or other law which would prohibit or forgive the Company from paying all or any
portion of the principal of, and/or interest and premium, if any, on, the Securities as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and the Company hereby expressly
waives (to the extent that they may lawfully do so) all benefit or advantage of any such law, and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
| 4.4. | COMPLIANCE CERTIFICATE. |
(a) The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company during which any Securities were
outstanding, an Officers’ Certificate which complies with TIA Section 314(a)(4) stating that a review of the activities
of the Company and its Subsidiaries during such fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating,
as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and that there is no default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of
the principal of, or interest or premium, if any, on, the Securities is prohibited, or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect thereto.
(b) (i) If
any Default or Event of Default has occurred and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, within ten Business Days after the Company becoming aware of such
occurrence the Company shall deliver to the Trustee an Officers’ Certificate specifying such event, notice or other action and what
action the Company is taking or proposes to take with respect thereto.
Subject to ARTICLE 5, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, in accordance with the
organizational documents (as the same may be amended from time to time) of the Company and the rights (charter and statutory), licenses
and franchises of the Company; PROVIDED, HOWEVER, that the Company shall not be required to preserve any such right, license or franchise,
or its corporate existence, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof is not adverse in any material respect to the Holders.
ARTICLE 5.
SUCCESSOR CORPORATION
| 5.1. | LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS. |
(a) The
Company will not, in any transaction or series of transactions, merge or consolidate with or into, or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and assets (as an entirety or substantially as an entirety in
one transaction or a series of related transactions), to any Person or Persons, unless at the time of and after giving effect thereto
(i) either (A) if the transaction or series of transactions is a merger or consolidation, the Company shall be the surviving
Person of such merger or consolidation, or (B) the Person formed by such consolidation or into which the Company is merged or to
which the properties and assets of the Company are transferred (any such surviving Person or transferee Person being the “Surviving
Entity”) shall be a corporation or entity treated as a corporation for U.S. federal income tax purposes organized and existing under
the laws of the United States of America, any state thereof or the District of Columbia, or a corporation or comparable legal entity treated
as a corporation for U.S. federal income tax purposes organized under the laws of a foreign jurisdiction and shall expressly assume by
a supplemental indenture executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations
of the Company (including, without limitation, the obligation to pay the principal of, and premium and interest, if any, on, the Securities
and the performance of the other covenants) under the Securities of each Series and this Indenture, and in each case, this Indenture
shall remain in full force and effect; and (ii) immediately before and immediately after giving effect to such transaction or series
of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection
with or in respect of such transaction or series of transactions), no Default or Event of Default shall have occurred and be continuing.
(b) In
connection with any consolidation, merger or transfer of assets contemplated by this Section 5.1, the Company shall deliver, or cause
to be delivered, to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger
or transfer, and the supplemental indenture in respect thereto, comply with this Section 5.1, and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied with.
| 5.2. | SUCCESSOR PERSON SUBSTITUTED. |
Upon any consolidation, merger or transfer of all
or substantially all of the assets of the Company in accordance with Section 5.1 above, the successor corporation formed by such
consolidation, or into which the Company is merged or to which such transfer is made, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named
as the Company herein, and thereafter (except with respect to any such transfer which is a lease) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE 6.
DEFAULTS AND REMEDIES
“Events of Default,” wherever used
herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental
indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(1)
there is a default in the payment of any principal of, or premium, if any, on, the Securities when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;
(2)
there is a default in the payment of any interest on any Security of a Series when the same becomes due and payable, and the Default
continues for a period of 30 days;
(3)
the Company defaults in the observance or performance of any other covenant in the Securities of a Series or in this Indenture for
60 days after written notice from the Trustee or the Holders of not less than 25% in the aggregate principal amount of the Securities
of such Series then outstanding, which notice must specify the Default, demand that it be remedied and state that the notice is a
“Notice of Default”;
(4)
the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
| (A) | commences a voluntary case, |
| (B) | consents to the entry of an order for relief against it in an involuntary case, |
| (C) | consents to the appointment of a Custodian of it or for all or substantially all of its property, |
| (D) | makes a general assignment for the benefit of its creditors, or |
| (E) | generally is not paying its debts as they become due; |
(5)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
| (A) | is for relief against the Company or any Significant Subsidiary in an involuntary case; |
| (B) | appoints a Custodian of the Company or any Significant Subsidiary, or for all or substantially all of the property of the Company
or any Significant Subsidiary; or |
| (C) | orders the liquidation of the Company or any Significant Subsidiary, and the order or decree remains unstayed and in effect for 90
consecutive days; or |
(6)
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance with Section 2.2(19).
The term “Bankruptcy Law” means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee may withhold notice of any Default
(except in the payment of the principal of, or interest or premium, if any, on, the Securities) to the Holders of the Securities of any
Series in accordance with Section 7.5. When a Default is cured, it ceases to exist.
The Trustee shall not be charged with knowledge
of any Event of Default unless written notice thereof shall have been actually received by a Responsible Officer at the Corporate Trust
Office of the Trustee from the Company, a Paying Agent, any Holder or any agent of any Holder.
If an Event of Default with respect to Securities
of any Series at the time outstanding (other than an Event of Default arising under Section 6.1(4) or (5) with respect
to the Company) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the Securities of that Series then outstanding by written notice to the Company and the Trustee, may declare
that the entire principal amount (and premium, if any, on) of all the Securities of that Series then outstanding plus accrued and
unpaid interest to the date of acceleration are immediately due and payable, in which case such amounts shall become immediately due and
payable; PROVIDED, HOWEVER, that after such acceleration but before a judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the outstanding Securities of that Series may rescind and annul
such acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of accelerated principal,
interest or premium, if any, that has become due solely because of the acceleration, have been cured or waived, (ii) to the extent
the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid and (iii) the rescission would not conflict with any judgment or decree.
No such rescission shall affect any subsequent Default or impair any right consequent thereto. In case an Event of Default specified in
Section 6.1(4) or (5) with respect to the Company occurs, such principal, premium, if any, and interest amount with respect
to all of the Securities of that Series shall be due and payable immediately without any declaration or other act on the part of
the Trustee or the Holders of the Securities of that Series.
If an Event of Default with respect to Securities
of any Series at the time outstanding occurs and is continuing, the Trustee may, but shall not be obligated to, pursue any available
remedy by proceeding at law or in equity to collect the payment of the principal of, or interest and premium, if any, on, the Securities
of that Series, or to enforce the performance of any provision of the Securities of that Series or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities of that Series or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative to the extent permitted by law.
| 6.4. | WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT. |
Subject to Sections 6.2, 6.7 and 8.2, the Holders
of a majority in principal amount of the Securities of any Series then outstanding by written notice to the Trustee have the right
to waive any existing Default or Event of Default with respect to such Series or compliance with any provision of this Indenture
(with respect to such Series) or the Securities of such Series. Upon any such waiver, such Default with respect to such Series shall
cease to exist, and any Event of Default with respect to such Series arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereto. This Section 6.4 shall be in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B) is
hereby expressly excluded from this Indenture and Section as permitted by the TIA.
Subject to Sections 6.2, 6.7 and 8.2, the Holders
of a majority in principal amount of the Securities of any Series then outstanding may 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 by this Indenture with
respect to such Series. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture, or that the
Trustee determines, in its sole discretion, may be unduly prejudicial to the rights of another Securityholder or the Trustee, or that
may involve the Trustee in personal liability; PROVIDED, that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction. This Section 6.5 shall be in lieu of TIA Section 316(a)(1)(A), and TIA Section 316(a)(1)(A) is
hereby expressly excluded from this Indenture and Section as permitted by the TIA.
Subject to Section 6.7, a Securityholder may
not institute any proceeding or pursue any remedy with respect to this Indenture or the Securities of a Series unless:
(1)
the Holder gives to the Trustee written notice of a continuing Event of Default with respect to the Securities of that Series;
(2)
the Holders of at least 25% in aggregate principal amount of the Securities of such Series then outstanding make a written request
to the Trustee to pursue the remedy;
(3)
such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be incurred
in compliance with such request;
(4)
the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
(5)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Securities of such Series then outstanding.
A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder, or to obtain a preference or priority over another Securityholder.
| 6.7. | RIGHTS OF HOLDERS TO RECEIVE PAYMENT. |
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of a Series to receive payment of the principal of, and interest and premium, if any, on, the
Security of such Series on or after the respective due dates expressed in the Security of such Series, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and unconditional, and shall not be impaired or affected without the
consent of the Holder.
| 6.8. | COLLECTION SUIT BY TRUSTEE. |
If an Event of Default in payment of principal,
interest or premium, if any, specified in Section 6.1(1) or (2) with respect to Securities of any Series at the time
outstanding occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the
Company (or any other obligor on the Securities of that Series) for the whole amount of unpaid principal and premium, if any, and accrued
interest remaining unpaid, together with interest on overdue principal and premium, if any, and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the rate then borne by the Securities of that Series, and such
further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, as set forth in Section 7.7.
| 6.9. | TRUSTEE MAY FILE PROOFS OF CLAIM. |
The Trustee may file such proofs of claim and other
papers or documents, and take other actions (including sitting on a committee of creditors), as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), any of their respective creditors or any of their respective property, and the Trustee shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after deduction
of its charges and expenses to the extent that any such charges and expenses are not paid out of the estate in any such proceedings, and
any custodian in any such judicial proceeding is hereby authorized by each Securityholder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly to the Securityholders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7, and to the extent that such payment of reasonable compensation, expenses, disbursements
and advances in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other property which the Holders may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained 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 a Series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceedings.
If the Trustee collects any money pursuant to this
ARTICLE 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts then due and unpaid
for the principal of, and interest and premium, if any, on, the Securities in respect of which, or for the benefit of which, such money
has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities;
for principal and any premium and interest, respectively; and
THIRD: to the Company or such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date
for any payment to Securityholders pursuant to this Section 6.10.
| 6.11. | UNDERTAKING FOR COSTS. |
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, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in principal amount of the Securities of
a Series then outstanding.
ARTICLE 7.
TRUSTEE
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the same circumstances in the
conduct of his or her own affairs.
(b) Except
during the continuance of an Event of Default:
(1)
The duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no covenants or obligations shall be implied in this Indenture
against the Trustee.
(2)
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon 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 which 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.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(1)
This paragraph does not limit the effect of paragraph (b) of this Section 7.1.
(2)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3)
The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Sections 6.2 and 6.5.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own funds, or otherwise incur any liability, including any
financial liability, in the performance of any of its rights or powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it. The Trustee shall
be under no obligation to exercise any of the rights or power vested in it by this Indenture at the request or direction of any of the
Holder pursuant to this Indenture, unless such Holders shall have offered, and if requested provided, to the Trustee indemnity satisfactory
to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(e) Whether
or not therein expressly so provided, paragraphs (a), (b), (c) and (d) of this Section 7.1 shall govern every provision
of this Indenture that in any way relates to the Trustee.
(f) The
Trustee and Paying Agent shall not be liable for interest on any money received by either of them, except as the Trustee and Paying Agent
may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent
required by the law.
(g) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care set forth
in paragraphs (a), (b), (c), (d) and (f) of this Section 7.1 and in Section 7.2 with respect to the Trustee.
(h) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder.
(a) Subject
to Section 7.1:
(1)
The Trustee may conclusively rely on, and shall be protected in acting or refraining from acting upon, any document y believed by it to
be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the
document.
(2)
Before the Trustee acts or refrains from acting, it may require, and may conclusively rely on, an Officers’ Certificate or an Opinion
of Counsel, or both, which shall conform to the provisions of Section 10.5. The Trustee shall be protected and shall not be liable
for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(3)
The Trustee may act through agents and attorneys, and shall not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(4)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5)
The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(6)
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 Holders pursuant to the provisions of this Indenture, unless such Holders shall have provided to the Trustee
security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby.
(7)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document.
(8)
The Trustee shall not be deemed to have knowledge of any fact or matter (including, without limitation, a Default or Event of Default)
unless such fact or matter is known to a Responsible Officer of the Trustee.
(9)
The permissive right of the Trustee to take actions permitted by this Indenture will not be construed as an obligation or duty to do so.
(10)
The rights, privileges, protection, 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 to each agent, custodian and other
person employed to act hereunder.
(11)
Unless otherwise expressly provided herein or in the Securities of a Series or the related Board Resolution, supplemental indenture
or Officers’ Certificate, the Trustee shall not have any responsibility with respect to reports, notices, certificates or other
documents filed with it hereunder, except to make them available for inspection, at reasonable times, by Securityholders, it being understood
that delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (except as set forth in Section 4.4).
(12) The Trustee may request that the Company deliver
an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any Person authorized to sign an Officers’
Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(13) In no event shall the Trustee be responsible
or liable for special, punitive, indirect 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.
| 7.3. | INDIVIDUAL RIGHTS OF TRUSTEE. |
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities, and may make loans to, accept deposits from, perform services for or otherwise deal with
the Company, or any Affiliate thereof, with the same rights it would have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11.
| 7.4. | TRUSTEE’S DISCLAIMER. |
The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the Securities (except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture and authenticate the Securities and perform its obligations hereunder), and the Trustee
shall not be accountable for the Company’s use of the proceeds from the sale of Securities or any money paid to the Company or upon
the Company’s direction pursuant to the terms of this Indenture, and the Trustee shall not be responsible for any statement or recital
herein or any statement in the Securities or any other document in connection with the sale of the Securities or pursuant to this Indenture
other than its certificates of authentication.
If a Default or an Event of Default occurs and
is continuing with respect to the Securities of any Series, and if it is known to as Responsible Officer of the Trustee, the Trustee shall
deliver to each Securityholder of the Securities of that Series notice of the Default or the Event of Default, as the case may be,
within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default
(except if such Default or Event of Default has been validly cured or waived before the giving of such notice). Except in the case of
a Default or an Event of Default in payment of the principal of, or interest or premium, if any, on, any Security of any Series, the Trustee
may withhold the notice if and so long as it determines that withholding the notice is in the interests of the Securityholders of that
Series.
| 7.6. | REPORTS BY TRUSTEE TO HOLDERS. |
If and to the extent required by the TIA, within
60 days after May 15 of each year, commencing the May 15 following the date of this Indenture, the Trustee shall deliver to
each Securityholder a brief report dated as of such May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its delivery
to Securityholders shall be filed with the SEC and any stock exchange on which the Securities of that Series are listed. The Company
shall promptly notify the Trustee in writing when the Securities of any Series are listed on any stock exchange or any delisting
thereof, and the Trustee shall comply with TIA Section 313(d).
| 7.7. | COMPENSATION AND INDEMNITY. |
The Company shall pay to the Trustee from time
to time compensation for its services as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation
shall not be limited by any provision of law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
within 45 days after receipt of request for all reasonable disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
The Company shall indemnify the Trustee (in any
of its capacities), its officers, directors, employees and agents for, and hold them harmless against, any and all losses, liabilities,
damages, claims or expense (including taxes, other than taxes based upon, measured by or determined by the income of the Trustee) incurred
by it or arising out of or in connection with the acceptance or administration of its duties under this Indenture including the costs
and expenses of enforcing this Indenture against the Company (including this Section 7.7) and defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder. The Trustee, upon receiving written notice thereof, shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.
The failure by the Trustee to so notify the Company
shall not however relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have 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 written consent, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, the Company need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by the
Trustee through its negligence or bad faith as established by a final, non-appealable order of a court of competent jurisdiction. To secure
the payment obligations of the Company in this Section 7.7, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee except such money or property held in trust to pay the principal of, interest and
premium, if any, on particular Securities of that Series.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.7, the term
“Trustee” shall include any trustee appointed pursuant to this ARTICLE 7.
The obligations of the Company under this Section 7.7
shall survive the termination or satisfaction and discharge of this Indenture or the resignation or removal of the Trustee for any reason.
| 7.8. | REPLACEMENT OF TRUSTEE. |
The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Company in writing at least 90 days in advance of such resignation.
The Holders of a majority in principal amount of
the outstanding Securities of any Series may remove the Trustee with respect to that Series by notifying the removed Trustee
in writing and may appoint a successor Trustee with respect to that Series with the consent of the Company, which consent shall not
be unreasonably withheld. The Company may remove the Trustee with respect to that Series at its election if:
(1)
the Trustee fails to comply with, or ceases to be eligible under, Section 7.10;
(2)
the Trustee is adjudged a bankrupt or an insolvent, or an order for relief is entered with respect to the Trustee, under any Bankruptcy
Law;
(3)
a Custodian or other public officer takes charge of the Trustee or its property; or
(4)
the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy
exists in the office of Trustee, with respect to any Series of Securities for any reason, the Company shall promptly appoint, by
Board Resolution, a successor Trustee.
If a successor Trustee with respect to the Securities
of one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the outstanding Securities of the applicable Series may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of
one or more Series fails to comply with Section 7.10, any Securityholder of the applicable Series may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately following such delivery, (i) the retiring Trustee with
respect to one or more Series shall, subject to its rights under Section 7.7, transfer all property held by it as Trustee with
respect to such Series to the successor Trustee, (ii) the resignation or removal of the retiring Trustee shall become effective
and (iii) the successor Trustee with respect to such Series shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee with respect to the Securities of one or more Series shall mail notice of its succession to each
Securityholder of such Series.
A retiring Trustee shall not be liable for the
acts or omissions of any successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant
to this section 7.8, the Company’s obligations under Section 7.7 shall continue for the benefit of the retiring Trustee.
| 7.9. | SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR CONVERSION. |
Any organization or entity into which the Trustee
may be merged or converted or with which it may be consolidated, or any organization or entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity shall be otherwise
qualified and eligible under this Article 7, without the execution or filing of any paper or any further act on the part of any of
the parties hereto.
| 7.10. | ELIGIBILITY; DISQUALIFICATION. |
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The Trustee (or in the case of a Trustee
that is a Person included in a bank holding company system, the related bank holding company) shall have a combined capital and surplus
of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1). In addition, if the Trustee is a Person included in a bank holding company system,
the Trustee, independently of such bank holding company, shall meet the capital requirements of TIA Section 310(a)(2). If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.10, it shall resign immediately in
the manner and with the effect specified in this ARTICLE 7.
| 7.11. | PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. |
The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
The Company shall cause each Paying Agent other
than the Trustee to execute and deliver to it and the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 7.12:
(1)
that it will hold all sums held by it as agent for the payment of the principal of, or interest or premium, if any, on, the Securities
(whether such sums have been paid to it by the Company or by any obligor on the Securities) in trust for the benefit of Holders of the
Securities or the Trustee;
(2)
that it will at any time during the continuance of any Event of Default, upon written request from the Trustee, deliver to the Trustee
all sums so held in trust by it together with a full accounting thereof; and
(3)
that it will give the Trustee written notice within three Business Days after any failure of the Company (or by any obligor on the Securities)
in the payment of any installment of the principal of, or interest or premium, if any, on, the Securities when the same shall be due and
payable.
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
| 8.1. | WITHOUT CONSENT OF HOLDERS. |
The Company, when authorized by a Board Resolution,
and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without notice to or consent of any
Securityholder:
(1)
to comply with Section 5.1;
(2)
to provide for certificated Securities in addition to uncertificated Securities;
(3)
to comply with any requirements of the SEC under the TIA;
(4)
to cure any mistake, ambiguity, defect or inconsistency, or to make any other change herein or in the Securities that does not materially
and adversely affect the rights of any Securityholder;
(5)
to provide for the issuance of, and establish the form and terms and conditions of, Securities of any Series as permitted by this
Indenture; or
(6)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series, and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee.
The Trustee is hereby authorized to join with the
Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects its own rights, duties or immunities under this Indenture.
| 8.2. | WITH CONSENT OF HOLDERS. |
(a) The
Company, when authorized by a Board Resolution, and the Trustee may amend or supplement this Indenture or the Securities of one or more
Series with the written consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Securities
of such Series affected by such amendment or supplement without notice to any Securityholder. The Holders of not less than a majority
in aggregate principal amount of the outstanding Securities of each such Series affected by such amendment or supplement may waive
compliance by the Company in a particular instance with any provision of this Indenture or the Securities of such Series without
notice to any Securityholder. Subject to Section 8.4, without the consent of each Securityholder affected, however, an amendment,
supplement or waiver may not:
(1)
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver to this Indenture or the Securities;
(2)
reduce the rate of, or change the time for payment of, interest on any Security;
(3)
reduce the principal, or change the Stated Maturity, of any Security, or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;
(4)
make any Security payable in money other than that stated in the Security;
(5)
change the amount or time of any payment required by the Securities, or reduce the premium payable upon any redemption of the Securities,
or change the time before which no such redemption may be made;
(6)
waive a Default or Event of Default in the payment of the principal of, or interest or premium, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted from such acceleration);
(7)
waive a redemption payment with respect to any Security, or change any of the provisions with respect to the redemption of any Securities;
(8)
make any changes in Section 6.6 or this Section 8.2, except to increase any percentage of Securities the Holders of which must
consent to any matter; or
(9)
take any other action otherwise prohibited by this Indenture to be taken without the consent of each Holder affected thereby.
(b) Upon
the request of the Company, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Securityholders as aforesaid and of the
documents described in Section 8.6, 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, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
(c) It
shall not be necessary for the consent of the Holders under this section to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing the amendment or supplement. Any failure of the Company
to mail any such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any supplemental indenture.
| 8.3. | COMPLIANCE WITH TRUST INDENTURE ACT. |
Every amendment to, or supplement of, this Indenture
or the Securities shall comply with the TIA as then in effect.
| 8.4. | REVOCATION AND EFFECT OF CONSENTS. |
Until an amendment, supplement, waiver or other
action becomes effective, a consent to it by a Holder of a Security is a continuing consent conclusive and binding upon such Holder and
every subsequent Holder of the same Security or portion thereof, and of any Security issued upon the transfer thereof or in exchange therefor
or in place thereof, even if notation of the consent is not made on any such Security. Any such Holder or subsequent Holder, however,
may revoke the consent as to his Security or portion of a Security, if the Trustee receives the notice of revocation before the date the
amendment, supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which record
date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled
to consent to such amendment, supplement or waiver, or to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date.
After an amendment, supplement, waiver or other
action becomes effective, it shall bind every Securityholder, unless it makes a change described in any of clauses (1) through (9) of
Section 8.2. In that case, the amendment, supplement, waiver or other action shall bind each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s
Security; PROVIDED, that any such waiver shall not impair or affect the right of any Holder to receive payment of the principal of, and
interest and premium, if any, on, a Security, on or after the respective due dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates without the consent of such Holder.
| 8.5. | NOTATION ON OR EXCHANGE OF SECURITIES. |
If an amendment, supplement or waiver changes the
terms of a Security of any Series, the Trustee may request the Holder of such Security to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on such Security about the changed terms and return it to the Holder. Alternatively, the Company,
in exchange for such Security, may issue, and the Trustee shall authenticate, a new security that reflects the changed terms. Failure
to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver.
| 8.6. | TRUSTEE TO SIGN AMENDMENTS, ETC. |
The Trustee shall sign any amendment, supplement
or waiver authorized pursuant to this ARTICLE 8 if the amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment,
supplement or waiver the Trustee shall be entitled to receive and, subject to Section 7.1, shall be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplement until the Board of Directors of the Company approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
| 9.1. | DISCHARGE OF INDENTURE. |
The Company may terminate its obligations under
the Securities of any Series and this Indenture with respect to such Series, except the obligations referred to in the last paragraph
of this Section 9.1, if there shall have been canceled by the Trustee, or delivered to the Trustee for cancellation, all Securities
of such Series theretofore authenticated and delivered (other than any Securities of such Series that are asserted to have been
destroyed, lost or stolen and that shall have been replaced as provided in Section 2.8) and the Company has paid all sums payable
by it hereunder or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall
acknowledge in a writing prepared by or on behalf of the Company the discharge of the Company’s obligations under the Securities
of such Series and this Indenture, except for those surviving obligations specified below.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company in Sections 7.7, 9.5 and 9.6 shall survive.
The Company may at its option, by Board Resolution,
be discharged from its obligations with respect to the Securities of any Series on the date upon which the conditions set forth in
Section 9.4 below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Securities of such Series and
to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall, subject to Section 9.6, execute proper instruments acknowledging the same, as are
delivered to it by the Company), except for the following, which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of outstanding Securities of such Series to receive solely from the trust funds described in Section 9.4 and
as more fully set forth in such section, payments in respect of the principal of, and interest and premium, if any, on, the Securities
of such Series when such payments are due, (B) the Company’s obligations with respect to the Securities of such Series under
Sections 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder (including
claims of, or payments to, the Trustee under or pursuant to Section 7.7) and (D) this ARTICLE 9. Subject to compliance
with this ARTICLE 9, the Company may exercise its option under this Section 9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with respect to the Securities of such Series.
At the option of the Company, pursuant to a Board
Resolution, the Company shall be released from its obligations with respect to the outstanding Securities of any Series under Sections
4.2 through 4.5, inclusive, and Section 5.1, with respect to the outstanding Securities of such Series, on and after the date the
conditions set forth in Section 9.4 are satisfied (hereinafter, “Covenant Defeasance”). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such specified section or portion thereof, whether directly or indirectly by reason of any reference elsewhere herein
to any such specified Section or portion thereof or by reason of any reference in any such specified section or portion thereof to
any other provision herein or in any other document, but the remainder of this Indenture and the Securities of any Series shall be
unaffected thereby.
| 9.4. | CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE. |
The following shall be the conditions to application
of Section 9.2 or Section 9.3 to the outstanding Securities of a Series:
(1)
the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this ARTICLE 9 applicable to it) as funds in trust for the
purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of
the Securities, (A) money in an amount, or (B) U.S. Government Obligations or Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date
of any payment, money in an amount, or (C) 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 and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, and accrued interest and premium, if any, on, the
outstanding Securities of such Series at the Stated Maturity of such principal, interest or premium, if any, or on dates for payment
and redemption of such principal, interest and premium, if any, selected in accordance with the terms of this Indenture and of the Securities
of such Series;
(2)
no Event of Default or Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar or simultaneous
deposit relating to other Indebtedness and, in each case, the granting of liens and the consummation of other transactions in connection
therewith) with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
(3)
such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Company;
(4)
such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute default under, any other agreement
or instrument to which the Company is a party or by which it is bound;
(5)
the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance,
neither the trust nor the Trustee will be required to register as an investment company under the Investment Company Act of 1940, as amended;
(6)
in the case of an election under Section 9.2, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that or (ii) there
has been a change in any applicable Federal income tax law with the effect that, and such opinion shall confirm that, the Holders of the
outstanding Securities of such Series or Persons in their positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have been the case if such Legal Defeasance had not occurred;
(7)
in the case of an election under Section 9.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Securities of such Series will not recognize income, gain or loss for Federal income tax purposes
as a result of such Covenant Defeasance, and will be subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not occurred;
(8)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for in this ARTICLE 9 relating to either the Legal Defeasance under Section 9.2 or the Covenant Defeasance
under Section 9.3 (as the case may be) have been complied with;
(9)
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not
made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and
(10)
the Company shall have paid, or duly provided for payment under terms mutually satisfactory to the Company and the Trustee, all amounts
then due to the Trustee pursuant to Section 7.7.
| 9.5. | DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. |
All money, U.S. Government Obligations and Foreign
Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.4 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture,
to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Securities, of all sums
due and to become due thereon in respect of principal, accrued interest and premium, if any, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations and Foreign Government Obligations
deposited pursuant to Section 9.4 or the principal, interest and premium, if any, received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities.
Anything in this ARTICLE 9 to the contrary
notwithstanding, but subject to payment of any of its outstanding fees and expenses, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money, U.S. Government Obligations or Foreign Government Obligations held by the Trustee as provided
in Section 9.4 which, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
If the Trustee or Paying Agent is unable to apply
any money, U.S. Government Obligations or Foreign Government Obligations in accordance with Section 9.1, 9.2, 9.3 or 9.4 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this ARTICLE 9 until such time as the Trustee or Paying Agent is permitted to apply
all such money, U.S. Government Obligations or Foreign Government Obligations, as the case may be, in accordance with Section 9.1,
9.2, 9.3 or 9.4; PROVIDED, HOWEVER, that if the Company has made any payment of principal of, or accrued interest or premium, if any,
on, any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money, U.S. Government Obligations or Foreign Government Obligations held by the Trustee or
Paying Agent.
| 9.7. | MONEYS HELD BY PAYING AGENT. |
In connection with the satisfaction and discharge
of this Indenture, all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company,
be paid to the Trustee, or, if sufficient moneys have been deposited pursuant to Section 9.1, to the Company, and thereupon such
Paying Agent shall be released from all further liability with respect to such moneys.
| 9.8. | MONEYS HELD BY TRUSTEE. |
Any moneys deposited with the Trustee or any Paying
Agent or then held by the Company in trust for the payment of the principal of, or interest or premium, if any, on, any Security that
are not applied but remain unclaimed by the Holder of such Security for two years after the date upon which the principal of, or interest
or premium, if any, on, such Security shall have respectively become due and payable shall be repaid to the Company upon Company Request,
or if such moneys are then held by the Company in trust, such moneys shall be released from such trust; and the Holder of such Security
entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Company for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or any such Paying Agent, before being required to make any such repayment, may, at the expense of the Company, either mail
to each Securityholder affected, at the address shown in the register of the Securities maintained by the Registrar, or cause to be published
once a week for two successive weeks, in a newspaper published in the English language, customarily published each Business Day and of
general circulation in the City of New York, New York, a notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such moneys then remaining
will be repaid to the Company. After payment to the Company or the release of any money held in trust by the Company, Securityholders
entitled to the money must look only to the Company for payment as general creditors, unless applicable abandoned property law designates
another Person.
ARTICLE 10.
MISCELLANEOUS
| 10.1. | TRUST INDENTURE ACT CONTROLS. |
If any provision of this Indenture limits, qualifies
or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control.
If any provision of this Indenture modifies or excludes any provision of the TIA which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Any notice or communication shall be given in writing
or delivered in Person, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company:
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, Massachusetts 02494
Telephone: (781) 469-1694
Attention:
Daniel Calkins
Copy to:
Ropes & Gray LLP
800 Boylston Street
Boston, Massachusetts 02199
Telephone: (617) 951-7000
Attention: Marc Rubenstein; Tara Fisher
If to the Trustee:
U.S. Bank Trust Company, National
Association
1 Federal Street, 10th
Floor
Boston, MA 02110
Telephone: (617) 603-6553
Attention: A. Nadeau (Verastem)
The Company or the Trustee by written notice to
the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication to the
Company or the Trustee shall be deemed to have been given or made as of the date so delivered if personally delivered and three Business
Days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder
shall be mailed to such Securityholder by first-class mail, postage prepaid, at such Securityholder’s address shown on the register
kept by the Registrar.
Failure to mail, or any defect in, a notice or
communication to a Securityholder shall not affect its sufficiency with respect to other Securityholders. If a notice or communication
to a Securityholder is mailed in the manner provided above, it shall be deemed duly given, three Business Days after such mailing, whether
or not the addressee receives it.
If the Company delivers a notice or communication
to Securityholders, it shall deliver a copy to the Trustee and each Agent at the same time.
In case by reason of the suspension of regular
mail service, or by reason of any other cause, it shall be impossible to mail any notice as required by this Indenture, then such method
of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice.
In the case of Global Securities, notices or communications
to be given to Securityholders shall be given to the Depository, in accordance with its applicable policies as in effect from time to
time.
In addition to the manner provided for in the foregoing
provisions, notices or communications to Securityholders shall be given by the Company by release made to Reuters Economic Services and
Bloomberg Business News.
The Trustee shall have the right to accept and
act upon instructions, including funds transfer instructions (“Instructions”) given by the Company pursuant to this Indenture
and delivered using unsecured e-mail, facsimile transmission or other similar unsecured electronic methods (including pdf files) (“Electronic
Means”); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority
to provide such Instructions (each, an “Authorized Officer”) and containing specimen signatures of such Authorized Officers,
which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. Unless otherwise
provided in this Indenture or in any Security, the words “execute,” “execution,” “signed” and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any Security or any of
the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Adobe Sign or any other
digital signature provider identified by any other party hereto and acceptable to Trustee) and the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based
recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws
based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything herein to the contrary, the Trustee is not under
any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant
to procedures approved by the Trustee. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in
its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.
The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the
Trustee shall conclusively presume that Instructions that purport to have been sent by an Authorized Officer listed on the incumbency
certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only
Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible
to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt
by the Company. 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 Company agrees: (a) to assume all risks arising out of the use of electronic signatures and Electronic Means to
submit notices or Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized notice or Instructions,
and the risk of interception and misuse by third parties; and (b) to notify the Trustee in writing immediately upon learning of any
compromise or unauthorized use of the security procedures. Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if it is in writing and actually received by the Trustee, addressed
as provided above or sent electronically in PDF format.
| 10.3. | COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. |
Securityholders of any Series may communicate
pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their
rights under this Indenture or the Securities of that Series or any other Series. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
| 10.4. | CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. |
Upon any request or application by the Company
to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1)
an Officers’ Certificate (which shall include the statements set forth in Section 10.5 below) stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with;
and
(2)
an Opinion of Counsel (which shall include the statements set forth in Section 10.5 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
| 10.5. | STATEMENT REQUIRED IN CERTIFICATE AND OPINION. |
Each certificate and opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than pursuant to Section 4.4) shall include:
(1)
a statement that the Person making such certificate or opinion has read such covenant or condition;
(2)
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;
(3)
a statement that, in the opinion of such Person, it or he has made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4)
a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.
| 10.6. | RULES BY TRUSTEE AND AGENTS. |
The Trustee may make reasonable rules for
action by or at meetings of Securityholders. The Registrar and Paying Agent may make reasonable rules for their functions.
| 10.7. | BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT. |
A “Business Day” is a day that is not
a Legal Holiday. A “Legal Holiday” is a Saturday, a Sunday, a federally-recognized holiday or a day on which banking institutions
are not authorized or required by law, regulation or executive order to be open in the State of New York or Place of Payment.
If a payment date is a Legal Holiday at a Place
of Payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. “Place of Payment” means the place or places where the principal of, and interest and premium, if
any, on, the Securities of a Series are payable as specified as contemplated by Section2.2. If the regular record date is a Legal
Holiday, the record date shall not be affected.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
| 10.9. | NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. |
This Indenture may not be used to interpret another
indenture, loan, security or debt agreement of the Company or any Subsidiary thereof. No such indenture, loan, security or debt agreement
may be used to interpret this Indenture.
| 10.10. | NO RECOURSE AGAINST OTHERS. |
A director, officer, employee, stockholder or incorporator,
as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture. Each Securityholder
by accepting a Security waives and releases all such liability. Such waiver and release are part of the consideration for the issuance
of the Securities.
All covenants and agreements of the Company in
this Indenture and the Securities shall bind the Company’s successors and assigns, whether so expressed or not. All agreements of
the Trustee, any additional trustee and any Paying Agents in this Indenture shall bind their respective successors and assigns.
| 10.12. | MULTIPLE COUNTERPARTS. |
The parties may sign multiple counterparts of this
Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement. Delivery
of an executed counterpart by facsimile or PDF shall be effective as delivery of a manually executed counterpart thereof.
| 10.13. | TABLE OF CONTENTS, HEADINGS, ETC. |
The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Each provision of this Indenture shall be considered
separable, and if for any reason any provision which is not essential to the effectuation of the basic purpose of this Indenture or the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any party hereto.
| 10.15. | SECURITIES IN A FOREIGN CURRENCY OR IN EUROS. |
Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.2 with respect to a particular
Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding
and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including Euros), then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose
of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time.
For purposes of this Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City for
cable transfers of that currency as published by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the case of Euros, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto) as published
in the Official Journal of the European Union (such publication or any successor publication, the “Journal”). If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of Euros, the rate of exchange as published
in the Journal, as of the most recent available date, or quotations or, in the case of Euros, rates of exchange from one or more major
banks in New York City or in the country of issue of the currency in question or, in the case of Euros, in Luxembourg or such other quotations
or, in the case of Euros, rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in
currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in the Trustee’s
sole discretion, and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.
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,
epidemic, pandemic, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; provided that the Trustee shall use reasonable efforts consistent with accepted practices
in the banking industry to resume performance as soon as practicable under the circumstances.
| 10.17. | WAIVER OF JURY TRIAL. |
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY PPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions, 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 reasonably request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
The Company agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of, or interest or premium, if any, or other amount on, the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate
of exchange used shall be the rate at which, in accordance with normal banking procedures, the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not
a Business Day, in which instance, the rate of exchange used shall be the rate at which, in accordance with normal banking procedures,
the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day preceding the
day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)) in any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to
be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and, if applicable, their respective corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
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VERASTEM, INC. |
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By: |
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Name: |
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Title: |
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U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION |
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By: |
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Name: |
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Title: |
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Exhibit 5.1
 |
ROPES & GRAY LLP |
| PRUDENTIAL TOWER |
| 800 BOYLSTON STREET |
| BOSTON, MA 02199-3600 |
| WWW.ROPESGRAY.COM |
November 8, 2023
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, MA 02494
Re: Registration of Securities by Verastem, Inc.
Ladies and Gentlemen:
We have acted as counsel to Verastem, Inc.,
a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the “Registration
Statement”) filed on the date hereof by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities
Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act of:
(i) shares of the Company’s common stock,
$0.0001 par value per share (the “Common Stock”);
(ii) one or more series of debt securities
of the Company (the “Debt Securities”), which Debt Securities may include senior debt securities or subordinated debt
securities issued under an indenture, including any supplemental indenture related thereto, and may be convertible into or exchangeable
for shares of the Common Stock or Preferred Stock (as defined below);
(iii) warrants representing the right to receive
or the obligation to sell, upon exercise, a number of shares of Common Stock, shares of Preferred Stock and/or Debt Securities (the “Warrants”);
and
(iv) shares of preferred stock of the Company,
$0.0001 par value per share (the “Preferred Stock”).
The Common Stock, the Debt Securities, the Warrants
and the Preferred Stock are referred to herein collectively as the “Securities.”
In connection with this opinion letter, we have
examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed
appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent
verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinions expressed below are limited to the
laws of the State of New York and the Delaware General Corporation Law.
Based upon and subject to the foregoing and the
assumptions, qualifications and limitations set forth below, we are of the opinion that:
1. When (i) the issuance and sale of any shares
of Common Stock have been duly authorized by all necessary corporate action of the Company and (ii) such shares have been issued
and delivered against payment of the purchase price therefor (in an amount in excess of the par value thereof) in accordance with the
applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement, such shares of Common Stock will
be validly issued, fully paid and nonassessable. The Common Stock covered in the opinion in this paragraph includes any shares of Common
Stock that may be issued upon exercise, conversion or exchange pursuant to the terms of any other Securities.
2. When (i) the terms of any Debt Securities
and their issuance and sale have been duly authorized by all necessary corporate action of the Company and (ii) such Debt Securities
have been duly executed, authenticated and delivered against payment of the purchase price therefor in accordance with the applicable
definitive purchase, underwriting or similar agreement, as contemplated by the Registration Statement, and in the manner provided for
in the applicable indenture, such Debt Securities will constitute valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms. The Debt Securities covered in the opinion in this paragraph include any Debt Securities
that may be issued upon exercise, conversion or exchange pursuant to the terms of any other Securities.
3. When (i) the terms of any Warrants and
their issuance and sale have been duly authorized by all necessary corporate action of the Company and (ii) such Warrants have been
duly executed, countersigned and delivered in accordance with the applicable warrant agreement and against payment of the purchase price
therefor in accordance with the applicable purchase, underwriting or other agreement, and as contemplated by the Registration Statement,
such Warrants will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms.
4. When (i) the terms of any Preferred Stock
of a particular series and their issuance and sale have been duly authorized by all necessary corporate action of the Company, (ii) a
certificate of designations with respect to such series of Preferred Stock has been duly adopted by the Company and filed with the Secretary
of State of the State of Delaware, and (iii) such shares of Preferred Stock have been issued and delivered against payment of the
purchase price therefor (in an amount in excess of the par value thereof) in accordance with the applicable purchase, underwriting or
other agreement, and as contemplated by the Registration Statement, such shares of Preferred Stock will be validly issued, fully paid,
and nonassessable. The Preferred Stock covered in the opinion in this paragraph includes any shares of Preferred Stock that may be issued
upon exercise, conversion or exchange pursuant to the terms of any other Securities.
In rendering the opinions set forth above, we
have assumed that (i) the Registration Statement will have become effective under the Securities Act, a prospectus supplement
will have been prepared and filed with the Commission describing the Securities offered thereby and such Securities will have been
issued and sold in accordance with the terms of such prospectus supplement; (ii) a definitive purchase, underwriting, or
similar agreement, and any applicable indenture (including any supplemental indenture) or warrant agreement, pursuant to which such
Securities may be issued, will have been duly authorized, executed and delivered by the Company and the other parties thereto, and
the specific terms of such Securities will have been duly established in conformity with the applicable agreement and the
certificate of incorporation and bylaws of the Company (if applicable); (iii) at the time of the issuance of any Securities,
the Company will be a validly existing corporation under the law of its jurisdiction of incorporation; (iv) the number of
shares of Common Stock issued pursuant to the Registration Statement, together with the number of shares outstanding or reserved at
the time of issuance, will not exceed the respective number of shares authorized by the Company’s certificate of incorporation
in effect at the time of such issuance; (v) the number of shares of Preferred Stock issued pursuant to the Registration
Statement, together with the number of shares outstanding or reserved at the time of issuance, will not exceed the respective number
of shares authorized by the Company’s certificate of incorporation in effect at the time of such issuance; and (vi) all
the foregoing actions to be taken by the Company will have been taken so as not to violate any applicable law and so as to comply
with any requirement or restriction imposed by any court or governmental or regulatory body having jurisdiction over the Company or
any of its property.
Our opinions set forth above are subject to (a) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and similar laws affecting the rights and remedies of creditors generally
and (b) general principles of equity. Our opinions are also subject to the qualification that the enforceability of provisions in
the indenture (including any supplemental indenture) providing for indemnification or contribution, broadly worded waivers, waivers of
rights to damages or defenses, waivers of unknown or future claims, and waivers of statutory, regulatory or constitutional rights may
be limited on public policy or statutory grounds. In addition, we express no opinion with respect to the enforceability of rights to receive
prepayment premiums or the unaccrued portion of original issue discount upon acceleration of any Debt Securities, in each case to the
extent determined to be unreasonable or to constitute unmatured interest or judgment currency provisions.
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the use of our name therein and in the related prospectus under the caption
“Legal Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Ropes & Gray LLP |
| |
|
| |
Ropes & Gray LLP |
Exhibit 5.2
 |
ROPES & GRAY LLP |
| PRUDENTIAL TOWER |
| 800 BOYLSTON STREET |
| BOSTON, MA 02199-3600 |
| WWW.ROPESGRAY.COM |
November 8, 2023
Verastem, Inc.
117 Kendrick Street, Suite 500
Needham, MA 02494
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Verastem, Inc.,
a Delaware corporation (the “Company”), in connection with its filing of a Registration Statement on Form S-3
(the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance and sale of up to $65,104,554
of shares (the “Shares”) of the common stock of the Company, $0.0001 par value (the “Common Stock”).
The Shares will be sold pursuant to a Controlled Equity Offering Sales Agreement, dated August 2, 2021, by and between the Company and
Cantor Fitzgerald & Co. (the “Agreement”).
In connection with this opinion letter, we have
examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed
appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent
verification, upon certificates of officers of the Company, public officials and other appropriate persons.
The opinion expressed below is limited to the Delaware
General Corporation Law.
Based upon and subject to the foregoing, we are
of the opinion that when the Shares are issued out of the Company’s duly authorized Common Stock and issued and delivered in accordance
with the terms of the Agreement against payment of the consideration set forth therein, the Shares will be duly authorized, validly issued,
fully paid and non-assessable.
We hereby consent to your filing this opinion as
an exhibit to the Registration Statement and to the use of our name therein and in the related prospectus under the caption “Legal
Matters.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Ropes & Gray LLP |
| |
|
| |
Ropes & Gray LLP |
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We consent to the reference to our firm
under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of Verastem, Inc. for the registration
of up to $300,000,000 of its common stock, preferred stock, warrants, and debt securities, and to the incorporation by reference therein
of our report dated March 14, 2023, with respect to the consolidated financial statements of Verastem, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
November 08, 2023
Exhibit
25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement
of Eligibility Under
The
Trust Indenture Act of 1939 of a
Corporation
Designated to Act as Trustee
¨
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
800
Nicollet Mall
Minneapolis,
Minnesota |
55402 |
| (Address
of principal executive offices) |
(Zip
Code) |
Alison D.B. Nadeau
U.S. Bank Trust Company, National Association
One Federal Street
Boston, MA 02110
(617) 603-6553
(Name, address and telephone number of agent for
service)
Verastem, Inc.
(Issuer with respect to the Securities)
| Delaware |
27-3269467 |
| (State
or other jurisdiction of incorporation or organization) |
(I.R.S.
Employer Identification No.) |
117
Kendrick Street, Suite 500
Needham, Massachusetts 02494 |
02494 |
| (Address
of Principal Executive Offices) |
(Zip
Code) |
% Notes due 20
(Title of the Indenture
Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following
information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to
exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is
an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the
best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed
as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached
as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence
business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate
trust powers, included as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of September 30, 2023, published pursuant to law or the requirements of its supervising
or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements
of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United States of America, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, State
of Massachusetts on the 8th of November, 2023.
| |
By: |
/s/ Alison D.B. Nadeau |
| |
|
Alison D.B. Nadeau |
| |
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the
“Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The
title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The
main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association
will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not
expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association
shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by
resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting
thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an
aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the
person became a director, or (iii) the date of that person's most recent election to the board of directors, whichever is more recent.
Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of
directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the
next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the
expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there
is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting
of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at
the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in
the Bylaws, or if that day falls on a legal holiday in the state in which the Association is located, on the next following banking
day. If no election is held on the day fixed or in the event of a
legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be
designated by the board of directors, or, if the directors fail to
fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’
advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be
elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner
selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held
by him or her.
A director may
resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall
be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders
at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him
or her is provided, if there is a failure to fulfill one of the affirmative
requirements for qualification, or for cause; provided, however, that a director may not be removed if
the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital
stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock
may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have
only one class of capital stock.
No holder of shares of the capital stock of any
class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association,
whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix.
Transfers of the Association's stock are subject
to the prior written approval of a federal depository institution regulatory agency. If
no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of
Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of
Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise specified in the Articles of
Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association,
at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders.
Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or
reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint
one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one
or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders' meetings and be responsible for authenticating
the records of the Association, and such other officers and employees as may be required to transact the business of this Association.
A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance
with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees,
and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms
and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association's management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided
that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with
law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs
of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have
the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without
the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside
such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside
the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power
to establish or change the location of any office or offices of the Association to any other location permitted under applicable law,
without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The
corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association,
or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders
at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed
at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon
the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected
at a duly called annual or special meeting.
TENTH. These Articles of Association may
be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of
the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders
of such greater amount; provided, that the scope of the Association's activities and services may not be expanded without the prior written
approval of the Comptroller of the Currency. The Association's board of directors may propose one or more amendments to the Articles of
Association for submission to the shareholders.
In
witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual
Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall
be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days
or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of
the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder
of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated
day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold
an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution
of the Association.
Section 1.2. Special
Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least
ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided
by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations
for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies.
Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting
and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record
Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date
of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum
and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any
meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and
the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter
submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors.
The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine
the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at
all annual and special meetings of shareholders.
Section 1.8. Waiver
and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote
Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely
by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board
of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly
limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term
of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified,
or until their earlier resignation or removal.
Section 2.3. Powers.
In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles
of Association, the Bylaws and by law.
Section 2.4. Number.
As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than
twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a
number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting
thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing
directors, the Board by a majority vote of the full Board may increase the size of the Board but not to more than a total of
twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors
only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four
directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying
equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each
director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by
applicable law.
Section 2.5. Organization
Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers
of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed
for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular
Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special
Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or
the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board
shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for
the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before
the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum
and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided
by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of
those directors present and voting shall be the act of the Board.
Section 2.9. Written
Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written
consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote
Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and
such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies.
When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular
meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory
Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board,
provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust
Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external
auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled
by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the
results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits,
the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company
that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must
not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s
fiduciary activities; and
(2) Must
consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control
the fiduciary activities of the Association.
Section 3.3. Executive
Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and
may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the
Board is not meeting.
Section 3.4. Trust
Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary
activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management
Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes
related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the
closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other
Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes
and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities
that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from
time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either
the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee
shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings,
Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of
the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or
recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory
board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its
functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman
of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman
shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred
upon or assigned by the Board.
Section 4.2. President.
The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside
at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also
have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice
President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board
and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the
Board in the absence of both the Chairman and President.
Section 4.4. Secretary.
The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall
keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall
be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records
of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall
also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries
with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other
Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as
from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact
the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several
offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other
authorized officer. Any person may hold two offices.
Section 4.6. Tenure
of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and
qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the
Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board
may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such
form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President,
Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association,
and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall
recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board
may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers,
voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association
shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant
to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any
Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution
of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements,
assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits,
bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association,
or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written
instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association.
The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records.
The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders,
the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of
each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust
Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities
have been properly undertaken and discharged.
Section 7.4. Trust
Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. Notice.
Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail,
in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive
such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws,
prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association
shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145
of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of
insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all
reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled
to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and
shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined
at 12 U.S.C. § 1813(u).
Section 8.2.
Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at
12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be
reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and
(b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12
U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency,
shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws
shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed,
at any regular or special meeting of the Board.
Section 9.2. A copy of
the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be
open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal
Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first
day of December following.
Section 10.2. Governing
Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its
corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination
of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: November 8, 2023
| |
By: |
/s/ Alison D.B. Nadeau |
| |
|
Alison D.B. Nadeau |
| |
|
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 09/30/2023
($000’s)
| | |
09/30/2023 | |
| Assets | |
| |
| Cash
and Balances Due From Depository Institutions | |
$ | 971,860 | |
| Securities | |
| 4,247 | |
| Federal
Funds | |
| 0 | |
| Loans &
Lease Financing Receivables | |
| 0 | |
| Fixed
Assets | |
| 1,548 | |
| Intangible
Assets | |
| 579,147 | |
| Other
Assets | |
| 165,346 | |
| Total
Assets | |
$ | 1,722,148 | |
| | |
| | |
| Liabilities | |
| | |
| Deposits | |
$ | 0 | |
| Fed
Funds | |
| 0 | |
| Treasury
Demand Notes | |
| 0 | |
| Trading
Liabilities | |
| 0 | |
| Other
Borrowed Money | |
| 0 | |
| Acceptances | |
| 0 | |
| Subordinated
Notes and Debentures | |
| 0 | |
| Other
Liabilities | |
| 226,499 | |
| Total
Liabilities | |
$ | 226,499 | |
| | |
| | |
| Equity | |
| | |
| Common
and Preferred Stock | |
| 200 | |
| Surplus | |
| 1,171,635 | |
| Undivided
Profits | |
| 323,814 | |
| Minority
Interest in Subsidiaries | |
| 0 | |
| Total
Equity Capital | |
$ | 1,495,649 | |
| | |
| | |
| Total
Liabilities and Equity Capital | |
$ | 1,722,148 | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Verastem, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| |
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
Rule |
|
|
Amount
Registered |
|
|
Proposed
Maximum
Offering
Price Per
Unit |
|
|
Maximum
Aggregate
Offering Price |
|
|
Fee
Rate |
|
Amount
of
Registration
Fee |
| Fees
to Be Paid |
|
Equity |
|
Common
Stock, par value $0.0001 per share |
|
|
|
|
|
|
|
(1) |
|
|
|
(2) |
|
|
|
(3) |
|
|
|
|
|
|
| |
|
Equity |
|
Preferred
Stock, par value $0.0001 per share |
|
|
|
|
|
|
|
(1) |
|
|
|
(2) |
|
|
|
(3) |
|
|
|
|
|
|
| |
|
Debt |
|
Debt
Securities |
|
|
|
|
|
|
|
(1) |
|
|
|
(2) |
|
|
|
(3) |
|
|
|
|
|
|
| |
|
Other |
|
Warrants |
|
|
|
|
|
|
|
(1) |
|
|
|
(2) |
|
|
|
(3) |
|
|
|
|
|
|
| |
|
Other |
|
Units |
|
|
|
|
|
|
|
(1) |
|
|
|
(2) |
|
|
|
(3) |
|
|
|
|
|
|
| |
|
Unallocated (universal)
shelf |
|
|
|
|
457 |
(o) |
|
|
|
(1) |
|
|
|
(2) |
|
$ |
300,000,000 |
|
|
|
0.0001476 |
|
$ |
44,280.00 |
| |
|
|
|
Total Offering Amounts |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
300,000,000 |
|
|
|
|
|
$ |
44,280.00 |
| |
|
|
|
Total Fees Previously
Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
- |
| |
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
- |
| |
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
44,280.00 |
| (1) |
The registrant is registering hereby an unspecified principal
amount or number and offering price of securities of each identified class as may be offered, from time to time, hereunder, along
with an indeterminate principal amount or number of securities that may be issued upon exercise, settlement, exchange or conversion
of securities offered or sold hereunder. Separate consideration may or may not be received for securities that are issued upon conversion,
exercise or exchange of other securities. |
| (2) |
The proposed maximum aggregate offering price per class of security
will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities
Act. |
| (3) |
Any securities registered hereunder with respect to the primary
offering may be sold separately or as units with other securities registered hereunder. In no event will the aggregate offering price
of all securities sold by the registrant from time to time pursuant to this registration statement exceed $300,000,000. |
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