UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (date of earliest event reported): July 29, 2015

VTV THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction

of incorporation)

001-37524

(Commission File No.)

47-3916571
(IRS Employer
Identification No.)

 

4170 Mendenhall Oaks Pkwy

High Point, NC 27265

(Address of principal executive offices)

 

(336) 841-0300

(Registrant’s telephone number, including area code)

 

NOT APPLICABLE

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
 

 

Item 1.01 Entry into a Material Definitive Agreement

 

Underwriting Agreement

 

On July 29, 2015, vTv Therapeutics Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Piper Jaffray & Co. and Stifel, Nicolaus & Company, Incorporated, as representatives for the underwriters set forth on Schedule I thereto (collectively, the “Underwriters”), relating to the Company’s initial public offering (the “Offering”) of its Class A common stock, par value $0.01 per share (the “Class A Common Stock”). Under the Underwriting Agreement, the Company agreed to sell 7,812,500 shares of Class A Common Stock to the Underwriters at a purchase price per share of $13.95 (the offering price to the public of $15.00 per share minus the underwriters’ discount). The Company also provided the Underwriters with an option to purchase up to an additional 1,171,875 shares of Class A Common Stock to cover over allotments.

 

The Underwriting Agreement includes customary representations, warranties and covenants by the Company. It also provides that the Company will indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”), or contribute to payments the Underwriters may be required to make because of any of those liabilities.

 

Certain of the Underwriters and their respective affiliates have, from time to time, performed, and may in the future perform, various investment banking services for the Company for which they received or will receive customary fees and expenses.

 

The foregoing summary is qualified in its entirety by reference to the form of the Underwriting Agreement, which is filed as Exhibit 1.1 to the Company’s Registration Statement on Form S-1 (File No. 333-204951) (as amended, the “Registration Statement”), and is incorporated herein by reference.

 

Reorganization Transactions

 

In connection with the Offering, the Company completed a series of transactions on July 29, 2015 (the “Reorganization Transactions”) pursuant to a Reorganization Agreement, dated as of July 29, 2015 (the “Reorganization Agreement”), among the Company, vTv Therapeutics LLC (“vTv Therapeutics LLC”), vTvx I Holdings I LLC (“vTvx I”), vTvx Holdings II LLC (“vTvx II”) and vTv Therapeutics Holdings LLC (“Holdings”). The Reorganization Agreement governs the terms of the Reorganization Transactions, which are described in the Registration Statement.

 

In connection with the Reorganization Transactions, as previously reported in the Registration Statement, the Company amended and restated its Certificate of Incorporation and amended and restated its By-Laws. The amended and restated Certificate of Incorporation was filed with the Delaware Secretary of State on July 29, 2015.

 

In the Reorganization Transactions:

 

·vTvx I and vTvx II contributed substantially all of their assets, including all of their personnel and operations (the “Contributed Assets”) to Holdings, in return for interests of Holdings. Assets that were not contributed included restricted cash, certain receivables unrelated to the Company’s operations and land included in property and equipment, net, and liabilities that were not assumed included debt, a contingent distribution payable and other related party liabilities. All assets and liabilities that were not contributed or assumed remained with vTvx I and vTvx II;

 

·Holdings contributed the Contributed Assets to vTv Therapeutics LLC, and, for administrative convenience, Holdings directed that the assets be transferred directly to vTv Therapeutics LLC on behalf of Holdings;

 

·the Company amended and restated its Certificate of Incorporation and By-laws to provide for two classes of common stock:

 

oClass A Common Stock, which represent economic interests and have one vote per share, and

 

oClass B common stock, par value $0.01 per share (“Class B Common Stock”), which represent no economic interests and have one vote per share;

 

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·vTv Therapeutics LLC amended and restated its limited liability company agreement (the “Amended and Restated LLC Agreement”) to provide for two classes of membership units:

 

oa managing member unit, which represents no economic interests and represents 100% of the voting power of vTv Therapeutics LLC, and

 

onon-voting membership units (“vTv Therapeutics LLC Units”), which represent economic interests.

 

·vTv Therapeutics LLC issued the managing member unit to the Company;

 

·vTv Therapeutics LLC issued 25,000,000 vTv Therapeutics LLC Units to Holdings; and

 

·the Company issued 25,000,000 shares of Class B Common Stock, which represents no economic interests in the Company but has the right to cast one vote per share, to Holdings, which correspond to each vTv Therapeutics LLC Unit held by Holdings.

 

After the Reorganization Transactions, the Company completed the Offering, in which 7,812,500 shares of Class A Common Stock were issued (assuming no exercise of the underwriters’ over-allotment option). Of those 7,812,500 shares of Class A Common Stock, 1,666,666 shares were issued to an affiliate of MacAndrews & Forbes Incorporated (“MacAndrews”), which agreed to purchase such shares at the time the Underwriting Agreement was signed. Holdings, vTvx I and vTvx II are also affiliates of MacAndrews.

 

Immediately following the consummation of the Reorganization Transactions and the Offering (assuming no exercise of the underwriters’ over-allotment option):

 

·the only members of vTv Therapeutics LLC are the Company and Holdings;

 

·the Company used the net proceeds from the Offering to purchase 7,812,500 vTv Therapeutics LLC Units, which represent a total of 23.8% of the economic interests in vTv Therapeutics LLC;

 

·Holdings holds 25,000,000 shares of Class B Common Stock (and the same number of corresponding vTv Therapeutics LLC Units, which represent a total of 76.2% of the economic interests in vTv Therapeutics LLC);

 

·as a result of their purchase of shares of Class A Common Stock in the Offering, an affiliate of MacAndrews holds 1,666,666 shares of Class A Common Stock; and

 

·affiliates of MacAndrews beneficially own an aggregate of 81.3% of the total voting power of the Company’s outstanding common stock.

 

The only asset of the Company is its direct interest in vTv Therapeutics LLC. Each share of Class A Common Stock corresponds to a vTv Therapeutics LLC Unit that represents an economic interest held by the Company in vTv Therapeutics LLC, whereas the shares of Class B Common Stock have voting rights only in the Company and represent no economic interests of any kind. Shares of Class B Common Stock are initially owned solely by Holdings and cannot be transferred except in connection with an exchange or transfer of a corresponding vTv Therapeutics LLC Unit.

 

Exchange Agreement

 

On July 29, 2015, the Company entered into an Exchange Agreement with Holdings under which, subject to the terms of the Exchange Agreement and the Amended and Restated LLC Agreement of vTv Therapeutics LLC, vTv Therapeutics LLC Units (along with a corresponding number of shares of the Class B Common Stock) are exchangeable for (i) shares of Class A Common Stock on a one-for-one basis or (ii) cash (based on the market price of the shares of Class A Common Stock), at the Company’s option (as the managing member of vTv Therapeutics LLC), subject to customary conversion rate adjustments for stock splits, stock dividends and reclassifications. Any decision to require an exchange for cash rather than shares of Class A Common Stock will ultimately be determined by the entire board of directors of the Company (the “Board of Directors”).

 

Tax Receivable Agreement

 

On July 29, 2015, the Company entered into a Tax Receivable Agreement with Holdings and M&F TTP Holdings LLC (the “Tax Receivable Agreement”) that provides for the payment by the Company to Holdings (or certain of its transferees or other assignees) of 85% of the amount of cash savings, if any, in U.S. federal, state and local income tax or franchise tax that the Company actually realizes (or, in some circumstances, the Company is deemed to realize) as a result of (a) the exchange of Class B Common Stock, together with the corresponding number of vTv Therapeutics LLC Units, for shares of Class A Common Stock (or for cash), (b) tax benefits related to imputed interest deemed to be paid by the Company as a result of the Tax Receivable Agreement and (c) certain tax benefits attributable to payments under the Tax Receivable Agreement.

 

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Investor Rights Agreement

 

On July 29, 2015, the Company entered into an investor rights agreement with Holdings (the “Investor Rights Agreement”). The Investor Rights Agreement provides Holdings with certain demand, shelf and piggyback registration rights with respect to its shares of Class A Common Stock and also provides Holdings with certain governance rights, depending on the size of its holdings of Class A Common Stock.

 

Under the registration rights provisions of the Investor Rights Agreement:

 

·Holdings and its affiliates have the right to cause the Company to conduct an unlimited number of demand registrations, subject to certain customary restrictions, which demand registrations may take the form of a shelf registration;

 

·once the Company is eligible to do so, Holdings and its affiliates have the right to cause the Company to file and have declared effective a shelf registration statement on Form S-3 with respect to all of their shares of Class A Common Stock; and

 

·Holdings and its affiliates have the right to participate in certain registered offerings by the Company.

 

The registration rights provisions also contain customary provisions relating to cooperation with the registration process, black-out periods and customary securities law indemnity provisions in favor of the selling stockholders. With certain customary exceptions, the Company will be required to bear all registration expenses, other than underwriting discounts and commissions and transfer taxes, associated with any registration of shares pursuant to the Investor Rights Agreement. Registration rights may be transferred by Holdings and its affiliates, subject to certain restrictions. No predetermined penalties or liquidated damages will be payable by the Company if the Company fails to comply with the registration rights provisions of the Investor Rights Agreement.

 

The Company’s Board of Directors has six members. The Investor Rights Agreement also provides that Holdings, subject to applicable corporate governance rules of the SEC and the stock exchange on which the Company is listed (which may require Holdings to designate independent directors), has the right to designate: (i) a majority of the directors (and if the number of directors is even, one director more than 50% of the number of directors) if it beneficially owns more than 50% of the outstanding Company’s common stock, (ii) one less than a majority of the directors (and if the number of directors is even, 50% of the number of directors) if Holdings beneficially owns more than 25% but 50% or less and (iii) one-third of the directors (rounded down to the nearest whole number) if it beneficially owns more than 10% but 25% or less. Holdings loses the right to designate directors at 10% or less. So long as Holdings beneficially owns 25% or more of the outstanding Company’s common stock, it will have the right, subject to applicable corporate governance rules of the SEC and the exchange on which the Company is listed, to designate the members of the committees of the Board of Directors.

 

The Investor Rights Agreement will terminate when MacAndrews & Forbes Incorporated (“MacAndrews”) and its permitted transferees hold less than 2.5% of the Company’s outstanding common equity. To the extent that Holdings is dissolved or liquidated, MacAndrews and/or its affiliates will succeed to Holdings’ rights and obligations under the Investor Rights Agreement.

 

Indemnification Agreements

 

On July 29, 2015, the Company entered into indemnification agreements with each of its executive officers and directors. These agreements provided, in general, that the Company indemnifies the applicable executive officer and director to the fullest extent permitted by law in connection with their service to the Company or on the Company’s behalf. The summary of the indemnification agreements is qualified in its entirety by reference to the form of the indemnification agreement, which is filed as Exhibit 10.7 to the Registration Statement, and is incorporated herein by reference.

 

The foregoing summaries are qualified in their entirety by reference to the Reorganization Agreement, Amended and Restated LLC Agreement, Investor Rights Agreement, Exchange Agreement and Tax Receivable Agreement, which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and are incorporated herein by reference.

 

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Item 3.02 Unregistered Sales of Equity Securities

 

On July 29, 2015, in connection with the Reorganization Transactions, the Company issued an aggregate of 25,000,000 shares of Class B Common Stock to Holdings in consideration for the Contributed Assets. The shares of Class B Common Stock were issued in reliance on the registration exemption contained in Section 4(a)(2) of the Securities Act, on the basis that the transaction did not involve a public offering. No underwriters were involved in the transaction.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On July 29, 2015, in connection with the Reorganization Transactions, the Company adopted the vTv Therapeutics Inc. 2015 Omnibus Equity Incentive Plan (the “Plan”), including the form of option award agreement (“Form of Option Award”), as described in the Registration Statement.

 

The foregoing summary is qualified in its entirety by reference to the Plan and the Form of Option Award, which are filed herewith as Exhibits 10.6 and 10.7, respectively, and is incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

On July 29, 2015, in connection with the Reorganization Transactions, the Company amended and restated its certificate of incorporation and amended and restated its by-laws as described in Item 1.01 above.

 

The amended and restated certificate of incorporation is filed herewith as Exhibit 3.1 and incorporated by reference herein, and the amended and restated by-laws are filed herewith as Exhibit 3.2 and incorporated by reference herein.

 

Item 9.01 Financial Statements and Exhibits

 

(d)                  Exhibits

 

Exhibit No. Description
3.1 Amended and Restated Certificate of Incorporation.
3.2 Amended and Restated By-laws.
10.1 Reorganization Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc., vTv Therapeutics LLC, vTvx Holdings I LLC, vTvx Holdings II LLC and vTv Therapeutics Holdings LLC.
10.2 Amended and Restated Limited Liability Company Agreement of vTv Therapeutics LLC, dated July 29, 2015.
10.3 Investor Rights Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc., vTv Therapeutics Holdings LLC and other stockholders party thereto from time to time.
10.4 Exchange Agreement, dated as of July 29, 2015, among vTv Therapeutics LLC, vTv Therapeutics Inc. and vTv Therapeutics Holdings LLC.
10.5 Tax Receivable Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc. and the other persons named therein.
10.6 vTv Therapeutics Inc. 2015 Omnibus Equity Incentive Plan.
10.7 vTv Therapeutics Inc. Form of Nonqualified Option Award Agreement.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

  VTV THERAPEUTICS INC.
     
  By: /s/ Rudy C. Howard
  Name: Rudy C. Howard
  Title: Chief Financial Officer and Secretary

 

Dated: August 4, 2015

 

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EXHIBIT INDEX

 

Exhibit No. Description
3.1 Amended and Restated Certificate of Incorporation.
3.2 Amended and Restated By-laws.
10.1 Reorganization Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc., vTv Therapeutics LLC, vTvx Holdings I LLC, vTvx Holdings II LLC and vTv Therapeutics Holdings LLC.
10.2 Amended and Restated Limited Liability Company Agreement of vTv Therapeutics LLC, dated July 29, 2015.
10.3 Investor Rights Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc., vTv Therapeutics Holdings LLC and other stockholders party thereto from time to time.
10.4 Exchange Agreement, dated as of July 29, 2015, among vTv Therapeutics LLC, vTv Therapeutics Inc. and vTv Therapeutics Holdings LLC.
10.5 Tax Receivable Agreement, dated as of July 29, 2015, among vTv Therapeutics Inc. and the other persons named therein.
10.6 vTv Therapeutics Inc. 2015 Omnibus Equity Incentive Plan.
10.7 vTv Therapeutics Inc. Form of Nonqualified Option Award Agreement.

 

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Exhibit 3.1

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

of

VTV THERAPEUTICS INC.

 

(Pursuant to Sections 242 and 245 of
the General Corporation Law of the State of Delaware)

 

vTv Therapeutics Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:

 

FIRST: The name of the Corporation is vTv Therapeutics Inc. The date of filing of its original certificate of incorporation (the “Original Certificate of Incorporation”) with the Secretary of State of the State of Delaware was April 2, 2015.

 

SECOND: This Amended and Restated Certificate of Incorporation (this “Amended Certificate of Incorporation”) amends and restates in its entirety the Corporation’s certificate of incorporation as currently in effect and has been duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware (as from time to time in effect, the “General Corporation Law”), by written consent of the holders of all of the outstanding stock entitled to vote thereon in accordance with the provisions of Section 228 of the General Corporation Law.

 

THIRD: This Amended Certificate of Incorporation amends and restates in its entirety the Original Certificate of Incorporation of the Corporation to read as follows:

 

1.                  Name. The name of the Corporation is vTv Therapeutics Inc.

 

2.                  Address; Registered Office and Agent. The address of the Corporation’s registered office in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle, State of Delaware 19808; and the name of its registered agent at such address is Corporation Service Company.

 

3.                  Purposes. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.

 

4.                  Number of Shares.

 

4.1              The total number of shares of all classes of stock that the Corporation shall have authority to issue is 250,000,000 shares, consisting of: (i) 200,000,000 shares of common stock, divided into (a) 100,000,000 shares of Class A common stock, with the par value of $0.01 per share (the “Class A Common Stock”) and (b) 100,000,000 shares of Class B common stock, with the par value of $0.01 per share (the “Class B Common Stock” and, together with Class A Common Stock, the “Common Stock”); and (ii) 50,000,000 shares of preferred stock, with the par value of $0.01 per share (the “Preferred Stock”).

 

 
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4.2              Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, the number of authorized shares of any class of the Common Stock or the Preferred Stock may be increased or decreased, in each case by the affirmative vote of the holders of a majority of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, and no vote of the holders of any class of the Common Stock or the Preferred Stock voting separately as a class will be required therefor. Notwithstanding the immediately preceding sentence, the number of authorized shares of any particular class may not be decreased below the number of shares of such class then outstanding, plus:

 

(i)                 in the case of Class A Common Stock, the number of shares of Class A Common Stock issuable in connection with (x) the exchange of all outstanding shares of Class B Common Stock and all shares of Class B Common Stock issuable as described in clause (ii) below, together with the corresponding Nonvoting Common Units constituting the remainder of any Paired Interests in which such shares are included, pursuant to Section 2.01 of the Exchange Agreement and (y) the exercise of outstanding options, warrants, exchange rights, conversion rights or similar rights for Class A Common Stock; and

 

(ii)               in the case of Class B Common Stock, the number of shares of Class B Common Stock issuable in connection with the exercise of outstanding options, warrants, exchange rights, conversion rights or similar rights for Class B Common Stock.

 

5.                  Classes of Shares. The designation, relative rights, preferences and limitations of the shares of each class of stock are as follows:

 

5.1              Common Stock.

 

(i)                 Voting Rights.

 

(1)               Each holder of Class A Common Stock will be entitled to one vote for each share of Class A Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote, and each holder of Class B Common Stock will be entitled to one vote for each share of Class B Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote.

 

(2)               The holders of the outstanding shares of Class A Common Stock and Class B Common Stock shall each be entitled to vote separately upon any amendment to this Amended Certificate of Incorporation (including by merger, consolidation, reorganization or similar event) that would alter or change the powers, preferences, or special rights of the shares of such class of Common Stock in a manner that affects them adversely.

 

 
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(3)               Except as otherwise required in this Amended Certificate of Incorporation or by applicable law, the holders of Common Stock will vote together as a single class on all matters (or, if any holders of Preferred Stock are entitled to vote together with the holders of Common Stock, as a single class with the holders of Preferred Stock).

 

(ii)               Dividends; Stock Splits or Combinations.

 

(1)               Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference senior to or the right to participate with the Class A Common Stock with respect to the payment of dividends, dividends of cash or property may be declared and paid on the Class A Common Stock out of the assets of the Corporation that are by law available therefor, at the times and in the amounts as the board of directors of the Corporation (the “Board”) in its discretion may determine.

 

(2)               Except as provided in Section 5.1(ii)(3) with respect to stock dividends, dividends of cash or property may not be declared or paid on the Class B Common Stock.

 

(3)               In no event will any stock dividend, stock split, reverse stock split, combination of stock, reclassification or recapitalization be declared or made on any class of Common Stock (each, a “Stock Adjustment”) unless (a) a corresponding Stock Adjustment for all other classes of Common Stock not so adjusted at the time outstanding is made in the same proportion and the same manner and (b) the Stock Adjustment has been reflected in the same economically equivalent manner on all Nonvoting Common Units. Stock dividends with respect to each class of Common Stock may only be paid with shares of stock of the same class of Common Stock.

 

(iii)             Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and of the preferential and other amounts, if any, to which the holders of Preferred Stock are entitled, if any, the holders of all outstanding shares of Common Stock will be entitled to receive, pari passu, an amount per share equal to the par value thereof, and thereafter the holders of all outstanding shares of Class A Common Stock will be entitled to receive the remaining assets of the Corporation available for distribution ratably in proportion to the number of shares of Class A Common Stock. Without limiting the rights of the holders of Class B Common Stock to exchange their shares of Class B Common Stock, together with the corresponding Nonvoting Common Units constituting the remainder of any Paired Interests in which such shares are included, for shares of Class A Common Stock in accordance with Section 2.01 of the Exchange Agreement (or for the consideration payable in respect of shares of Class A Common Stock in such voluntary or involuntary liquidation, dissolution or winding up), the holders of shares of Class B Common Stock, as such, will not be entitled to receive, with respect to such shares, any assets of the Corporation in excess of the par value thereof, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

 

 
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5.2              Preferred Stock. Shares of Preferred Stock may be issued from time to time in one or more series of any number of shares, provided that the aggregate number of shares issued and not retired of any and all such series shall not exceed the total number of shares of Preferred Stock hereinabove authorized, and with such powers, including voting powers, if any, and the designations, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, all as shall hereafter be stated and expressed in the resolution or resolutions providing for the designation and issue of such shares of Preferred Stock from time to time adopted by the Board pursuant to authority so to do which is hereby expressly vested in the Board. The powers, including voting powers, if any, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Each series of shares of Preferred Stock: (i) may have such voting rights or powers, full or limited, if any; (ii) may be subject to redemption at such time or times and at such prices, if any; (iii) may be entitled to receive dividends (which may be cumulative or non-cumulative) at such rate or rates, on such conditions and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or series of stock, if any; (iv) may have such rights upon the voluntary or involuntary liquidation, winding up or dissolution of, upon any distribution of the assets of, or in the event of any merger, sale or consolidation of, the Corporation, if any; (v) may be made convertible into or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the Corporation (or any other securities of the Corporation or any other Person) at such price or prices or at such rates of exchange and with such adjustments, if any; (vi) may be entitled to the benefit of a sinking fund to be applied to the purchase or redemption of shares of such series in such amount or amounts, if any; (vii) may be entitled to the benefit of conditions and restrictions upon the creation of indebtedness of the Corporation or any subsidiary, upon the issue of any additional shares (including additional shares of such series or of any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Corporation or any subsidiary of, any outstanding shares of the Corporation, if any; (viii) may be subject to restrictions on transfer or registration of transfer, or on the amount of shares that may be owned by any Person or group of Persons; and (ix) may have such other relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof, if any; all as shall be stated in said resolution or resolutions of the Board providing for the designation and issue of such shares of Preferred Stock.

 

6.                  Exchange of Shares.

 

6.1              Exchange of Class B Common Stock. Shares of Class B Common Stock may be exchanged, together with the corresponding Nonvoting Common Units constituting the remainder of any Paired Interests in which such shares are included, as applicable, at any time and from time to time for shares of Class A Common Stock, in accordance with Section 2.01 of the Exchange Agreement.

 

 
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6.2              Taxes. The issuance of shares of Class A Common Stock upon the exercise by holders of shares of Class B Common Stock of their right under Section 2.01 of the Exchange Agreement to exchange Paired Interests will be made without charge to the holders of the shares of Class B Common Stock for any transfer taxes, stamp taxes or duties or other similar tax in respect of the issuance; provided, however, that if any such shares of Class A Common Stock are to be issued in a name other than that of the then record holder of the shares of Class B Common Stock being exchanged (or The Depository Trust Company or its nominee for the account of a participant of The Depository Trust Company that will hold the shares for the account of such holder), then such holder and/or the Person in whose name such shares are to be delivered, shall pay to the Corporation the amount of any tax that may be payable in respect of any transfer involved in the issuance or shall establish to the reasonable satisfaction of the Corporation that the tax has been paid or is not payable.

 

7.                  Meetings of Stockholders.

 

7.1              Action by Written Consent. From and after the Triggering Event, any action required or permitted to be taken by the stockholders of the Corporation may be effected only at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. Prior to the Triggering Event, any action required or permitted to be taken by the stockholders of the Corporation may be effected by the consent in writing of the holders of a majority of the total voting power of the Corporation entitled to vote thereon, voting together as a single class in lieu of a duly called annual or special meeting of stockholders.

 

7.2              Election of Directors by Written Ballot. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot.

 

8.                  Business Combinations.

 

8.1              Section 203 of the General Corporation Law. The Corporation will not be subject to the provisions of Section 203 of the General Corporation Law.

 

8.2              Limitations on Business Combinations. Notwithstanding Section 8.1, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Corporation’s Class A Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder (as defined below) for a period of three years following the time that such stockholder became an interested stockholder, unless:

 

(i)                 prior to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder, or

 

(ii)               upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least eighty-five (85)% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are Directors and also officers or (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or

 

 
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(iii)             at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least two thirds of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.

 

8.3              Definitions. For purposes of this Article 8:

 

(i)                 affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

 

(ii)               associate,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

 

(iii)             business combination,” when used in reference to the Corporation and any interested stockholder, means:

 

(1)               any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the interested stockholder, or (b) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section 8.2 is not applicable to the surviving entity;

 

(2)               any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;

 

 
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(3)               any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant to a merger under Section 251(g) of the General Corporation Law; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (d) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (e) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (c)-(e) of this subsection (3) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);

 

(4)               any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or

 

(5)               any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (1)-(4) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.

 

(iv)             control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article 8, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

 

 
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(v)               interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the affiliates and associates of such person; provided, however, that the term “interested stockholder” shall not include (a) the Principal Stockholders or Principal Stockholder transferees, or any affiliates of any of the foregoing, or (b) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation; provided that such person specified in this clause (b) shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

 

(vi)             owner,” including the terms “own” and “owned,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:

 

(1)               beneficially owns such stock, directly or indirectly; or

 

(2)               has (a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (b) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten or more persons; or

 

(3)               has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (b) of subsection (2) above), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.

 

(vii)           person” means any individual, corporation, partnership, unincorporated association or other entity.

 

(viii)         stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.

 

(ix)             Principal Stockholder transferee” means any Person who acquires voting stock of the Corporation from a Principal Stockholder (other than in connection with a public offering) and who is designated in writing by such Principal Stockholder as a “Principal Stockholder transferee.”

 

(x)               voting stock” means stock of any class or series entitled to vote generally in the election of directors.

 

 
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9.                  Corporate Opportunities.

 

9.1              Certain Acknowledgement. In recognition and anticipation that, subject to certain contractual commitments entered into with the Corporation and/or its subsidiaries, (i) certain directors, principals, officers, employees and/or other representatives of investment funds or vehicles affiliated with the Principal Stockholders and their respective Affiliates may serve as directors, officers or agents of the Corporation or any of its subsidiaries, (ii) the Principal Stockholders and their Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) certain members of the Board who are not officers or employees of the Corporation and/or any of its subsidiaries, but including consultants to the Principal Stockholders (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article 9 are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Principal Stockholders, certain of the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation and its Directors, officers and stockholders in connection therewith.

 

9.2              Scope. The Corporation waives, to the maximum extent permitted by law, the application of the doctrine of corporate opportunity, or any other analogous doctrine, with respect to the Corporation, to the Principal Stockholders, any Non-Employee Directors or any of their respective Affiliates; provided that, for the avoidance of doubt, the foregoing waiver shall not apply to Directors who are officers or employees of the Corporation but shall apply to Directors who are consultants to the Principal Stockholders (each Person entitled such waiver, an “Exempted Person”). To the maximum extent permitted by law, except to the extent otherwise provided in any agreement between an Exempted Person and the Corporation and/or any of its subsidiaries, no Exempted Person shall have any obligation to refrain from (i) engaging in the same or similar activities or lines of business as the Corporation or any of its Affiliates or developing or marketing any products or services that compete, directly or indirectly, with those of the Corporation or any of its Affiliates today or in which the Corporation or any of its Affiliates proposes to engage or develop, (ii) investing or owning any interest publicly or privately in, or developing a business relationship with, any Person engaged in the same or similar activities or lines of business as, or otherwise in competition with, the Corporation or any of its Affiliates or (iii) doing business with any client or customer of the Corporation or any of its Affiliates (each of the activities referred to in clauses (i)-(iii) above, a “Specified Activity”). The Corporation renounces any interest or expectancy in, or in being offered an opportunity to participate in, any Specified Activity that may be presented to or become known to any Exempted Person. Notwithstanding anything to the contrary in this Article 9, no Exempted Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Exempted Person engages in any of the Specified Activities. To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Exempted Person and the Corporation or any of its Affiliates, except as provided in Section 9.3 hereof. Subject to Section 9.3, in the event that any Exempted Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Exempted Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Exempted Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person.

 

 
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9.3              Allocation of Corporate Opportunities. Notwithstanding anything in Section 9.2 to the contrary, the Corporation does not renounce its interest in any corporate opportunity offered to any Director who serves as an officer of the Corporation.

 

9.4              Certain Matters Deemed Not Corporate Opportunities. In addition to and notwithstanding the foregoing provisions of this Article 9, a corporate opportunity shall not be deemed to belong to the Corporation if it is a business opportunity that the Corporation is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable expectancy.

 

9.5              Amendment of this Article. No amendment or repeal of this Article 9 in accordance with the provisions of Article 13 shall apply to or have any effect on the liability or alleged liability of any Exempted Person for or with respect to any activities or opportunities of which such Exempted Person becomes aware or otherwise relies on the protection afforded to such Exempted Person prior to such amendment or repeal. This Article 9 shall not limit any protections or defenses available to, or indemnification or advancement rights of, any Director or officer of the Corporation under this Amended Certificate of Incorporation, the By-laws or applicable law.

 

9.6              Notice of this Article. To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article 9.

 

9.7              Certain Definitions. For purposes of this Article 9:

 

(i)                 Corporation” means the Corporation, any of its subsidiaries (including vTv Therapeutics LLC and its subsidiaries) and/or any of its Affiliates; and

 

(ii)               Affiliate” means (a) in respect of the Principal Stockholders, any Person that, directly or indirectly, is controlled by the Principal Stockholders, controls the Principal Stockholders or is under common control with the Principal Stockholders and shall include any principal, member, director, partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that is controlled by the Corporation), (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is controlled by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation.

 

 
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10.              Limitation of Liability.

 

10.1          To the fullest extent permitted under the General Corporation Law, as amended from time to time, no Director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director.

 

10.2          Any amendment or repeal of Section 10.1 shall not adversely affect any right or protection of a Director hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.

 

11.              Indemnification.

 

11.1          Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any Person (a “Covered Person”) who was or is a party or is threatened to be made a party to or otherwise involved any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a Person for whom he or she is the legal representative, is or was a Director or officer of the Corporation or, while a Director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another entity or enterprise, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees and expenses, judgments, fines, excise taxes or penalties under the Employee Retirement Income Security Act of 1974, as amended, and amounts paid or to be paid in settlement) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 11.3, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized by the Board.

 

11.2          Prepayment of Expenses. To the extent not prohibited by applicable law, the Corporation shall pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article 11 or otherwise.

 

 
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11.3          Claims. If a claim for indemnification or advancement of expenses under this Article 11 is not paid in full within thirty days after a written claim therefor by the Covered Person has been received by the Corporation, the Covered Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In (i) any suit brought by a Covered Person to enforce a right to indemnification hereunder (but not in a suit brought by a Covered Person to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, such Person has not met any applicable standard for indemnification set forth in the General Corporation Law. Neither the failure of the Corporation (including by its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met the applicable standard of conduct set forth in the General Corporation Law, nor an actual determination by the Corporation (including by its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or its stockholders) that the Covered Person has not met such applicable standard of conduct, shall create a presumption that such Person has not met the applicable standard of conduct or, in the case of such a suit brought by the Covered Person, be a defense to such suit.

 

11.4          Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article 11 shall not be exclusive of any other rights that such Covered Person may have or hereafter acquire under any statute, provision of this Amended Certificate of Incorporation, the By-laws, agreement, vote of stockholders or disinterested Directors or otherwise.

 

11.5          Other Sources. Subject to Section 11.6, the Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another entity or enterprise shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other entity or enterprise.

 

11.6          Indemnitor of First Resort. In all events, (i) the Corporation hereby agrees that it is the indemnitor of first resort (i.e. its obligation to a Covered Person to provide advancement and/or indemnification to such Covered Person are primary and any obligation of any Principal Stockholder (including any Affiliate thereof other than the Corporation) to provide advancement or indemnification hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter), or any obligation of any insurer of any Principal Stockholder to provide insurance coverage, for the same expenses, liabilities, judgments, penalties, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such expenses, liabilities, judgments, penalties, fines and amounts paid in settlement) incurred by such Covered Person are secondary and (ii) if any Principal Stockholder (or any Affiliate thereof, other than the Corporation) pays or causes to be paid, for any reason, any amounts otherwise indemnifiable hereunder or under any other indemnification agreement (whether pursuant to contract, by-laws or charter) with such Covered Person, then (x) such Principal Stockholder (or such Affiliate, as the case may be), as the case may be, shall be fully subrogated to all rights of such Covered Person with respect to such payment and (y) the Corporation shall fully indemnify, reimburse and hold harmless such Principal Stockholder (or such other Affiliate), as the case may be, for all such payments actually made by such Principal Stockholder (or such other Affiliate).

 

 
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11.7          Amendment or Repeal. Any amendment or repeal of the foregoing provisions of this Article 11 shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to the time of such amendment or repeal.

 

11.8          Other Indemnification and Prepayment of Expenses. This Article 11 shall not limit the right of the Corporation, to the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to Persons other than Covered Persons when and as authorized by appropriate corporate action.

 

11.9          Reliance. Covered Persons who after the date of the adoption of this provision become or remain a Covered Person described in Article 11 will be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this Article 11 in entering into or continuing the service. The rights to indemnification and to the advance of expenses conferred in this Article 11 will apply to claims made against any Covered Person described in Article 11 arising out of acts or omissions in respect of the Corporation or one of its subsidiaries that occurred or occur both prior and subsequent to the adoption hereof. The rights conferred upon Covered Persons in this Article 11 shall be contract rights and such rights shall continue as to a Covered Person who has ceased to be a Director or officer and shall inure to the benefit of the Covered Person’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article 11 that adversely affects any right of a Covered Person or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.

 

11.10      Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any Director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law.

 

12.              Adoption, Amendment or Repeal of By-Laws. In furtherance and not in limitation of the powers conferred by law, the Board is expressly authorized to make, alter, amend or repeal the By-laws subject to the power of the stockholders of the Corporation entitled to vote with respect thereto to make, alter, amend or repeal the By-laws.

 

13.              Adoption, Amendment and Repeal of Certificate. Subject to Article 5, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended Certificate of Incorporation, in the manner now or hereafter prescribed by the General Corporate Law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, Directors or any other Persons whomsoever by and pursuant to this Amended Certificate of Incorporation in its present form or as hereafter amended, are granted and held subject to this reservation.

 

 
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14.              Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the Certificate of Incorporation or these By-laws (as either may be amended from time to time, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be the Court of Chancery in the State of Delaware (or if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware). If any action the subject matter of which is within the scope of the preceding sentence is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the preceding sentence and (ii) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.

 

15.              Severability. If any provision or provisions of this Amended Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Amended Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its Directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law.

 

16.              Definitions. As used in this Amended Certificate of Incorporation, unless the context otherwise requires or as set forth in another Article or Section of this Amended Certificate of Incorporation, the term:

 

 
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(a)                Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided, that (i) neither the Corporation nor any of its subsidiaries will be deemed an Affiliate of any stockholder of the Corporation or any of such stockholders’ Affiliates and (ii) no stockholder of the Corporation will be deemed an Affiliate of any other stockholder of the Corporation, in each case, solely by reason of any investment in the Corporation or any rights conferred on such stockholder pursuant to the Investor Rights Agreement (including any representatives of such stockholder serving on the Board).

 

(b)               Amended Certificate of Incorporation” is defined in the recitals.

 

(c)                Board” is defined in Section 5.1(ii)(1).

 

(d)               Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in the City of New York.

 

(e)               By-laws” is defined in Section 7.2.

 

(f)                Chairman” means the Chairman of the Board.

 

(g)               Chief Executive Officer” means the Chief Executive Officer of the Corporation.

 

(h)               Class A Common Stock” is defined in Section 4.1.

 

(i)                 Class B Common Stock” is defined in Section 4.1.

 

(j)                 Common Stock” is defined in Section 4.1.

 

 
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(k)               control” (including the terms “controlling” and “controlled”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

 

(l)                 Corporation” means vTv Therapeutics Inc.

 

(m)               Covered Person” is defined in Section 11.1.

 

(n)                Director” is defined in Section 7.2.

 

(o)                Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor law or statute, together with the rules and regulations promulgated thereunder.

 

(p)                Exchange Agreement” means the Exchange Agreement, dated as of July 29, 2015, by and among vTv Therapeutics LLC, the Corporation and vTv Therapeutics Holdings LLC (and its successors and assigns), as the same may be amended, restated, supplemented and/or otherwise modified, from time to time.

 

(q)                Exempted Person” is defined in Section 9.2.

 

(r)                 Family Member” shall mean with respect to any natural person, the spouse, parents, grandparents, lineal descendants, siblings of such person or such person's spouse, and lineal descendants of siblings of such person or such person's spouse. Lineal descendants shall include adopted persons, but only so long as they are adopted during minority.

 

(s)                Foreign Action” is defined in Section 14.

 

(t)                 General Corporation Law” is defined in the recitals.

 

(u)                Investor Rights Agreement” means that certain Investor Rights Agreement, dated as of July 29, 2015, by and between the Corporation and vTv Therapeutics Holdings LLC (and its successors and assigns), as the same may be amended, restated, supplemented and/or otherwise modified, from time to time.

 

 
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(v)               Nonvoting Common Unit” means a Nonvoting Common Unit of vTv Therapeutics LLC.

 

(w)              Paired Interest” means one Nonvoting Common Unit together with one share of Class B Common Stock, subject to adjustment pursuant to Section 2.03(a) of the Exchange Agreement.

 

(x)                Person” means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity.

 

(y)               Preferred Stock” is defined in Section 4.1.

 

(z)                Principal Stockholders” means vTv Therapeutics Holdings LLC (and its successors and assigns), vTvx I Holdings LLC, vTvx II Holdings LLC, M&F TTP Holdings LLC and any other Affiliates thereof or of MacAndrews & Forbes Incorporated.

 

(aa)             Proceeding” is defined in Section 11.1.

 

(bb)            Specified Activity” is defined in Section 9.2.

 

(cc)             Stock Adjustment” is defined in Section 5.1(ii)(3).

 

(dd)            Triggering Event” means the first date on which the Principal Stockholders cease to beneficially own (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) shares representing at least 50% of the issued and outstanding shares of Common Stock.

 

(ee)            Vice Chairman” means the Vice Chairman of the Board.

 

[Remainder of page intentionally left blank.]

 

 
 

 

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation of vTv Therapeutics Inc. has been duly executed by the authorized officer below this 29th day of July 2015.

 

By:/s/ Stephen L. Holcombe  
  Name: Stephen L. Holcombe  
  Title: President and Chief Executive Officer  

 

 

[Signature Page to Amended and Restated Certificate of Incorporation]

 

 
 

Exhibit 3.2

 

 

 

 

 

AMENDED AND RESTATED BY-LAWS

 

of

 

vtv therapeutics INC.

 

(A Delaware Corporation)

 

 

 

 

 

 

 

 
 

TABLE OF CONTENTS

 

Page

 

ARTICLE 1 DEFINITIONS 1
ARTICLE 2 STOCKHOLDERS 3
ARTICLE 3 DIRECTORS 11
ARTICLE 4 COMMITTEES OF THE BOARD 17
ARTICLE 5 OFFICERS 18
ARTICLE 6 GENERAL PROVISIONS 20

 

 
 

ARTICLE 1

 

DEFINITIONS

 

As used in these By-laws, unless the context otherwise requires, the term:

 

1.1              “Assistant Secretary” means an Assistant Secretary of the Corporation.

 

1.2              “Assistant Treasurer” means an Assistant Treasurer of the Corporation.

 

1.3              “Board” means the Board of Directors of the Corporation.

 

1.4              “By-laws” means the By-laws of the Corporation, as amended and restated.

 

1.5              “Certificate of Incorporation” means the Certificate of Incorporation of the Corporation, as amended and restated.

 

1.6              “Chairman” means the Chairman of the Board and includes any Executive Chairman.

 

1.7              “Chief Executive Officer” means the Chief Executive Officer of the Corporation.

 

1.8              “control” (including the terms “controlling” and “controlled”), with respect to the relationship between or among two or more persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of such subject person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.

 

1.9              “Corporation” means vTv Therapeutics Inc.

 

1.10            “Derivative” is defined in Section 2.2(D)(iii).

 

1.11            “Directors” means the directors of the Corporation.

 

1.12            “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor law or statute, and the rules and regulations promulgated thereunder.

 

1.13            “Executive Chairman” means the Executive Chairman of the Board.

 

1.14            “General Corporation Law” means the General Corporation Law of the State of Delaware, as amended.

 

1.15            “Investor Rights Agreement” means that certain Investor Rights Agreement, dated as of July 29, 2015, by and between the Corporation and vTv Therapeutics Holdings LLC (and its successors and assigns), as the same may be amended, restated, supplemented and/or otherwise modified, from time to time.

 

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1.16          “law” means any U.S. or non-U.S., federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority (including any department, court, agency or official, or non-governmental self-regulatory organization, agency or authority and any political subdivision or instrumentality thereof).

 

1.17          “Nominating Stockholder” is defined in Section 3.3(B).

 

1.18          “Notice of Business” is defined in Section 2.2(C).

 

1.19          “Notice of Nomination” is defined in Section 3.3(C).

 

1.20          “Notice Record Date” is defined in Section 2.4(A).

 

1.21          “Office of the Corporation” means the principal executive offices of the Corporation, anything in Section 131 of the General Corporation Law to the contrary notwithstanding.

 

1.22          “President” means the President of the Corporation.

 

1.23          “Proponent” is defined in Section 2.2(D)(i).

 

1.24          “Public Disclosure” is defined in Section 2.2(I).

 

1.25          “Qualifying Shares” is defined in Section 3.4.

 

1.26          “SEC” means the Securities and Exchange Commission.

 

1.27          “Secretary” means the Secretary of the Corporation.

 

1.28          “Stockholder Associated Person” is defined in Section 2.2(J).

 

1.29          “Stockholder Business” is defined in Section 2.2(B).

 

1.30          “Stockholder Information” is defined in Section 2.2(D)(iii).

 

1.31          “Stockholder Nominees” is defined in Section 3.3(B).

 

1.32          “Stockholders” means the stockholders of the Corporation.

 

1.33          “Treasurer” means the Treasurer of the Corporation.

 

1.34          “Triggering Event” means shall have the meaning set forth in the Certificate of Incorporation.

 

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1.35          “Vice Chairman” means the Vice Chairman of the Board.

 

1.36          “Vice President” means a Vice President of the Corporation.

 

1.37          “Voting Commitment” is defined in Section 3.4.

 

1.38          “Voting Record Date” is defined in Section 2.4(A).

 

ARTICLE 2

 

STOCKHOLDERS

 

2.1            Place of Meetings. Meetings of Stockholders may be held within or without the State of Delaware, at such place or solely by means of remote communication or otherwise, as may be designated by the Board from time to time.

 

2.2            Annual Meetings; Stockholder Proposals.

 

(A)      A meeting of Stockholders for the election of Directors and other business shall be held annually at such date and time as may be designated by the Board from time to time.

 

(B)      At an annual meeting of the Stockholders, only business (other than business relating to the nomination or election of Directors, which is governed by Section 3.3) that has been properly brought before the Stockholder meeting in accordance with the procedures set forth in this Section 2.2 shall be conducted. To be properly brought before a meeting of Stockholders, such business must be brought before the meeting (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (a) was a Stockholder of record of the Corporation when the notice required by this Section 2.2 is delivered to the Secretary and at the time of the meeting, (b) is entitled to vote at the meeting and (c) complies with the notice and other provisions of this Section 2.2. Subject to Section 2.2(K), and except with respect to nominations or elections of Directors, which are governed by Section 3.3, Section 2.2(B)(ii) is the exclusive means by which a Stockholder may bring business before a meeting of Stockholders; provided that if Rule 14a-8 of the Exchange Act (or any successor rule) is applicable, a Stockholder may not bring business before any meeting if the Stockholder fails to meet the requirements of such rule. Any business brought before a meeting in accordance with Section 2.2(B)(ii) is referred to as “Stockholder Business.”

 

(C)      Subject to Section 2.2(K), at any annual meeting of Stockholders, all proposals of Stockholder Business must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Business”) and must otherwise be a proper matter for Stockholder action. To be timely, the Notice of Business must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary, by no earlier than 120 days and no later than 90 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (i) the annual meeting of Stockholders is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders, (ii) no annual meeting was held during the prior year or (iii) in the case of the Corporation’s first annual meeting of Stockholders as a corporation with a class of equity securities registered under the Exchange Act, the notice by the Stockholder to be timely must be received (a) no earlier than 120 days before such annual meeting and (b) no later than the later of 90 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure. In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of a Stockholder meeting commence a new time period (or extend any time period) for the giving of the Notice of Business.

 

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(D)      The Notice of Business must set forth:

 

(i)      the name and record address of each Stockholder proposing Stockholder Business (the “Proponent”), as they appear on the Corporation’s books;

 

(ii)      the name and address of any Stockholder Associated Person;

 

(iii)      as to each Proponent and any Stockholder Associated Person, (a) the class or series and number of shares of stock directly or indirectly held of record and beneficially by the Proponent or Stockholder Associated Person, (b) the date such shares of stock were acquired, (c) a description of any agreement, arrangement or understanding, direct or indirect, with respect to such Stockholder Business between or among the Proponent, any Stockholder Associated Person or any others (including their names) acting in concert with any of the foregoing, (d) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class of securities and/or borrowed or loaned shares) that has been entered into, directly or indirectly, as of the date of the Proponent’s notice by, or on behalf of, the Proponent or any Stockholder Associated Person, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the Proponent or any Stockholder Associated Person with respect to shares of stock of the Corporation or with a value derived in whole or in part from the value or decrease in value of any class or series of stock of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of stock of the Corporation or otherwise (a “Derivative”), (e) a description in reasonable detail of any proxy (including revocable proxies), contract, arrangement, understanding or other relationship pursuant to which the Proponent or Stockholder Associated Person has a right to vote any shares of stock of the Corporation, (f) any rights to dividends on the stock of the Corporation owned beneficially by the Proponent or Stockholder Associated Person that are separated or separable from the underlying stock of the Corporation, (g) any proportionate interest in stock of the Corporation or Derivatives held, directly or indirectly, by a general or limited partnership in which the Proponent or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (h) any performance-related fees (other than an asset-based fee) that the Proponent or Stockholder Associated Person is entitled to based on any increase or decrease in the value of stock of the Corporation or Derivatives thereof, if any, as of the date of such notice. The information specified in Section 2.2(D)(i) to (iii) is referred to herein as “Stockholder Information”;

 

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(iv)      Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Proponent’s or Stockholder Associated Person’s immediate family sharing the same household;

 

(v)       a representation to the Corporation that each Proponent is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such Stockholder Business;

 

(vi)      a brief description of the Stockholder Business desired to be brought before the annual meeting, the text of the proposal (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend the By-laws, the language of the proposed amendment) and the reasons for conducting such Stockholder Business at the meeting;

 

(vii)     any material interest of each Proponent and any Stockholder Associated Person in such Stockholder Business;

 

(viii)     a representation to the Corporation as to whether the Proponent intends (a) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt such Stockholder Business or (b) otherwise to solicit proxies from the Stockholders in support of such Stockholder Business;

 

(ix)       all other information that would be required to be filed with the SEC if the Proponents or Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and

 

(x)        a representation and covenant for the benefit of the Corporation that the Proponents shall provide any other information reasonably requested by the Corporation.

 

(E)      The Proponents shall also provide any other information reasonably requested by the Corporation within ten business days after such request.

 

(F)      In addition, the Proponent shall further update and supplement the information provided to the Corporation in the Notice of Business or upon the Corporation’s request pursuant to Section 2.2(E) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is the later of ten business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary, by no later than five business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven business days before the date for the meeting (in the case of the update and supplement required to be made as of ten business days before the meeting or any adjournment or postponement thereof).

 

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(G)      The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.2, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

 

(H)      If the Proponent (or a qualified representative of the Proponent) does not appear at the meeting of Stockholders to present the Stockholder Business, such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.2, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.

 

(I)      “Public Disclosure” of any date or other information means disclosure thereof by a press release reported by the Dow Jones News Services, Associated Press or comparable U.S. national news service or in a document publicly filed by the Corporation with, or furnished by the Corporation to, the SEC pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

 

(J)      “Stockholder Associated Person” means, with respect to any Stockholder, (i) any other beneficial owner of stock of the Corporation that is owned by such Stockholder and (ii) any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Stockholder or such beneficial owner.

 

(K)      The notice requirements of this Section 2.2 shall be deemed satisfied with respect to Stockholder proposals that have been properly brought under Rule 14a-8 of the Exchange Act and that are included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. Further, nothing in this Section 2.2 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.

 

2.3            Special Meetings. Subject to any special rights of the holders of any series of preferred stock of the Corporation, and to the requirements of applicable law, special meetings of the stockholders of the Corporation may be called only (i) by or at the direction of the Board pursuant to a written resolution adopted by a majority of the total number of Directors that the Corporation would have it there were no vacancies or (ii) by or at the direction of the Chairman, the Vice Chairman or the Chief Executive officer. In addition, prior to a Triggering Event, special meeting of stockholders of the Corporation may be called by the Secretary of the Corporation at the request of the holders of a majority of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class. Notice of every special meeting of the Stockholders shall state the purpose or purposes of such meeting. Except as otherwise required by law, the business conducted at a special meeting of Stockholders shall be limited exclusively to the business set forth in the Corporation’s notice of meeting, and the individual or group calling such meeting shall have exclusive authority to determine the business included in such notice.

 

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2.4            Record Date.

 

(A)      For the purpose of determining the Stockholders entitled to notice of any meeting of Stockholders or any adjournment thereof, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date (the “Notice Record Date”), which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 or less than ten days before the date of such meeting. The Notice Record Date shall also be the record date for determining the Stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such Notice Record Date, that a later date on or before the date of the meeting shall be the date for making such determination (the “Voting Record Date”). For the purposes of determining the Stockholders entitled to express consent to corporate action in writing without a meeting, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than ten days after the date on which the record date was fixed by the Board. For the purposes of determining the Stockholders entitled to (i) receive payment of any dividend or other distribution or allotment of any rights, (ii) exercise any rights in respect of any change, conversion or exchange of stock or (iii) take any other lawful action, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 days prior to such action.

 

(B)      If no such record date is fixed:

 

(i)      the record date for determining Stockholders entitled to notice of and to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;

 

(ii)      the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board takes such prior action; and

 

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(iii)      when a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof, unless the Board fixes a new Voting Record Date for the adjourned meeting, in which case the Board shall also fix such Voting Record Date or a date earlier than such date as the new Notice Record Date for the adjourned meeting.

 

2.5            Notice of Meetings of Stockholders. Whenever, under the provisions of applicable law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the Voting Record Date, if such date is different from the Notice Record Date, and, in the case of a special meeting, the purposes for which the meeting is called. Unless otherwise provided by these By-laws or applicable law, notice of any meeting shall be given, not less than ten nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting as of the Notice Record Date. If mailed, such notice shall be deemed to be given when deposited in the U.S. mail, with postage prepaid, and directed to the Stockholder at his or her address as it appears on the records of the Corporation. An affidavit of the Secretary, an Assistant Secretary or the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. Any business that might have been transacted at the meeting as originally called may be transacted at the adjourned meeting. If, however, the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting. If, after the adjournment, a new Voting Record Date is fixed for the adjourned meeting, the Board shall fix a new Notice Record Date in accordance with Section 2.4(B)(iii) hereof and shall give notice of such adjourned meeting to each Stockholder entitled to vote at such meeting as of the Notice Record Date.

 

2.6            Waivers of Notice. Whenever the giving of any notice to Stockholders is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the person entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Stockholder at a meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purposes of, any regular or special meeting of the Stockholders need be specified in any waiver of notice.

 

2.7            List of Stockholders. The Secretary shall prepare and make, at least ten days before every meeting of Stockholders, a complete, alphabetical list of the Stockholders entitled to vote at the meeting, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list may be examined by any Stockholder, the Stockholder’s agent, or attorney, at the Stockholder’s expense, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation or on a reasonably accessible electronic network as provided by applicable law. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any Stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection as provided by applicable law. Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the list of Stockholders or to vote in person or by proxy at any meeting of Stockholders.

 

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2.8            Quorum of Stockholders; Adjournment. Except as otherwise provided by these By-laws, at each meeting of Stockholders, the presence in person or by proxy of the holders of a majority of the voting power of all outstanding shares of stock entitled to vote at the meeting of Stockholders shall constitute a quorum for the transaction of any business at such meeting, except that, where a separate vote by a class or series of classes of shares is required, a quorum shall consist of no less than a majority of the voting power of all outstanding shares of stock of such class or series of classes, as applicable. In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, may adjourn such meeting to another time and place. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of Directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

2.9            Voting; Proxies. Unless otherwise provided by the General Corporation Law or in the Certificate of Incorporation, every Stockholder entitled to vote at any meeting of Stockholders shall be entitled to one vote for each share of stock held by such Stockholder which has voting power upon the matter in question. At any meeting of Stockholders, all matters other than the election of Directors, except as otherwise provided by the Certificate of Incorporation, these By-laws or any applicable law, shall be decided by the affirmative vote of a majority in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. At all meetings of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect Directors. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such Stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy expressly provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.

 

2.10          Voting Procedures and Inspectors at Meetings of Stockholders. The Board, in advance of any meeting of Stockholders, shall appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall (A) ascertain the number of shares outstanding and the voting power of each, (B) determine the shares represented at the meeting and the validity of proxies and ballots, (C) count all votes and ballots, (D) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (E) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies, votes or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by a Stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.

 

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2.11          Conduct of Meetings; Adjournment. The Board may adopt such rules and procedures for the conduct of Stockholder meetings as it deems appropriate. At each meeting of Stockholders, the Chairman or, in the absence of the Chairman, the Vice Chairman or, in the absence of or if there is no Vice Chairman, the Chief Executive Officer or, in the absence of the Chairman, the Vice Chairman and the Chief Executive Officer, the President or, if there is no Chairman, Vice Chairman, Chief Executive Officer or President or if they are absent, a Vice President and, in case more than one Vice President shall be present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President present), shall preside over the meeting. Except to the extent inconsistent with the rules and procedures as adopted by the Board, the person presiding over the meeting of Stockholders shall have the right and authority to convene, adjourn and reconvene the meeting from time to time, to prescribe such additional rules and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting. Such rules and procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, (A) the establishment of an agenda or order of business for the meeting, (B) rules and procedures for maintaining order at the meeting and the safety of those present, (C) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine, (D) restrictions on entry to the meeting after the time fixed for the commencement thereof and (E) limitations on the time allotted to questions or comments by participants. The person presiding over any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, may determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, he or she shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary or, in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. If none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board and, if the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.

 

2.12          Order of Business. The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting.

 

2.13          Written Consent of Stockholders Without a Meeting. If, and only if, the Certificate of Incorporation expressly permits action to be taken at any annual or special meeting of Stockholders without a meeting, without prior notice and without a vote, then a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered mail, return receipt requested) to the Corporation by delivery to its registered office in the State of Delaware, the Office of the Corporation or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded. Every written consent shall bear the date of signature of each Stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.13, written consents signed by a sufficient number of holders to take action are delivered to the Corporation as aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those Stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.

 

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ARTICLE 3

 

DIRECTORS

 

3.1            General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these By-laws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.

 

3.2            Number; Term of Office. The Board shall consist of three to 20 members, with the then-authorized number being fixed from time to time by the Board. As of the date of these By-laws, the number of Directors shall be six. Subject to obtaining any required stockholder votes or consents under the Investor Rights Agreement (as long as such agreement is in effect), each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal. During any period when the holders of any series of preferred stock of the Corporation have the right to elect one or more Directors in accordance with the Board’s designation for such series of preferred stock set forth in the Certificate of Incorporation, upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Directors to which any series of preferred stock of the Corporation is then entitled to elect, and the holders of the related series of preferred stock shall be entitled to elect such Directors pursuant to the provisions of the Board’s designation for such series of preferred stock, and (ii) each such Director elected by holders of preferred stock shall serve until such Director’s successor shall have been duly elected and qualified, or until such Director’s right to hold such office terminates pursuant to such provision, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of preferred stock of the Corporation having such right to elect Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Directors elected by the holders of such preferred stock, or elected to fill any vacancies resulting from death, resignation, disqualification or removal of such Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

 

3.3            Nominations of Directors.

 

(A)      Subject to Section 3.3(K) and obtaining any required stockholder votes or consents under the Investor Rights Agreement and except as otherwise provided by the Investor Rights Agreement, only persons who are nominated in accordance with the procedures set forth in this Section 3.3 are eligible for election as Directors.

 

(B)      Nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (a) was a Stockholder of record of the Corporation when the notice required by this Section 3.3 is delivered to the Secretary and at the time of the meeting, (b) is entitled to vote for the election of Directors at the meeting and (c) complies with the notice and other provisions of this Section 3.3. Subject to Section 3.3(K) and obtaining any required stockholder votes or consents under the Investor Rights Agreement, Section 3.3(B)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.3(B)(ii) are referred to as “Stockholder Nominees.” A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder.”

 

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(C)      Subject to Section 3.3(K) and obtaining any required stockholder votes or consents under the Investor Rights Agreement, all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary, by the following dates:

 

(i)      in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than 120 days and no later than 90 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided, however, that if (a) the annual meeting of Stockholders is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders, (b) no annual meeting was held during the prior year or (c) in the case of the Corporation’s first annual meeting of Stockholders as a corporation with a class of equity security registered under the Exchange Act, the notice by the Stockholder to be timely must be received (1) no earlier than 120 days before such annual meeting and (2) no later than the later of 90 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure; and

 

(ii)      in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than 120 days before and no later than the later of 90 days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.

 

(D)      Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least 100 days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.

 

(E)      In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination.

 

(F)      The Notice of Nomination shall set forth:

 

(i)      the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person;

 

(ii)      a representation to the Corporation that each Nominating Stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;

 

(iii)     all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.4;

 

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(iv)      a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith were the “registrant” for purposes of such rule and the Stockholder Nominee were a director or executive of such registrant;

 

(v)      Stockholder Information with respect to any stock or other interests of the Corporation held by members of the Nominating Stockholder’s or its Stockholder Associated Person’s immediate family sharing the same household;

 

(vi)     a representation to the Corporation as to whether each Nominating Stockholder intends (a) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination or (b) otherwise to solicit proxies from Stockholders in support of such nomination;

 

(vii)    all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Exchange Act; and

 

(viii)   a representation and covenant for the benefit of the Corporation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.

 

(G)      The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten business days after such request.

 

(H)      In addition, the Nominating Stockholders shall further update and supplement the information provided to the Corporation in the Notice of Nomination or upon the Corporation’s request pursuant to Section 3.3(G) as needed, so that such information shall be true and correct as of the record date for the meeting and as of the date that is ten business days before the meeting or any adjournment or postponement thereof. Such update and supplement must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary, by no later than five business days after the record date for the meeting (in the case of the update and supplement required to be made as of the record date), and not later than seven business days before the date for the meeting (in the case of the update and supplement required to be made as of ten business days before the meeting or any adjournment or postponement thereof).

 

(I)      The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that the nomination was not made in accordance with the procedures set forth in this Section 3.3, and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.

 

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(J)      If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.3, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.

 

(K)      Nothing in this Section 3.3 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.

 

3.4            Nominee and Director Qualifications. Unless the Board determines otherwise or the Investor Rights Agreement provides otherwise (as long as such agreement is in effect), to be eligible to be a nominee for election or reelection as a Director, a person must deliver (in accordance with the time periods prescribed for delivery of notice by the Board) to the Secretary at the Office of the Corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person (A) is not and will not become a party to (i) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person will act or vote as a Director on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (ii) any Voting Commitment that could limit or interfere with such person’s ability to comply with such person’s fiduciary duties as a Director under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein, (C) beneficially owns, or agrees to purchase within 90 days if elected as a Director, not less than 1,000 shares (including options to purchase shares, restricted shares and similar interests) of Class A common stock, par value $0.01 per share, of the Corporation (the “Qualifying Shares”) (subject to adjustment for any stock splits or stock dividends occurring after the date of such representation or agreement), will not dispose of such minimum number of shares so long as such person is a Director and has disclosed therein whether all or any portion of the Qualifying Shares were purchased with any financial assistance provided by any other person and whether any other person has any interest in the Qualifying Shares and (D) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading and other policies and guidelines of the Corporation that are applicable to Directors; provided, however, that notwithstanding anything in these By-laws to the contrary, unless the Investor Rights Agreement provides otherwise (as long as such agreement is in effect), the provisions of this Section 3.4 shall not apply to any Director nominated by Holdings (as such term is defined in the Investors Rights Agreement) pursuant to the terms of the Investor Rights Agreement.

 

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3.5            Resignation. Any Director may resign at any time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective.

 

3.6            Vacancies and Newly Created Directorships. Subject to the rights of the holders of any one or more series of preferred stock of the Corporation then outstanding and subject to obtaining any required stockholder votes or consents under the Investor Rights Agreement, newly created directorships resulting from any increase in the authorized number of Directors or any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board or by the affirmative vote of the holders of a majority of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class. Any Director so chosen shall hold office until the next election of the class for which such Director shall have been chosen and until his or her successor shall be duly elected and qualified or until such Director’s earlier death, disqualification, resignation or removal. No decrease in the number of Directors shall shorten the term of any Director then in office.

 

3.7            Removal of Directors. Except for Directors elected by the holders of a series of preferred stock of the Corporation, and subject to obtaining any required stockholder votes or consents under the Investor Rights Agreement, any Director or the entire Board may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors, voting together as a single class.

 

3.8            Compensation. Each Director, in consideration of his or her service as such, shall be entitled to receive from the Corporation such amount per annum or such fees (payable in cash or equity) for attendance at Directors’ meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in connection with the performance of his or her duties. Each Director who shall serve as a member of any committee of Directors in consideration of serving as such shall be entitled to such additional amount per annum or such fees for attendance at committee meetings, or both, as the Board may from time to time determine, together with reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in the performance of his or her duties. Nothing contained in this Section 3.8 shall preclude any Director from serving the Corporation or its subsidiaries in any other capacity and receiving proper compensation therefor.

 

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3.9            Regular Meetings. Regular meetings of the Board may be held without notice at such times and at such places within or without the State of Delaware as may be determined from time to time by the Board or its Chairman.

 

3.10          Special Meetings. Special meetings of the Board may be held at such times and at such places within or without the State of Delaware as may be determined by the Chairman, the Vice Chairman or the Chief Executive Officer on at least 24 hours’ notice to each Director given by one of the means specified in Section 3.13 hereof other than by mail, or on at least three days’ notice if given by mail. Special meetings shall be called by the Chairman, the Vice Chairman, the Chief Executive Officer, the President or the Secretary in like manner and on like notice on the written request of any two or more Directors.

 

3.11          Telephone Meetings. Board or Board committee meetings may be held by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation by a Director in a meeting pursuant to this Section 3.11 shall constitute presence in person at such meeting.

 

3.12          Adjourned Meetings. A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn and reconvene such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.13 hereof other than by mail, or at least three days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.

 

3.13          Notice Procedure. Subject to Sections 3.10 and 3.14 hereof, whenever notice is required to be given to any Director by applicable law, the Certificate of Incorporation or these By-laws, such notice shall be deemed given effectively if given in person or by telephone, mail or electronic mail addressed to such Director at such Director’s address or email address, as applicable, as it appears on the records of the Corporation, facsimile or by other means of electronic transmission.

 

3.14          Waiver of Notice. Whenever the giving of any notice to Directors is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, in writing signed by the Director entitled to the notice, whether before or after such notice is required, shall be deemed equivalent to notice. Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special Board or committee meeting need be specified in any waiver of notice.

 

3.15          Organization. At each meeting of the Board, the Chairman or, in the absence of the Chairman, the Vice Chairman or, in the absence of or if there is no Vice Chairman, the Chief Executive Officer or, in the absence of the Chairman, the Vice Chairman and the Chief Executive Officer, another Director selected by the Board shall preside. The Secretary shall act as secretary at each meeting of the Board. If the Secretary is absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.

 

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3.16          Quorum of Directors. The presence in person of a majority of the total members of the Board shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board.

 

3.17          Action by Majority Vote. Except as otherwise expressly required by these By-laws, or the Certificate of Incorporation, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board; provided, that to the extent one or more Directors recuses himself or herself from an act, the act of a majority of the remaining Directors then in office shall be the act of the Board.

 

3.18          Action Without Meeting. Unless otherwise restricted by these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee.

 

ARTICLE 4

 

COMMITTEES OF THE BOARD

 

The Board may, by resolution, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may, by resolution, adopt charters for one or more of such committees. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law, and to the extent provided in the resolution of the Board designating such committee or the charter for such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it to the extent so authorized by the Board. The Board may remove any Director from any committee at any time, with or without cause. Unless the Board provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board provides otherwise, each committee designated by the Board may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article 3.

 

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ARTICLE 5

 

OFFICERS

 

5.1              Positions; Election. The officers of the Corporation shall be a Chairman, Vice Chairman, Executive Chairman, Chief Executive Officer, President, Vice Presidents, Secretary, Treasurer and any other officers as the Board may elect from time to time, who shall exercise such powers and perform such duties as shall be determined by the Board from time to time. Any number of offices may be held by the same person.

 

5.2              Term of Office. Each officer of the Corporation shall hold office until such officer’s successor is elected and qualifies or until such officer’s earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer may be removed at any time with or without cause by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board. The election or appointment of an officer shall not of itself create contract rights.

 

5.3              Chairman. The Chairman shall preside at all meetings of the Stockholders and at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the Board. In addition to the responsibilities, powers and duties of the Chairman, an Executive Chairman (if there be one) shall exercise such powers and perform such other duties as shall be determined from time to time by the Board and may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed.

 

5.4              Vice Chairman. The Vice Chairman (if there be one) shall preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman is not present and shall exercise such powers and perform such other duties as shall be determined from time to time by the Board.

 

5.5              Chief Executive Officer. The Chief Executive Officer shall have general supervision over, and direction of, the business and affairs of the Corporation, subject, however, to the control of the Board and of any duly authorized committee of the Board. The Chief Executive Officer shall preside at all meetings of the Stockholders and at all meetings of the Board at which the Chairman and the Vice Chairman (if there be one) are not present. The Chief Executive Officer may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed and, in general, the Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer of a corporation and such other duties as may be determined from time to time by the Board.

 

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5.6              President. The President shall have duties incident to the office of President, and any other duties as may from time to time be assigned to the President by the Chief Executive Officer (if the President and Chief Executive Officer are not the same person) or the Board and subject to the control of the Chief Executive Officer (if the President and Chief Executive Officer are not the same person) and the Board in each case. The President shall preside at all meetings of the Stockholders at which the Chairman, the Vice Chairman (if there be one) and the Chief Executive Officer are not present. The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed.

 

5.7              Vice Presidents. Vice Presidents shall have the duties incident to the office of Vice President and any other duties that may from time to time be assigned to the Vice President by the Chief Executive Officer, the President or the Board. A Vice President shall preside at all meetings of the Stockholders at which the Chairman, the Vice Chairman (if there be one), the Chief Executive Officer and the President are not present. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed.

 

5.8              Secretary. The Secretary shall attend all meetings of the Board and of the Stockholders, record all the proceedings of the meetings of the Board and of the Stockholders in a book to be kept for that purpose and perform like duties for committees of the Board, when required. The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the Stockholders and perform such other duties as may be prescribed by the Board, the Chief Executive Officer or the President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary or an Assistant Secretary shall have authority to affix the same on any instrument that may require it, and when so affixed, the seal may be attested by the signature of the Secretary or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the same by such officer’s signature. The Secretary or an Assistant Secretary may also attest all instruments signed by the Executive Chairman, Chief Executive Officer, President or any Vice President. The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general, perform all duties incident to the office of secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by the Board, the Chief Executive Officer or the President.

 

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5.9              Treasurer. The Treasurer shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation, receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board, against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed, regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation, have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same, render to the Chief Executive Officer, the President or the Board, whenever the Chief Executive Officer, the President or the Board shall require the Treasurer so to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation, disburse the funds of the Corporation as ordered by the Board and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by the Board, the Chief Executive Officer or the President.

 

5.10          Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by the Board, the Chief Executive Officer or the President.

 

5.11          Chairman and Vice Chairman Titles. If the Board so elects, it may use the title “Chair,” “Chairperson” or “Chairwoman” instead of “Chairman,” and references to the “Chairman” herein shall be deemed to be references to such “Chair,” “Chairperson” or “Chairwoman.” If the Board so elects, it may also use the title “Vice-Chair,” “Vice-Chairperson” or “Vice-Chairwoman” instead of “Vice-Chairman,” and references to such “Vice-Chairman” herein shall be deemed to be references to such “Vice-Chair,” “Vice-Chairperson” or “Vice-Chairwoman.”

 

ARTICLE 6

 

GENERAL PROVISIONS

 

6.1              Certificates Representing Shares. The shares of stock of the Corporation shall be represented by certificates or all of such shares shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock, or a combination of both. If shares are represented by certificates (if any) such certificates shall be in the form approved by the Board. The certificates representing shares of stock of each class shall be signed by, or in the name of, the Corporation by the Chairman, the Chief Executive Officer, the President or any Vice President, and by the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all such signatures may be facsimiles. Although any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were still such at the date of its issue.

 

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6.2              Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.

 

6.3              Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

6.4              Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be maintained on any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

 

6.5              Seal. The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

6.6              Fiscal Year. The fiscal year of the Corporation shall be determined by the Board.

 

6.7              Amendments. These By-laws may be altered, amended or repealed in accordance with the Certificate of Incorporation and the General Corporation Law.

 

6.8              Conflict with Applicable Law or Certificate of Incorporation. These By-laws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these By-laws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.

 

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Exhibit 10.1

 

 

 

 

 

REORGANIZATION AGREEMENT

 




Dated as of July 29, 2015

 

 

 

 

 

 
 

TABLE OF CONTENTS

 

Pages

 

Article I DEFINITIONS 1
1.1    Certain Defined Terms 1
1.2    Terms Defined Elsewhere in this Agreement 3
1.3    Other Definitional and Interpretative Provisions 3
Article II THE REORGANIZATION 4
2.1    Reorganization Transactions 4
2.2    Other Transactions 6
2.3    Consent to Transactions 7
2.4    No Liabilities in Event of Termination; Certain Covenants 7
Article III REPRESENTATIONS AND WARRANTIES 8
3.1    Representations and Warranties 8
Article IV MISCELLANEOUS 9
4.1   Amendments and Waivers 9
4.2   Successors and Assigns 9
4.3    Notices 9
4.4   Further Assurances 10
4.5    Entire Agreement 10
4.6    Governing Law 11
4.7    Jurisdiction 11
4.8    WAIVER OF JURY TRIAL 11
4.9    Severability 11
4.10    Enforcement 11
4.11    Counterparts; Facsimile Signatures 11
4.12    Expenses 11

 

Schedules 

Schedule 1        -           Contributed Assets 

Schedule 2        -           Employee Benefit Plans of vTvx I and vTvx II

 

i
 

REORGANIZATION AGREEMENT

 

THIS REORGANIZATION AGREEMENT (this “Agreement”), dated as of July 29, 2015, by and among vTv Therapeutics Inc., a Delaware corporation (“Pubco”), vTv Therapeutics LLC, a Delaware limited liability company (the “Company”), vTvx Holdings I LLC, a Delaware limited liability company (“vTvx I”), vTvx Holdings II LLC, a Delaware limited liability company (“vTvx II”), and vTv Therapeutics Holdings LLC, a Delaware limited liability company (“Holdings”).

 

RECITALS

 

WHEREAS, the Board of Directors of Pubco (the “Board”) has determined to effect an underwritten initial public offering (the “IPO”) of Pubco’s Class A Common Stock (as defined below);

 

WHEREAS, the parties hereto desire to effect the Transactions (as defined below), including the Reorganization Transactions (as defined below), in contemplation of the IPO; and

 

WHEREAS, in connection with the IPO, the applicable parties hereto intend to enter into the Transactions.

 

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the parties hereto hereby agree as follows:

 

Article I

 

DEFINITIONS

 

1.1              Certain Defined Terms. As used herein, the following terms shall have the following meanings:

 

Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by applicable law to close.

 

Class A Common Stock” shall mean Class A Common Stock, par value $0.01 per share, of Pubco, having the rights set forth in the Amended and Restated Certificate of Incorporation.

 

Class B Common Stock” shall mean Class B Common Stock, par value $0.01 per share, of Pubco, having the rights set forth in the Amended and Restated Certificate of Incorporation.

 

Class M Common Unit” shall mean the Class M Common Unit of the Company, having the rights set forth in the Amended and Restated Company LLC Agreement.

 

 
 

Effective Time” means the date and time on which the Registration Statement becomes effective.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Existing Certificate of Incorporation” means the Certificate of Incorporation of Pubco, as filed with the Secretary of State of the State of Delaware on April 2, 2015.

 

Existing Company LLC Agreement” means the Operating Agreement of the Company, dated as of April 15, 2015, by Holdings as the sole member.

 

IPO Closing” means the initial closing of the sale of the Class A Common Stock in the IPO.

 

IPO Price Per Share” means the per share public offering price for the Class A Common Stock.

 

Nonvoting Common Units” shall mean Nonvoting Common Units of the Company, having the rights set forth in the Amended and Restated Company LLC Agreement.

 

Person” means any individual, firm, corporation, partnership, limited liability company, trust, estate, joint venture, governmental authority or other entity.

 

Pricing” means such date and time as the Board or the pricing committee thereof determines to price the IPO.

 

Registration Statement” means the registration statement on Form S-1 (File No. 333-204951) filed by Pubco under the Securities Act with the SEC to register the IPO.

 

Reorganization Documents” means the Amended and Restated Certificate of Incorporation, the Amended and Restated By-laws, the Amended and Restated Company LLC Agreement, the Exchange Agreement, the Investor Rights Agreement, the Tax Receivable Agreement, the 2015 Omnibus Incentive Plan and all other agreements and documents entered into in connection with the Transactions.

 

SEC” means the Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933, as amended.

 

2
 

1.2              Terms Defined Elsewhere in this Agreement(a). Each of the following terms is defined in the Section set forth opposite such term:

 

Term Section
2015 Omnibus Incentive Plan 2.2(d)
Agreement Preamble
Amended and Restated Certificate of Incorporation 2.1(a)
Amended and Restated Company LLC Agreement 2.1(c)
Board Recitals
Company Preamble
Contributed Assets 2.1(d)(i)
e-mail 4.3
Employee Transfer 2.1(d)(ii)
Exchange Agreement 2.2(a)
Holdings Preamble
Holdings Membership Interests 2.1(d)(iii)
Investor Rights Agreement 2.2(b)
IPO Recitals
Proceeds 2.2(f)
Pubco Preamble
Reorganization Transaction 2.1
Reorganization Transactions 2.1
Tax Receivable Agreement 2.2(c)
Transaction 2.2
Transactions 2.2
vTvx I Preamble
vTvx II Preamble

 

1.3              Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, and Schedules are to Articles, Sections, and Schedules of this Agreement unless otherwise specified. All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. The Reorganization Documents referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.

 

3
 

Article II

 

THE REORGANIZATION

 

2.1              Reorganization Transactions. Subject to the terms and conditions hereinafter set forth, and on the basis of and in reliance upon the representations, warranties, covenants and agreements set forth herein, the parties hereto shall take the actions described in this Section 2.1 (each, a “Reorganization Transaction” and, collectively, the “Reorganization Transactions”), which shall be effective as of immediately after the Effective Time:

 

(a)                Filing of Amended and Restated Certificate of Incorporation. Pubco shall adopt and file with the Secretary of State of the State of Delaware an amended and restated certificate of incorporation of Pubco, substantially in the form filed as Exhibit 3.1 to the Registration Statement (the “Amended and Restated Certificate of Incorporation”).

 

(b)               Adoption of Amended and Restated By-laws. The Board shall adopt amended and restated by-laws of Pubco, substantially in the form filed as Exhibit 3.2 to the Registration Statement (the “Amended and Restated By-laws”).

 

(c)                Adoption of Amended and Restated Company LLC Agreement. The Company shall adopt the amended and restated limited liability company agreement of the Company, substantially in the form filed as Exhibit 10.3 to the Registration Statement (the “Amended and Restated Company LLC Agreement”).

 

(d)               Contribution of Contributed Assets and Employee Transfer. Immediately following the Reorganization Transactions described in Sections 2.1(a) through (c):

 

(i)                 vTvx I and vTvx II hereby contribute, assign, transfer and convey to Holdings all of the respective right, title, interest and obligations of vTvx I and vTvx II in their respective tangible and intangible assets set forth on Schedule 1 hereof, free and clear of all liens (other than those liens to be released pursuant to Section 2.2(e)), including all goodwill related to such assets and all goodwill of the businesses of vTvx I and vTvx II (such contributed assets, the “Contributed Assets”).

 

(ii)               vTvx I and vTvx II hereby assign and transfer to Holdings the employment of all employees of vTvx I and vTvx II and (A) all employment-related rights and obligations, including each employment agreement between vTvx I or vTvx II, on the one hand, and each employee thereof, on the other hand, (B) noncompetition, nonsolicitation and nondisclosure agreements with respect to the employees and former employees of vTvx I and vTvx II and (C) all employee benefit plans set forth on Schedule 1 hereof (collectively, the “Employee Transfer”).

 

4
 

(iii)             In consideration for the Contributed Assets and the Employee Transfer, Holdings hereby issues 95 of its membership interests (“Holdings Membership Interests”) to vTvx I and 5 Holdings Membership Interests to vTvx II.

 

(iv)             Holdings hereby acknowledges its right to receive the Contributed Assets from vTvx I and vTvx II and, for administrative convenience, hereby irrevocably directs vTvx I and vTvx II to contribute, assign, transfer and convey the Contributed Assets directly to the Company for and on behalf of Holdings in lieu of the Contributed Assets being contributed, assigned, transferred and conveyed to Holdings.

 

(v)               Holdings acknowledges its rights to receive the Employee Transfer from vTvx I and vTvx II and, for administrative convenience, hereby irrevocably directs vTvx I and vTvx II to contribute, assign, transfer and convey the Employee Transfer directly to the Company for and on behalf of Holdings in lieu of the Employee Transfer being contributed, assigned, transferred and conveyed to Holdings.  vTvx I, vTvx II and the Company acknowledge and agree that if the Company determines that in connection with the Employee Transfer, a transition service period not to exceed four months is necessary or desirable, then such employees shall be permitted to continue their participation in the employee benefit plans of vTvx I and vTvx II as set forth on Schedule 2 during such period and the Company, vTvx I and vTvx II will enter into a customary transition services agreement.

 

(vi)             The Company hereby accepts and acquires the Contributed Assets and the Employee Transfer and all of the respective right, title, interest and obligations of vTvx I and vTvx II in the Contributed Assets and the Employee Transfer. In consideration for its receipt of the Contributed Assets and the Employee Transfer, the Company hereby: (A) issues (x) to Holdings 25,000,000 Nonvoting Common Units and (B) to Pubco, a wholly owned subsidiary of Holdings, one Class M Common Unit; (B) assumes all liabilities of vTvx I and vTvx II with respect to the Contributed Assets and the Employee Transfer; (C) covenants and agrees to discharge, perform and comply with and to be bound by all the terms, conditions, provisions, obligations, covenants and duties of vTvx I and vTvx II under all contracts and agreements included in the Contributed Assets and the Employee Transfer as if the Company were an original party thereto; and (D) agrees to indemnify and hold harmless vTvx I and vTvx II for any and all liabilities of vTvx I or vTvx II, known or unknown, that currently exist or may arise in the future with respect to the Contributed Assets and the Employee Transfer.

 

5
 

(e)                Issuance of Class B Common Stock to Holdings. In connection with the filing of the Amended and Restated Certificate of Incorporation, Pubco hereby issues to Holdings 25,000,000 shares of Class B Common Stock and all of the issued and outstanding common stock of Pubco held by MacAndrews & Forbes Incorporated pursuant to the Existing Certificate of Incorporation shall be cancelled.

 

2.2              Other Transactions. In connection with the Reorganization Transactions set forth above, the parties hereto shall, in connection therewith, take the following actions described in this Section 2.2 (together with the Reorganization Transactions, the “Transactions” and each a “Transaction”):

 

(a)                Exchange Agreement. In connection with the issuance of Class B Common Stock and Nonvoting Common Units to Holdings as provided in Section 2.1, Holdings, the Company and Pubco hereby enter into that certain Exchange Agreement, substantially in the form filed as Exhibit 10.4 to the Registration Statement (the “Exchange Agreement”).

 

(b)               Investor Rights Agreement. In connection with the issuance of Class B Common Stock and Nonvoting Common Units to Holdings as provided in Section 2.1, Holdings, Pubco, and the Company shall enter into an Investor Rights Agreement, substantially in the form filed as Exhibit 10.2 to the Registration Statement (the “Investor Rights Agreement”).

 

(c)                Tax Receivable Agreement. In connection with the issuance of Class B Common Stock and Nonvoting Common Units to Holdings as provided in Section 2.1, Pubco and Holdings shall enter into a Tax Receivable Agreement, substantially in the form filed as Exhibit 10.5 to the Registration Statement (the “Tax Receivable Agreement”).

 

(d)               2015 Omnibus Incentive Plan. Pubco hereby enters into the 2015 Omnibus Equity Incentive Plan, substantially in the form filed as Exhibit 10.11 to the Registration Statement (the “2015 Omnibus Incentive Plan”).

 

(e)                Intellectual Property Assignment Agreements and Lien Releases. Following the date hereof, vTvx I, vTvx II and the Company shall take all such steps and actions, and provide such cooperation and assistance to each such party and its respective successors, assigns and legal representatives, including the execution and delivery of any affidavits, declarations, oaths, exhibits, assignments, agreements, lien releases, powers of attorney, or other documents, as may be necessary to (i) release and terminate any and all liens and security interests filed against the patents, trademarks, copyrights, domain names (and any registrations or applications thereof) and any other intellectual property that is a Contributed Asset, or (ii) effect, evidence or perfect the transfer and assignment of the patents, trademarks, copyrights, domain names (and any registrations or applications thereof) and any other intellectual property that is a Contributed Asset from each of vTvx I and vTvx II to the Company or any assignee or successor thereto, including by executing and filing short-form intellectual property lien releases and/or short-form intellectual property assignment agreements in the United States Patent and Trademark Office, the United States Copyright Office and any applicable foreign intellectual property or equivalent office.

 

6
 

(f)                Issuance of Nonvoting Common Units to Pubco. Immediately following the IPO Closing, Pubco shall use the net proceeds (after payment of all fees and expenses in connection with the IPO) from the IPO (the “Proceeds”) to purchase from the Company a number of Nonvoting Common Units equal to the number of shares of Class A Common Stock issued in the IPO. Upon receipt of the Proceeds from Pubco, the Company shall issue to Pubco the number of Nonvoting Common Units set forth in the immediately preceding sentence.

 

2.3              Consent to Transactions.

 

(a)                Each of the parties hereto hereby acknowledges, agrees and consents to all of the Transactions. Each of the parties hereto shall take all reasonable action necessary or appropriate in order to effect, or cause to be effected, to the extent within its control, each of the Transactions and the IPO.

 

(b)               The parties hereto shall deliver to each other, as applicable, prior to or at the Effective Time, each of the Reorganization Documents to which it is a party, together with any other documents and instruments necessary or appropriate to be delivered in connection with the Transactions.

 

2.4              No Liabilities in Event of Termination; Certain Covenants.

 

(a)                In the event that the IPO is abandoned or, unless the Board, the Company and Holdings otherwise agree, the IPO Closing has not occurred by September 30, 2015, (a) this Agreement shall automatically terminate and be of no further force or effect except for this Section 2.4 and Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 and 4.12 and (b) there shall be no liability on the part of any of the parties hereto, except that such termination shall not preclude any party from pursuing judicial remedies for damages and/or other relief as a result of the breach by the other parties of any representation, warranty, covenant or agreement contained herein prior to such termination.

 

(b)               In the event that this Agreement is terminated for any reason after the consummation of any Transaction, but prior to the consummation of all of the Transactions, the parties agree, as applicable, to cooperate and work in good faith to execute and deliver such agreements and consents and amend such documents and to effect such transactions or actions as may be necessary to re-establish the rights, preferences and privileges that the parties hereto had prior to the consummation of the Transactions, or any part thereof, including, without limitation, voting any and all securities owned by such party in favor of any amendment to any organizational document and in favor of any transaction or action necessary to re-establish such rights, powers and privileges and causing to be filed all necessary documents with any governmental authority necessary to reestablish such rights, preferences and privileges.

 

7
 

(c)                For the avoidance of doubt, each party hereto acknowledges and agrees that until the consummation of the Transactions: (i) the parties hereto shall not receive or lose any voting, governance or similar rights in connection with this Agreement or the Transactions and (ii) the rights of the parties hereto under the Existing Company LLC Agreement shall not be effected.

 

Article III

 

REPRESENTATIONS AND WARRANTIES

 

3.1              Representations and Warranties. Each party hereto hereby represents and warrants to all of the other parties hereto as follows:

 

(a)                The execution, delivery and performance by such party of this Agreement and of the applicable Reorganization Documents, to the extent a party thereto, has been or prior to the Effective Time will be duly authorized by all necessary action. If such party is not an individual, such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation;

 

(b)               Such party has or prior to the Effective Time will have the requisite power, authority, legal right and, if such party is an individual, legal capacity, to execute and deliver this Agreement and each of the Reorganization Documents, to the extent a party thereto, and to consummate the transactions contemplated hereby and thereby, as the case may be;

 

(c)                This Agreement and each of the Reorganization Documents to which it is a party has been (or when executed will be) duly executed and delivered by such party and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing; and

 

(d)               Neither the execution, delivery and performance by such party of this Agreement and the applicable Reorganization Documents, to the extent a party thereto, nor the consummation by such party of the transactions contemplated hereby, nor compliance by such party with the terms and provisions hereof, will, directly or indirectly (with or without notice or lapse of time or both), (i) if such party is not an individual, contravene or conflict with, or result in a breach or termination of, or constitute a default under (or with notice or lapse of time or both, result in the breach or termination of or constitute a default under) the organizational documents of such party, (ii) constitute a violation by such party of any existing requirement of law applicable to such party or any of its properties, rights or assets or (iii) require the consent or approval of any Person, except, in the case of clauses (ii) and (iii), as would not reasonably be expected to result in, individually or in the aggregate, a material adverse effect on the ability of such party to consummate the transactions contemplated by this Agreement.

 

8
 

Article IV

 

MISCELLANEOUS

 

4.1              Amendments and Waivers. This Agreement may be modified, amended or waived only with the written approval of Pubco, the Company, and Holdings; provided, however, that any modification, amendment or waiver that would affect any other party hereto in a manner materially and disproportionately adverse to such party shall be effective against such party so materially and adversely affected only with the prior written consent of such party, such consent not to be unreasonably withheld or delayed. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. Notwithstanding anything to the contrary in this Section 4.1, nothing in this Section 4.1 shall be deemed to contradict the provisions of Section 2.4 hereof.

 

4.2              Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. If and to the extent Holdings is dissolved or liquidated, MacAndrews & Forbes Incorporated and M&F TTP Holdings LLC and each of their respective affiliates (other than Pubco and its subsidiaries) holding shares of Pubco shall be the successors of Holdings, and references to “Holdings” herein shall be references to such successors of Holdings, collectively, and the Pubco shall (and shall cause its subsidiaries to) enter into such amendments and supplements hereto to effectuate the intent of this Section 4.2.

 

4.3              Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission and electronic mail (“e-mail”) transmission, so long as a receipt of such e-mail is requested and not received by automated response). All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt. All such notices, requests and other communications to any party hereunder shall be given to such party as follows:

 

If to Pubco or the Company addressed to it at:

Stephen L. Holcombe, President and CEO 

4170 Mendenhall Oaks Parkway 

High Point, NC 27265 

Facsimile: (336) 841-0310 

E-mail:  sholcombe@vtvtherapeutics.com

 

9
 

With copies (which shall not constitute notice) to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Facsimile No.: (212) 757-3990
Attention:  Angelo Bonvino 

                  Lawrence G. Wee
E-mail:      abonvino@paulweiss.com 

                  lwee@paulweiss.com

 

If to Holdings, vTvx I or vTvx II addressed to it at:

 

c/o MacAndrews & Forbes Incorporated 

35 East 62nd Street 

New York, NY 10065 

Attention: Paul G. Savas 

Facsimile: (212) 572-5695

 

With copies (which shall not constitute notice) to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Facsimile No.: (212) 757-3990
Attention:  Angelo Bonvino 

                  Lawrence G. Wee
E-mail:      abonvino@paulweiss.com 

                  lwee@paulweiss.com

 

4.4              Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

 

4.5              Entire Agreement. Except as otherwise expressly set forth herein, this Agreement, together with the Reorganization Documents, embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, that may have related to the subject matter hereof in any way.

 

10
 

4.6              Governing Law. This Agreement shall be governed in all respects by the laws of the State of Delaware, without regard to the conflicts of law rules of such State that would result in the application of the laws of any other State.

 

4.7              Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of its affiliates or against any party or any of its affiliates) shall be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 4.3 shall be deemed effective service of process on such party.

 

4.8              WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

4.9              Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

4.10           Enforcement. Each party hereto acknowledges that money damages would not be an adequate remedy in the event that any of the covenants or agreements in this Agreement are not performed in accordance with its terms, and it is therefore agreed that in addition to and without limiting any other remedy or right it may have, the non-breaching party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.

 

4.11           Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. This Agreement may be executed by facsimile, e-mail or .pdf format signature(s).

 

4.12           Expenses. Unless otherwise provided in the Reorganization Documents, all costs and expenses incurred in connection with the negotiation and execution of this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such cost or expense.

 

[Signature Page Follows]

 

11
 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

  VTV THERAPEUTICS INC.
       
  By: /s/ Stephen L. Holcombe
    Name: Stephen L. Holcombe
    Title: President and Chief Executive Officer
       
       
  VTV THERAPEUTICS LLC
       
  By: /s/ Stephen L. Holcombe
    Name: Stephen L. Holcombe
    Title: President and Chief Executive Officer
       
       
  VTV THERAPEUTICS HOLDINGS LLC
       
  By: /s/ Stephen L. Holcombe
    Name: Stephen L. Holcombe
    Title: President
       
       
  VTVX HOLDINGS I LLC
       
  By: /s/ Stephen L. Holcombe
    Name: Stephen L. Holcombe
    Title: President
       
       
  VTVX HOLDINGS II LLC
       
  By: /s/ Stephen L. Holcombe
    Name: Stephen L. Holcombe
    Title: President

 

[Signature Page to the Reorganization Agreement]

 

 
 

Schedule 1

 

Contributed Assets

 

(See attached.)

 

 
 

Schedule 1

 

Contributed Assets

 

Assets Transferred from vTvx Holdings I LLC

 

INDs and Similar Assets:

 

Program Compound IND / File # Holder
GK TTP355 CTA 9727-T1006-24C vTvx Holdings I LLC
GK TTP399 IND 78,649 vTvx Holdings I LLC
GK TTP547 IND 101,790 vTvx Holdings I LLC
GLP TTP054 IND 107,972; and CTA 9727-T1006-25C vTvx Holdings I LLC
GLP TTP273 IND 115,859 vTvx Holdings I LLC
RAGE TTP488 IND 68,445; and CTA 9427-T1538-21C vTvx Holdings I LLC
PTP1B TTP814 CTA 9427-T1006-23C vTvx Holdings I LLC
RAGE TTP4000 IND 108,330 vTvx Holdings I LLC
Factor IX TTP889 IND 62,132; and IND 101,833 vTvx Holdings I LLC
AgRP TTP435 IND 103,677; and CTA 9427-T1006-24C vTvx Holdings I LLC

 

Trademarks:

 

Trademark Applicant Application No. Status
TTPREDICT vTvx Holdings I LLC 76/406,330 Registered
TTP TRANSLATIONAL TECHNOLOGY vTvx Holdings I LLC 76/406,371 Registered
TTPSPACE vTvx Holdings I LLC 76/406,372 Registered
TTPOSTGENE vTvx Holdings I LLC 76/406,409 Registered
TTPSCREEN vTvx Holdings I LLC 76/406,412 Registered

 

Copyrights:

 

Author Title Copyright Year Registration Number Owner
Sawafta et al. TTPScreen Software Program 2002 TXU1-052-385 vTvx Holdings I LLC
Sawafta et al. TTPredict Software Program 2002 TXU1-040-852 vTvx Holdings I LLC

 

 
 

 

Domain Names:

 

Owner Domain Name Status
vTvx Holdings I LLC AZELIRAGON.BIZ Registered
vTvx Holdings I LLC AZELIRAGON.COM Registered
vTvx Holdings I LLC AZELIRAGON.INFO Registered
vTvx Holdings I LLC AZELIRAGON.NET Registered
vTvx Holdings I LLC LIVINGSTEADFAST.CO Registered
vTvx Holdings I LLC LIVINGSTEADFAST.COM Registered
vTvx Holdings I LLC LIVINGSTEADFAST.INFO Registered
vTvx Holdings I LLC LIVINGSTEADFAST.NET Registered
vTvx Holdings I LLC LIVINGSTEADFAST.ORG Registered
vTvx Holdings I LLC LIVINGSTEADFAST.US Registered
vTvx Holdings I LLC MYAGATA.COM Registered
vTvx Holdings I LLC MYAGATA.INFO Registered
vTvx Holdings I LLC MYAGATA.NET Registered
vTvx Holdings I LLC MYAGATA.ORG Registered
vTvx Holdings I LLC MYAGATA.US Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.CO Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.COM Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.INFO Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.NET Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.ORG Registered
vTvx Holdings I LLC STEADFASTALZHEIMERS.US Registered
vTvx Holdings I LLC TTPREDICT.XXX Registered
vTvx Holdings I LLC TTPSCREEN.XXX Registered
vTvx Holdings I LLC TTPSPACE.XXX Registered
vTvx Holdings I LLC TTPTRANSLATIONALTECHNOLOGY.XXX Registered
vTvx Holdings I LLC VTV.NET Registered
vTvx Holdings I LLC VTVTHERA.COM Registered
vTvx Holdings I LLC VTVTHERA.NET Registered
vTvx Holdings I LLC VTVTHERAPEUTICS.COM Registered
vTvx Holdings I LLC VTVTHERAPEUTICS.NET Registered
vTvx Holdings I LLC VTVT.NET Registered

 

 
 

 

Patents:

 

File No. Country Owner Application No. Patent No.
2001-04-US-B United States vTvx Holdings I LLC 12/901,133  
2002-04-US-A United States vTvx Holdings I LLC 10/411,568 7,146,384
0378.204-AU Australia vTvx Holdings I LLC 2013262895  
0378.204-BR Brazil vTvx Holdings I LLC BR1120140286221  
0378.204-CA Canada vTvx Holdings I LLC 2872021  
0378.204-CN China vTvx Holdings I LLC 201380024802.X  
0378.204-EA Eurasia vTvx Holdings I LLC 201492109  
0378.204-HK Hong Kong vTvx Holdings I LLC 15103235.2  
0378.204-IL Israel vTvx Holdings I LLC 235484  
0378.204-IN India vTvx Holdings I LLC 9554/DELNP/2014  
0378.204-JP Japan vTvx Holdings I LLC 2015-512779  
0378.204-KR South Korea vTvx Holdings I LLC 10-2014-7035545  
0378.204-MX Mexico vTvx Holdings I LLC MX/a/2014/013105  
0378.204-NZ New Zealand vTvx Holdings I LLC 701802  
0378.204-SG Singapore vTvx Holdings I LLC 11201406987U  
0378.204-US United States vTvx Holdings I LLC 14/071,976  
0378.204-ZA South Africa vTvx Holdings I LLC 2014/07864  
0378.205-EP Europe vTvx Holdings I LLC 13726933.8  
0379.204-PCT PCT Application vTvx Holdings I LLC PCT/US2014/019349  
2010-05-AU-A Australia vTvx Holdings I LLC 2011258460 2011258460
2010-05-BR-A Brazil vTvx Holdings I LLC BR1120120298445  
2010-05-CA-A Canada vTvx Holdings I LLC 2799591  
2010-05-CN-A China vTvx Holdings I LLC 201180025744.3 ZL201180025744.3
2010-05-EA-A Eurasia vTvx Holdings I LLC 201201617  
2010-05-EP-A Europe vTvx Holdings I LLC 11787250.7  
2010-05-GCC-A Gulf Cooperation Council vTvx Holdings I LLC GC 2011-18476  
2010-05-HK-A Hong Kong vTvx Holdings I LLC 13108290.5  
2010-05-IL-A Israel vTvx Holdings I LLC 223137  
2010-05-IN-A India vTvx Holdings I LLC 10658/CHENP/2012  
2010-05-JP-A Japan vTvx Holdings I LLC 2013-512164  
2010-05-KR-A South Korea vTvx Holdings I LLC 10-2012-7033687  
2010-05-MX-A Mexico vTvx Holdings I LLC MX/a/2012/013617  
2010-05-NZ-A New Zealand vTvx Holdings I LLC 603614 603614
2010-05-SG-A Singapore vTvx Holdings I LLC 201208508-0 185660
2010-05-TW-A Taiwan vTvx Holdings I LLC 100118368  
2010-05-US-A United States vTvx Holdings I LLC 13/114,964  
2010-05-ZA-A South Africa vTvx Holdings I LLC 2012/08834  
2013-02-PCT PCT Application vTvx Holdings I LLC PCT/US2014/019363  
 
 
File No. Country Owner Application No. Patent No.
6694.214-US United States vTvx Holdings I LLC 12/895,761 8,148,413
6808.205-BG Bulgaria vTvx Holdings I LLC 5700554.8 1723128
6808.205-CY Cyprus vTvx Holdings I LLC 5700554.8 1723128 (CY1113736)
6808.205-EE Estonia vTvx Holdings I LLC 5700554.8 1723128
6808.205-HK Hong Kong vTvx Holdings I LLC 7107531.4 HK1103074
6808.205-IS Iceland vTvx Holdings I LLC 5700554.8 1723128
6808.205-LT Lithuania vTvx Holdings I LLC 5700554.8 1723128
6808.205-LU Luxembourg vTvx Holdings I LLC 5700554.8 1723128
6808.205-MC Monaco vTvx Holdings I LLC 5700554.8 1723128
6808.205-RO Romania vTvx Holdings I LLC 5700554.8 1723128
6808.205-SI Slovenia vTvx Holdings I LLC 5700554.8 1723128
6808.205-SK Slovakia vTvx Holdings I LLC 5700554.8 1723128 (E13998 T3)
6937.204-MX Mexico vTvx Holdings I LLC MX/a/2007/006420 303022
6937.204-US United States vTvx Holdings I LLC 11/791,200 8,148,412
7112.204-AU Australia vTvx Holdings I LLC 2006268589 2006268589
7112.204-BR Brazil vTvx Holdings I LLC PI0612996-0  
7112.204-CA Canada vTvx Holdings I LLC 2615938 2,615,938
7112.204-CN China vTvx Holdings I LLC 200680033512.1 ZL200680033512.1
7112.204-IL Israel vTvx Holdings I LLC 188244 188244
7112.204-IN India vTvx Holdings I LLC 10025/DELNP/2007  
7112.204-KR South Korea vTvx Holdings I LLC 10-2008-7002805 10-1446973
7112.204-MX Mexico vTvx Holdings I LLC MX/a/2008/000255 305666
7112.204-RU Russia vTvx Holdings I LLC 2007147046 2443691
7112.204-ZA South Africa vTvx Holdings I LLC 2008/00341 2008/00341
7112.205-HK Hong Kong vTvx Holdings I LLC 8112906 HK1121744
7127.204-US United States vTvx Holdings I LLC 12/298,840 8,211,925
7209.204-US United States vTvx Holdings I LLC 11/994,728 7,582,769
7563.204-AU Australia vTvx Holdings I LLC 2008-204530 2008204530
7563.204-CA Canada vTvx Holdings I LLC 2675111  
7563.204-IL Israel vTvx Holdings I LLC 199615  
7563.204-IN India vTvx Holdings I LLC 4486/DELNP/2009  
2008-03-AU-A Australia vTvx Holdings I LLC 2009221722 2009221722
2008-03-BR-A Brazil vTvx Holdings I LLC PI0910282-5  
2008-03-CA-A Canada vTvx Holdings I LLC 2716664  
2008-03-CN-A China vTvx Holdings I LLC 200980108115.X ZL200980108115.X
2008-03-EA-A Eurasia vTvx Holdings I LLC 201071045 18225
2008-03-EP-A Europe vTvx Holdings I LLC 9718287.7  
2008-03-HK-A Hong Kong vTvx Holdings I LLC 11102525.7  
2008-03-IL-A Israel vTvx Holdings I LLC 207570 207570
2008-03-IN-A India vTvx Holdings I LLC 6085/DELNP/2010  
 
 
File No. Country Owner Application No. Patent No.
2008-03-JP-A Japan vTvx Holdings I LLC 2010-549910 5382952
2008-03-KR-A South Korea vTvx Holdings I LLC 10-2010-7020688  
2008-03-ME-A Montenegro vTvx Holdings I LLC P-2010-143 1018
2008-03-MO-A Macau vTvx Holdings I LLC J/001523  
2008-03-MX-A Mexico vTvx Holdings I LLC MX/a/2010/009752 300256
2008-03-NZ-A New Zealand vTvx Holdings I LLC 587343 587343
2008-03-SG-A Singapore vTvx Holdings I LLC 201006155-4 164144 [WO 2009/111700]
2008-03-US-A United States vTvx Holdings I LLC 12/399,504 7,727,983
2008-03-US-B United States vTvx Holdings I LLC 12/759,010 7,790,714
2008-03-US-C United States vTvx Holdings I LLC 12/849,225 7,906,507
2008-03-US-D United States vTvx Holdings I LLC 12/872,580 8,524,708
2008-03-US-E United States vTvx Holdings I LLC 13/956,578 8,703,766
2008-03-US-F United States vTvx Holdings I LLC 14/197,771 8,933,222
2008-03-US-G United States vTvx Holdings I LLC 14/556,837  
2008-03-ZA-A South Africa vTvx Holdings I LLC 2010/06367 2010/06367
2008-06-US-A United States vTvx Holdings I LLC 12/936,434 8,718,994
2009-01-AU-A Australia vTvx Holdings I LLC 2010232750  
2009-01-BR-A Brazil vTvx Holdings I LLC PI1013579-0  
2009-01-CA-A Canada vTvx Holdings I LLC 2757084  
2009-01-CN-A China vTvx Holdings I LLC 201080015264.4 ZL201080015264.4
2009-01-EA-A Eurasia vTvx Holdings I LLC 201171197  
2009-01-EP-A Europe vTvx Holdings I LLC 10779665.8  
2009-01-HK-A Hong Kong vTvx Holdings I LLC 12104614.4  
2009-01-IL-A Israel vTvx Holdings I LLC 214822  
2009-01-IN-A India vTvx Holdings I LLC 6636/DELNP/2011  
2009-01-JP-A Japan vTvx Holdings I LLC 2012-503599  
2009-01-KR-A South Korea vTvx Holdings I LLC 10-2011-7024153  
2009-01-MO-A Macau vTvx Holdings I LLC J/001320 J/1320
2009-01-MX-A Mexico vTvx Holdings I LLC MX/a/2011/010347 320199
2009-01-SG-A Singapore vTvx Holdings I LLC 201106311-2 174205
2009-01-US-A United States vTvx Holdings I LLC 12/825,631 8,383,644
2009-01-US-B United States vTvx Holdings I LLC 13/707,265 8,987,295
2009-01-US-C United States vTvx Holdings I LLC 14/603,556  
2009-01-ZA-A South Africa vTvx Holdings I LLC 2011/06441  
2011-01-US-A United States vTvx Holdings I LLC 13/934,491  
2012-01-AU-A Australia vTvx Holdings I LLC 2013235167  
2012-01-BR-A Brazil vTvx Holdings I LLC BR1120140227438  
2012-01-CA-A Canada vTvx Holdings I LLC 2868033  
2012-01-CN-A China vTvx Holdings I LLC 201380015508.2  
2012-01-EA-A Eurasia vTvx Holdings I LLC 201491749  
 
 
File No. Country Owner Application No. Patent No.
2012-01-EP-A Europe vTvx Holdings I LLC 13765015.6  
2012-01-HK-A Hong Kong vTvx Holdings I LLC 14112910.6  
2012-01-IL-A Israel vTvx Holdings I LLC 234615  
2012-01-IN-A India vTvx Holdings I LLC 7867/DELNP/2014  
2012-01-JP-A Japan vTvx Holdings I LLC 2015-501876  
2012-01-KR-A South Korea vTvx Holdings I LLC 10-2014-7026362  
2012-01-MX-A Mexico vTvx Holdings I LLC MX/a/2014/010366  
2012-01-NZ-A New Zealand vTvx Holdings I LLC 629203  
2012-01-SG-A Singapore vTvx Holdings I LLC 11201405353V  
2012-01-US-A United States vTvx Holdings I LLC 14/489,890  
2012-01-ZA-A South Africa vTvx Holdings I LLC 2014/06521  
2013-01-AU-A Australia vTvx Holdings I LLC 2014207748  
2013-01-CA-A Canada vTvx Holdings I LLC    
2013-01-NZ-A New Zealand vTvx Holdings I LLC 709129  
2013-01-SG-A Singapore vTvx Holdings I LLC    
2000-02-US-A United States vTvx Holdings I LLC 09/799,152 6,908,741
2001-21-US-A United States vTvx Holdings I LLC 10/091,759 7,423,177
2002-01-AT-A Austria vTvx Holdings I LLC 3713918.5 1482931 (E529110)
2002-01-AU-A Australia vTvx Holdings I LLC 2003217943 2003217943
2002-01-AU-B Australia vTvx Holdings I LLC 2007202350 2007202350
2002-01-AU-C Australia vTvx Holdings I LLC 2009202814 2009202814
2002-01-BE-A Belgium vTvx Holdings I LLC 3713918.5 1482931
2002-01-CA-A Canada vTvx Holdings I LLC 2476594 2,476,594
2002-01-CH-A Switzerland vTvx Holdings I LLC 3713918.5 1482931
2002-01-CN-A China vTvx Holdings I LLC 3805204 ZL 03805204.0
2002-01-DE-A Germany vTvx Holdings I LLC 3713918.5 1482931 (60338810.8)
2002-01-DK-A Denmark vTvx Holdings I LLC 3713918.5 1482931 (DK/EP1482931)
2002-01-EP-A Europe vTvx Holdings I LLC 3713918.5 1482931
2002-01-ES-A Spain vTvx Holdings I LLC 3713918.5 1482931 (2373875)
2002-01-FR-A France vTvx Holdings I LLC 3713918.5 1482931
2002-01-GB-A United Kingdom vTvx Holdings I LLC 3713918.5 1482931
2002-01-HK-A Hong Kong vTvx Holdings I LLC 5103177.4 HK1069549
2002-01-IE-A Ireland vTvx Holdings I LLC 3713918.5 1482931
2002-01-IT-A Italy vTvx Holdings I LLC 3713918.5 1482931 (47615 BE/2012)
2002-01-JP-A Japan vTvx Holdings I LLC 2003-574195 4481011
2002-01-LU-A Luxembourg vTvx Holdings I LLC 3713918.5 1482931
2002-01-MC-A Monaco vTvx Holdings I LLC 3713918.5 1482931
2002-01-MO-A Macau vTvx Holdings I LLC J/000383 J/000383
2002-01-NL-A Netherlands vTvx Holdings I LLC 3713918.5 1482931
 
 
File No. Country Owner Application No. Patent No.
2002-01-SE-A Sweden vTvx Holdings I LLC 3713918.5 1482931
2002-01-US-A United States vTvx Holdings I LLC 10/382,203 7,361,678
2002-01-US-B United States vTvx Holdings I LLC 11/511,163 7,714,013
2002-01-US-C United States vTvx Holdings I LLC 11/800,085 7,737,285
2007-01-CA-A Canada vTvx Holdings I LLC 2681864  
2007-01-US-A United States vTvx Holdings I LLC 12/046,872 7,884,219
2007-01-US-B United States vTvx Holdings I LLC 12/982,775 8,372,988
2009-03-CA-A Canada vTvx Holdings I LLC 2772797  
2009-03-CH-A Switzerland vTvx Holdings I LLC 10757925.2 2470510
2009-03-DE-A Germany vTvx Holdings I LLC 10757925.2 2470510 (602010016110.2)
2009-03-EP-A Europe vTvx Holdings I LLC 10757925.2 2470510
2009-03-ES-A Spain vTvx Holdings I LLC 10757925.2 2470510
2009-03-FR-A France vTvx Holdings I LLC 10757925.2 2470510
2009-03-GB-A United Kingdom vTvx Holdings I LLC 10757925.2 2470510
2009-03-IE-A Ireland vTvx Holdings I LLC 10757925.2 2470510
2009-03-IT-A Italy vTvx Holdings I LLC 10757925.2 2470510 (69561 BE/2014)
2009-03-JP-A Japan vTvx Holdings I LLC 2012-532199  
2009-03-TW-A Taiwan vTvx Holdings I LLC 99132288  
2009-03-US-A United States vTvx Holdings I LLC 12/888,660 8,580,833
2009-03-US-B United States vTvx Holdings I LLC 14/049,261  
2010-01-CA-A Canada vTvx Holdings I LLC 2788355  
2010-01-CH-A Switzerland vTvx Holdings I LLC 11745116.1  
2010-01-DE-A Germany vTvx Holdings I LLC 11745116.1  
2010-01-EP-A Europe vTvx Holdings I LLC 11745116.1  
2010-01-ES-A Spain vTvx Holdings I LLC 11745116.1  
2010-01-FR-A France vTvx Holdings I LLC 11745116.1  
2010-01-GB-A United Kingdom vTvx Holdings I LLC 11745116.1  
2010-01-IE-A Ireland vTvx Holdings I LLC 11745116.1  
2010-01-IT-A Italy vTvx Holdings I LLC 11745116.1  
2010-01-JP-A Japan vTvx Holdings I LLC 2012-553968  
2010-01-TW-A Taiwan vTvx Holdings I LLC 100104976  
2010-01-US-A United States vTvx Holdings I LLC 13/028,036 8,431,575
2010-01-US-B United States vTvx Holdings I LLC 13/772,685 8,741,900
2010-01-US-C United States vTvx Holdings I LLC 14/225,837 9,045,461
2012-02-AU-A Australia vTvx Holdings I LLC 2013327450  
2012-02-BR-A Brazil vTvx Holdings I LLC BR1120150076416  
2012-02-CA-A Canada vTvx Holdings I LLC 2886785  
2012-02-CN-A China vTvx Holdings I LLC 201380051206  
2012-02-EA-A Eurasia vTvx Holdings I LLC 201590687  
 
 
File No. Country Owner Application No. Patent No.
2012-02-EP-A Europe vTvx Holdings I LLC    
2012-02-IL-A Israel vTvx Holdings I LLC 237730  
2012-02-IN-A India vTvx Holdings I LLC 3734/DELNP/2015  
2012-02-JP-A Japan vTvx Holdings I LLC    
2012-02-KR-A South Korea vTvx Holdings I LLC 10-2015-7011366  
2012-02-MX-A Mexico vTvx Holdings I LLC MX/a/2015/003732  
2012-02-NZ-A New Zealand vTvx Holdings I LLC 705813  
2012-02-SG-A Singapore vTvx Holdings I LLC 11201502210V  
2012-02-US-A United States vTvx Holdings I LLC 14/059,529  
2012-02-ZA-A South Africa vTvx Holdings I LLC 2015/01834  
2004-02-US-A United States vTvx Holdings I LLC 11/110,499 7,820,704
2008-07-US-A United States vTvx Holdings I LLC 12/547,018 8,563,742
2003-08-US-A United States vTvx Holdings I LLC 10/913,216 7,459,472
2003-07-US-A United States vTvx Holdings I LLC 10/913,882 7,501,538
2003-02-US-A United States vTvx Holdings I LLC 10/913,168 7,544,699
2001-14/16-US-A United States vTvx Holdings I LLC 10/274,546 6,933,303
2006-01-AU-A Australia vTvx Holdings I LLC 2007211319 2007211319
2006-01-CA-A Canada vTvx Holdings I LLC 2637024 2,637,024
2006-01-CN-A China vTvx Holdings I LLC 200780003942.3 ZL200780003942.3
2006-01-EA-A Eurasia vTvx Holdings I LLC 200870218 19385
2006-01-EP-A Europe vTvx Holdings I LLC 7763040.8  
2006-01-HK-A Hong Kong vTvx Holdings I LLC 9104978.9 HK1127342
2006-01-IL-A Israel vTvx Holdings I LLC 192557 192557
2006-01-JP-A Japan vTvx Holdings I LLC 2008-553332 5180099
2006-01-MO-A Macau vTvx Holdings I LLC J/000800 J/000800
2006-01-MX-A Mexico vTvx Holdings I LLC MX/a/2008/008929 316963
2006-01-NZ-A New Zealand vTvx Holdings I LLC 569329 569329
2006-01-SG-A Singapore vTvx Holdings I LLC 200804987-6 144278 [WO 2007/089857]
2006-01-US-A United States vTvx Holdings I LLC 11/699,780 7,723,369
2006-01-US-B United States vTvx Holdings I LLC 12/685,178 8,404,731
2006-01-ZA-A South Africa vTvx Holdings I LLC 2008/05648 2008/05648
2004-04-AU-A Australia vTvx Holdings I LLC 2005271452 2005271452
2004-04-CA-A Canada vTvx Holdings I LLC 2570324 2,570,324
2004-04-CH-A Switzerland vTvx Holdings I LLC 5778764 1781700
2004-04-CN-A China vTvx Holdings I LLC 200580025947.7  
2004-04-DE-A Germany vTvx Holdings I LLC 5778764 1781700 (602005043021.0)
2004-04-EA-A Eurasia vTvx Holdings I LLC 200700404 12082
2004-04-EP-A Europe vTvx Holdings I LLC 5778764 1781700
 
 
File No. Country Owner Application No. Patent No.
2004-04-ES-A Spain vTvx Holdings I LLC 5778764 1781700
2004-04-FR-A France vTvx Holdings I LLC 5778764 1781700
2004-04-GB-A United Kingdom vTvx Holdings I LLC 5778764 1781700
2004-04-HK-A Hong Kong vTvx Holdings I LLC 7108801.5  
2004-04-IE-A Ireland vTvx Holdings I LLC 5778764 1781700
2004-04-IL-A Israel vTvx Holdings I LLC 180554 180554
2004-04-IN-A India vTvx Holdings I LLC 0797/DELNP/2007 257473
2004-04-IT-A Italy vTvx Holdings I LLC 5778764 1781700
2004-04-JP-A Japan vTvx Holdings I LLC 2007-524978 5188804
2004-04-KR-A South Korea vTvx Holdings I LLC 10-2007-7005152 10-1323411
2004-04-MX-A Mexico vTvx Holdings I LLC MX/a/2007/001559 293182
2004-04-NZ-A New Zealand vTvx Holdings I LLC 552128 552128
2004-04-SG-A Singapore vTvx Holdings I LLC 200700364-3 129082 [WO 2006/017647]
2004-04-US-A United States vTvx Holdings I LLC 11/197,038 7,901,688
2004-04-US-B United States vTvx Holdings I LLC 11/629,437 7,981,423
2004-04-US-C United States vTvx Holdings I LLC 12/983,604 8,877,192
2004-04-ZA-A South Africa vTvx Holdings I LLC 2007/00643 2007/00643
2004-04-ZA-B South Africa vTvx Holdings I LLC 2009/06459 2009/06459
2006-07-AU-A Australia vTvx Holdings I LLC 2007248784 2007248784
2006-07-CA-A Canada vTvx Holdings I LLC 2651348  
2006-07-EA-A Eurasia vTvx Holdings I LLC 200870502 17291
2006-07-EP-A Europe vTvx Holdings I LLC 7794379.3  
2006-07-JP-A Japan vTvx Holdings I LLC 2009-509615 5558810
2006-07-MX-A Mexico vTvx Holdings I LLC MX/a/2008/013863 307987
2006-07-NZ-A New Zealand vTvx Holdings I LLC 571692 571692
2006-07-US-A United States vTvx Holdings I LLC 11/789,637 7,981,424
2006-07-US-B United States vTvx Holdings I LLC 13/158,748 8,344,120
2006-07-ZA-A South Africa vTvx Holdings I LLC 2008/09394 2008/09394
2009-04-CA-A Canada vTvx Holdings I LLC 2757079 2,757,079
2009-04-EP-A Europe vTvx Holdings I LLC 10718284.2  
2009-04-JP-A Japan vTvx Holdings I LLC 2010-95600  
2009-04-US-A United States vTvx Holdings I LLC 13/265,132 9,034,341
2009-04-US-B United States vTvx Holdings I LLC 14/686,352  
2010-02-CA-A Canada vTvx Holdings I LLC 2789244  
2010-02-EP-A Europe vTvx Holdings I LLC 10773766  
2010-02-JP-A Japan vTvx Holdings I LLC 2012-553874  
2010-02-US-A United States vTvx Holdings I LLC 13/062,395  
77456-A United States Jointly owned by vTvx Holdings I LLC and The Trustees of Columbia University in the City of New York, each with a 1/2 undivided interest. 11/197,644  

 

 
 

 

Commercial Lease Transferred from vTvx Holdings I LLC:

 

·Lease Agreement, dated as of September 20, 1999, by and between Liberty Property Limited Partnership and TransTech Pharma, Inc., as amended by that certain First Amendment thereto dated as of March 6, 2000, that certain Second Amendment thereto dated as of March 22, 2000, that certain Third Amendment thereto dated as of December 5, 2001, that certain Fourth Amendment thereto dated as of March 18, 2004, and that certain Fifth Amendment thereto dated as of May 30, 2013, which Lease Agreement, as amended, relates to 4170 Mendenhall Oaks Pkwy, High Point, NC.

 

License Agreements and other Contracts Transferred from vTvx Holdings I LLC:

 

·New Exclusive License Agreement, dated May 14, 2015, by and between The Trustees of Columbia University in the City of New York and vTvx I Holdings LLC.

 

·Agreement Concerning Glucokinase Activator Project, dated February 20, 2007, by and between Novo Nordisk A/S and vTvx I Holdings LLC.

 

·License and Research Agreement, dated as of March 5, 2015, by and among Calithera Biosciences Inc., vTvx I Holdings LLC, and vTvx II Holdings LLC.

 

·Biological Program Termination Agreement, dated as of May 8, 2009, by and between Pfizer, Inc. and vTvx I Holdings LLC.

 

·Assignment of Patent Applications, dated as of July 17, 2013, by and between Pfizer, Inc. and vTvx I Holdings LLC.

 

·All other valid and ongoing licenses, contracts and other agreements entered into by vTvx Holdings I LLC, but excluding the agreements set forth or referenced in the Excluded Assets section below.

 

Personal Property Transferred from vTvx Holdings I LLC:

 

·All personal property owned by vTvx Holdings I LLC, including (without limitation) the following:

 

oLaboratory equipment

 

oLeasehold improvements

 

oComputers and hardware

 

oSoftware

 

oFurniture and office equipment

 

 
 

 

Transferred Employee Assets of vTvx Holdings I LLC:

 

The following employee benefit plans are, in respect of those employees of vTvx Holdings I LLC and vTvx Holdings II LLC whose employment is assigned and transferred to the Company and subject to any transition services period as set forth in Sections 2.1(d)(i) and 2.1(d)(v) of the Agreement, assigned and transferred to the Company.

 

·TransTech Pharma, LLC Retirement Plan

 

oDirected Trustee Agreement by and between TransTech Pharma, LLC and Mid Atlantic Trust Company, dated as of November 26, 2013

 

oInvestment Management Agreement by and between High Point Bank and Trust Company and TransTech Pharma, LLC & PharmaCore, Inc., dated as of November 26, 2013

 

oRecordkeeping and Investment Account Services Agreement by and between EPIC Advisors, Inc. and TransTech Pharma, LLC, dated as of November 26, 2013

 

·BlueOptions Medical Plan (BlueCross BlueShield of North Carolina)

 

·Delta Dental PPO Plus Premier (Dental Plan)

 

·COBRA Administration Arrangement with Flores & Associates, LLC

 

·Wingspan Cafeteria Plan (AFLAC supplemental insurance)

 

·Group Term Life Insurance (USAble Life)

 

·Group Voluntary Life Insurance (USAble Life)

 

·Group Accidental Death and Dismemberment Insurance (USAble Life)

 

·Group Long Term Disability Insurance (USAble Life)

 

·Group Short Term Disability Insurance (administered by USAble Life)

 

 
 

 

Assets Transferred from vTvx Holdings II LLC

 

INDs and Similar Assets:

 

Program Compound IND / File # Holder
BACH1 HPP971 IND 119,328 vTvx Holdings II LLC
PDE4 HPP737 IND 116,186 vTvx Holdings II LLC
PPAR HPP593 IND 122,225; and IND 107,545 vTvx Holdings II LLC
11-Beta HPP851 IND 110,923 vTvx Holdings II LLC
PPAR HPP5920 IND 73,189 vTvx Holdings II LLC
BACE HPP854 IND 105,195 vTvx Holdings II LLC
H3 HPP404 IND 103,863 vTvx Holdings II LLC

 

Patents:

 

File No. Country Owner Application No. Patent No.
3009.200-GCC Gulf Cooperation Council vTvx Holdings II LLC GC 2011-17799  
3009.200-JO Jordan vTvx Holdings II LLC 47/2011  
3009.200-LB Lebanon vTvx Holdings II LLC 1193 9286
3009.200-TW Taiwan vTvx Holdings II LLC 100105506  
3009.200-US United States vTvx Holdings II LLC 13/028,406 8,759,535
3009.204-AU Australia vTvx Holdings II LLC 2011218316  
3009.204-BR Brazil vTvx Holdings II LLC BR1120120207598  
3009.204-CA Canada vTvx Holdings II LLC 2789950  
3009.204-CN China vTvx Holdings II LLC 201180009915.3 ZL 201180009915.3
3009.204-HK Hong Kong vTvx Holdings II LLC 12112645  
3009.204-IL Israel vTvx Holdings II LLC 220906  
3009.204-IN India vTvx Holdings II LLC 6692/DELNP/2012  
3009.204-JP Japan vTvx Holdings II LLC 2012-553942  
3009.204-KR South Korea vTvx Holdings II LLC 10-2012-7023193  
3009.204-MO Macau vTvx Holdings II LLC J/001597  
3009.204-MX Mexico vTvx Holdings II LLC MX/a/2012/009628  
3009.204-NZ New Zealand vTvx Holdings II LLC 602395 602395
3009.204-SG Singapore vTvx Holdings II LLC 201205373-2 182629
3009.204-ZA South Africa vTvx Holdings II LLC 2012/05800  
3009.205-EA Eurasia vTvx Holdings II LLC 201290808  
3009.205-EP Europe vTvx Holdings II LLC 11745064.3  
3009.210-US United States vTvx Holdings II LLC 14/215,873  
3017.204-US United States vTvx Holdings II LLC 13/894,922  
3039.000-US United States vTvx Holdings II LLC 62/082,706  
 
 
File No. Country Owner Application No. Patent No.
3040.000-US United States vTvx Holdings II LLC 62/085,875  
3036.000-US United States vTvx Holdings II LLC 62/063,347  
3037.000-US United States vTvx Holdings II LLC 62/063,352  
3038.000-US United States vTvx Holdings II LLC 62/063,348  
CBH-02560 United States vTvx Holdings II LLC 62/171,051  
3004.204-AU Australia vTvx Holdings II LLC 2009206368 2009206368
3004.204-BR Brazil vTvx Holdings II LLC PI0906809-0  
3004.204-CA Canada vTvx Holdings II LLC 2711576  
3004.204-CN China vTvx Holdings II LLC 200980102961 ZL200980102961.0
3004.204-HK Hong Kong vTvx Holdings II LLC 11102132.2  
3004.204-IL Israel vTvx Holdings II LLC 206854 206854
3004.204-IN India vTvx Holdings II LLC 5151/DELNP/2010  
3004.204-JP Japan vTvx Holdings II LLC 2010-544436 5406215
3004.204-KR South Korea vTvx Holdings II LLC 10-2010-7017176  
3004.204-MO Macau vTvx Holdings II LLC J/001596  
3004.204-MX Mexico vTvx Holdings II LLC MX/a/2010/007768 313517
3004.204-NZ New Zealand vTvx Holdings II LLC 586695 586695
3004.204-SG Singapore vTvx Holdings II LLC 201005095-3 163680 [WO 2009/094528]
3004.204-US United States vTvx Holdings II LLC 12/532,861 7,964,608
3004.204-ZA South Africa vTvx Holdings II LLC 2010/04818 2010/04818
3004.205-CH Switzerland vTvx Holdings II LLC 9704760.9 2244574
3004.205-DE Germany vTvx Holdings II LLC 9704760.9 2244574 (DE 60 2009 026 929.1)
3004.205-EA Eurasia vTvx Holdings II LLC 201070884 18462
3004.205-EP Europe vTvx Holdings II LLC 9704760.9 2244574
3004.205-ES Spain vTvx Holdings II LLC 9704760.9 2244574
3004.205-FR France vTvx Holdings II LLC 9704760.9 2244574
3004.205-IE Ireland vTvx Holdings II LLC 9704760.9 2244574
3004.205-IT Italy vTvx Holdings II LLC 9704760.9 2244574 (IT 72239/BE/2014)
3004.205-UK United Kingdom vTvx Holdings II LLC 9704760.9 2244574
3004.214-US United States vTvx Holdings II LLC 13/040,382 8,853,226
3004.224-US United States vTvx Holdings II LLC 13/410,628 8,329,715
3004.234-US United States vTvx Holdings II LLC 14/477,302  
3025.200-US United States vTvx Holdings II LLC 14/478,594  
3025.204-PCT PCT Application vTvx Holdings II LLC PCT/US2014/054303  
5697.200-US United States vTvx Holdings II LLC 09/551,740 6,972,294
6134.210-US United States vTvx Holdings II LLC 10/370,856 6,867,218
6310.200-US United States vTvx Holdings II LLC 10/201,456 6,869,967
6569.200-US United States vTvx Holdings II LLC 10/693,161 7,129,268
 
 
File No. Country Owner Application No. Patent No.
6569.204-AU Australia vTvx Holdings II LLC 2003273783 2003273783
6569.204-CN China vTvx Holdings II LLC 200380102228.1 ZL200380102228.1
6569.204-IN India vTvx Holdings II LLC 1364/DELNP/2005 232024
6569.204-JP Japan vTvx Holdings II LLC 2005-501509 4708184
6569.204-MX Mexico vTvx Holdings II LLC PA/a/2005/004402 254995
6569.204-RU Russia vTvx Holdings II LLC 2005116243 2349582
6569.204-ZA South Africa vTvx Holdings II LLC 2005/02814 2005/02814
6569.205-BE Belgium vTvx Holdings II LLC 3757741.8 1558572
6569.205-CH Switzerland vTvx Holdings II LLC 3757741.8 1558572
6569.205-DE Germany vTvx Holdings II LLC 3757741.8 1558572 (60333211.0)
6569.205-EP Europe vTvx Holdings II LLC 3757741.8 1558572
6569.205-ES Spain vTvx Holdings II LLC 3757741.8 1558572 (2345882)
6569.205-FR France vTvx Holdings II LLC 3757741.8 1558572
6569.205-GB United Kingdom vTvx Holdings II LLC 3757741.8 1558572
6569.205-IE Ireland vTvx Holdings II LLC 3757741.8 1558572
6569.205-IT Italy vTvx Holdings II LLC 3757741.8 1558572 (27102 BE/2010)
7186.200-TW Taiwan vTvx Holdings II LLC 95123781 I371446
7186.204-AU Australia vTvx Holdings II LLC 2006265172 2006265172
7186.204-BR Brazil vTvx Holdings II LLC PI0612730-4  
7186.204-CA Canada vTvx Holdings II LLC 2613365 2,613,365
7186.204-IN India vTvx Holdings II LLC 9775/DELNP/2007  
7186.204-JP Japan vTvx Holdings II LLC 2008-519909 5052511
7186.204-KR South Korea vTvx Holdings II LLC 10-2008-7001795 10-1333101
7186.204-MX Mexico vTvx Holdings II LLC MX/a/2007/016374 289941
7186.204-RU Russia vTvx Holdings II LLC 2007147050 2412935
7186.204-US United States vTvx Holdings II LLC 11/917,811 7,943,669
7186.205-CH Switzerland vTvx Holdings II LLC 6763966.6 1899302
7186.205-DE Germany vTvx Holdings II LLC 6763966.6 1899302 (602006025239.0)
7186.205-EP Europe vTvx Holdings II LLC 6763966.6 1899302
7186.205-ES Spain vTvx Holdings II LLC 6763966.6 1899302 (2372617)
7186.205-FR France vTvx Holdings II LLC 6763966.6 1899302
7186.205-GB United Kingdom vTvx Holdings II LLC 6763966.6 1899302
7186.205-IE Ireland vTvx Holdings II LLC 6763966.6 1899302
7186.205-IT Italy vTvx Holdings II LLC 6763966.6 1899302 (32046 BE/2011)
7186.214-MX Mexico vTvx Holdings II LLC MX/a/2011/008185 313342
7186.214-US United States vTvx Holdings II LLC 13/080,425 8,217,086
7186.215-CH Switzerland vTvx Holdings II LLC 10188181.1 2298742
7186.215-DE Germany vTvx Holdings II LLC 10188181.1 2298742 (602006040041.1)
 
 
File No. Country Owner Application No. Patent No.
7186.215-EP Europe vTvx Holdings II LLC 10188181.1 2298742
7186.215-ES Spain vTvx Holdings II LLC 10188181.1 2298742 (2449618)
7186.215-FR France vTvx Holdings II LLC 10188181.1 2298742
7186.215-GB United Kingdom vTvx Holdings II LLC 10188181.1 2298742
7186.215-IE Ireland vTvx Holdings II LLC 10188181.1 2298742
7186.215-IT Italy vTvx Holdings II LLC 10188181.1 2298742 (21081 BE/2014)
7186.224-US United States vTvx Holdings II LLC 13/466,191 8,426,473
7253.200-TW Taiwan vTvx Holdings II LLC 95148358 I389878
7253.204-AU Australia vTvx Holdings II LLC 2006327003 2006327003
7253.204-BR Brazil vTvx Holdings II LLC PI0620468-6  
7253.204-CA Canada vTvx Holdings II LLC 2631390 2,631,390
7253.204-IL Israel vTvx Holdings II LLC 191655 191655
7253.204-IN India vTvx Holdings II LLC 5418/DELNP/2008  
7253.204-JP Japan vTvx Holdings II LLC 2008-546470 5054028
7253.204-KR South Korea vTvx Holdings II LLC 10-2008-7016288 10-1265078
7253.204-MX Mexico vTvx Holdings II LLC MX/a/2008/008098 294461
7253.204-NZ New Zealand vTvx Holdings II LLC 568488 568488
7253.204-US United States vTvx Holdings II LLC 12/097,564 7,943,613
7253.204-ZA South Africa vTvx Holdings II LLC 2008/04767 2008/04767
7253.205-AT Austria vTvx Holdings II LLC 6830789.1 1979311 (E561921)
7253.205-BE Belgium vTvx Holdings II LLC 6830789.1 1979311
7253.205-CH Switzerland vTvx Holdings II LLC 6830789.1 1979311
7253.205-DE Germany vTvx Holdings II LLC 6830789.1 1979311 (602006030230.4)
7253.205-EA Eurasia vTvx Holdings II LLC 200870103 15717
7253.205-EP Europe vTvx Holdings II LLC 6830789.1 1979311
7253.205-ES Spain vTvx Holdings II LLC 6830789.1 1979311 (2386734)
7253.205-FR France vTvx Holdings II LLC 6830789.1 1979311
7253.205-GB United Kingdom vTvx Holdings II LLC 6830789.1 1979311
7253.205-IE Ireland vTvx Holdings II LLC 6830789.1 1979311
7253.205-IT Italy vTvx Holdings II LLC 6830789.1 1979311
7253.214-CN China vTvx Holdings II LLC 201310097997.2  
7253.214-HK Hong Kong vTvx Holdings II LLC 14100388.4  
7253.214-US United States vTvx Holdings II LLC 13/079,460 8,362,016
7253.224-US United States vTvx Holdings II LLC 13/708,163 8,551,993
7253.234-US United States vTvx Holdings II LLC 14/016,442  
3006.204-AU Australia vTvx Holdings II LLC 2009316802 2009316802
3006.204-CA Canada vTvx Holdings II LLC 2744383  
3006.204-EA Eurasia vTvx Holdings II LLC 201170703 20496
 
 
File No. Country Owner Application No. Patent No.
3006.204-IN India vTvx Holdings II LLC 3778/DELNP/2011  
3006.204-KR South Korea vTvx Holdings II LLC 10-2011-7013921  
3006.204-ME Montenegro vTvx Holdings II LLC P-2011-89 1145
3006.204-MX Mexico vTvx Holdings II LLC MX/a/2011/005037 322321
3006.204-US United States vTvx Holdings II LLC 13/128,045 8,927,549
3006.204-ZA South Africa vTvx Holdings II LLC 2011/04551 2011/04551
3006.205-EP Europe vTvx Holdings II LLC 9828106.6  
3006.214-SG Singapore vTvx Holdings II LLC 201308611-1  
3015.200-US United States vTvx Holdings II LLC 13/189,640 8,513,430
6620.504-US United States vTvx Holdings II LLC 11/254,125 7,501,405
7533.204-US United States vTvx Holdings II LLC 12/528,227 8,334,305
7534.204-AU Australia vTvx Holdings II LLC 2008219326 2008219326
7534.204-CA Canada vTvx Holdings II LLC 2675669 2,675,669
7534.204-CN China vTvx Holdings II LLC 200880005896.5  
7534.204-IL Israel vTvx Holdings II LLC 199853  
7534.204-JP Japan vTvx Holdings II LLC 2009-550278 5243455
7534.204-KR South Korea vTvx Holdings II LLC 10-2009-7017160 10-1487813
7534.204-MX Mexico vTvx Holdings II LLC MX/a/2009/008228 310901
7534.204-US United States vTvx Holdings II LLC 12/528,229 8,383,820
7534.204-ZA South Africa vTvx Holdings II LLC 2009/04916 2009/04916
7534.205-EA Eurasia vTvx Holdings II LLC 200970791 16951
7534.205-EP Europe vTvx Holdings II LLC 8709090.8  
7534.205-HK Hong Kong vTvx Holdings II LLC 10105670.4  
7534.214-US United States vTvx Holdings II LLC 13/739,408 8,809,540
7534.224-US United States vTvx Holdings II LLC 14/321,884 8,907,096
7545.204-CN China vTvx Holdings II LLC 200880019488.5 ZL200880019488.5
7545.204-US United States vTvx Holdings II LLC 12/597,129 8,383,683
7545.205-BE Belgium vTvx Holdings II LLC 8745501 2150109
7545.205-CH Switzerland vTvx Holdings II LLC 8745501 2150109
7545.205-DE Germany vTvx Holdings II LLC 8745501 2150109 (602008018859.0)
7545.205-EP Europe vTvx Holdings II LLC 8745501 2150109
7545.205-ES Spain vTvx Holdings II LLC 8745501 2150109 (2393230)
7545.205-FR France vTvx Holdings II LLC 8745501 2150109
7545.205-GB United Kingdom vTvx Holdings II LLC 8745501 2150109
7545.205-HK Hong Kong vTvx Holdings II LLC 10106495.5 HK1140377
7545.205-IE Ireland vTvx Holdings II LLC 8745501 2150109
7545.205-IT Italy vTvx Holdings II LLC 8745501 2150109 (52364 BE/2012)
3002.204-AU Australia vTvx Holdings II LLC 2006223070 2006223070
3002.204-CA Canada vTvx Holdings II LLC 2600570 2,600,570
 
 
File No. Country Owner Application No. Patent No.
3002.204-CN China vTvx Holdings II LLC 200680008417.6 ZL200680008417.6
3002.204-IL Israel vTvx Holdings II LLC 185541 185541
3002.204-MO Macau vTvx Holdings II LLC J/000923 J/000923
3002.204-MX Mexico vTvx Holdings II LLC MX/a/2007/011234 299183
3002.204-NZ New Zealand vTvx Holdings II LLC 561029 561029
3002.204-US United States vTvx Holdings II LLC 11/885,096 7,893,267
3002.205-AT Austria vTvx Holdings II LLC 6738139.2 1863771 (E582940)
3002.205-BE Belgium vTvx Holdings II LLC 6738139.2 1863771
3002.205-CH Switzerland vTvx Holdings II LLC 6738139.2 1863771
3002.205-DE Germany vTvx Holdings II LLC 6738139.2 1863771 (602006032907.5)
3002.205-EP Europe vTvx Holdings II LLC 6738139.2 1863771
3002.205-ES Spain vTvx Holdings II LLC 6738139.2 1863771 (2400287)
3002.205-FR France vTvx Holdings II LLC 6738139.2 1863771
3002.205-GB United Kingdom vTvx Holdings II LLC 6738139.2 1863771
3002.205-HK Hong Kong vTvx Holdings II LLC 8105884  
3002.205-IE Ireland vTvx Holdings II LLC 6738139.2 1863771
3002.205-IT Italy vTvx Holdings II LLC 6738139.2 1863771 (47770 BE/2013)
3002.214-US United States vTvx Holdings II LLC 12/950,718 8,598,353
3002.214-ZA South Africa vTvx Holdings II LLC 2009/03300 2009/03300
3002.224-US United States vTvx Holdings II LLC 14/064,737 8,946,259
3011.204-US United States vTvx Holdings II LLC 13/214,434 8,350,039
3013.200-US United States vTvx Holdings II LLC 13/052,544 8,450,354
3001.200-US United States vTvx Holdings II LLC 11/255,000 7,582,673
5390.200-US United States vTvx Holdings II LLC 09/548,081 6,908,926
6327.205-EP Europe vTvx Holdings II LLC 2742851.5 1421071
6446.204-MX Mexico vTvx Holdings II LLC PA/a/2004/007416 251269
6483.200-US United States vTvx Holdings II LLC 10/453,106 6,906,060
6739.204-AU Australia vTvx Holdings II LLC 2004259263 2004259263
6739.204-CA Canada vTvx Holdings II LLC 2532236 2,532,236
6739.204-CN China vTvx Holdings II LLC 200480021891.3 ZL200480021891.3
6739.204-MX Mexico vTvx Holdings II LLC PA/a/2006/001053 257494
6739.204-US United States vTvx Holdings II LLC 11/334,207 7,294,626
6739.205-BE Belgium vTvx Holdings II LLC 4738980.4 1651615
6739.205-CH Switzerland vTvx Holdings II LLC 4738980.4 1651615
6739.205-DE Germany vTvx Holdings II LLC 4738980.4 1651615 (602004026068.1)
6739.205-EP Europe vTvx Holdings II LLC 4738980.4 1651615
6739.205-ES Spain vTvx Holdings II LLC 4738980.4 1651615 (2342605)
6739.205-FR France vTvx Holdings II LLC 4738980.4 1651615
 
 
File No. Country Owner Application No. Patent No.
6739.205-GB United Kingdom vTvx Holdings II LLC 4738980.4 1651615
6739.205-IE Ireland vTvx Holdings II LLC 4738980.4 1651615
6739.205-IT Italy vTvx Holdings II LLC 4738980.4 1651615 (24463 BE/2010)
7213.204-AU Australia vTvx Holdings II LLC 2006264966 2006264966
7213.204-CA Canada vTvx Holdings II LLC 2614116  
7213.204-JP Japan vTvx Holdings II LLC 2008-519917 5121707
7213.204-KR South Korea vTvx Holdings II LLC 10-2008-7000240 10-1286569
7213.204-MX Mexico vTvx Holdings II LLC MX/a/2007/015675 295147
7213.204-RU Russia vTvx Holdings II LLC 2007147044 2442775
7213.204-US United States vTvx Holdings II LLC 11/917,823 8,501,739
7213.214-RU Russia vTvx Holdings II LLC 2011142654 2499795
7213.214-US United States vTvx Holdings II LLC 13/472,090 8,846,677
7213.215-CH Switzerland vTvx Holdings II LLC 10166493.6 2233470
7213.215-DE Germany vTvx Holdings II LLC 10166493.6 2233470 (602006026313.9)
7213.215-EP Europe vTvx Holdings II LLC 10166493.6 2233470
7213.215-ES Spain vTvx Holdings II LLC 10166493.6 2233470 (2375929)
7213.215-FR France vTvx Holdings II LLC 10166493.6 2233470
7213.215-GB United Kingdom vTvx Holdings II LLC 10166493.6 2233470
7213.215-IE Ireland vTvx Holdings II LLC 10166493.6 2233470
7213.215-IT Italy vTvx Holdings II LLC 10166493.6 2233470 (19699 BE/2012)
7397.204-AU Australia vTvx Holdings II LLC 2007229492 2007229492
7397.204-CN China vTvx Holdings II LLC 200780010971.2 ZL200780010971.2
7397.204-KR South Korea vTvx Holdings II LLC 10-2008-7023919 10-1280333
7397.204-MO Macau vTvx Holdings II LLC J/000709 J/000709
7397.204-MX Mexico vTvx Holdings II LLC MX/a/2008/011123 288665
7397.204-NZ New Zealand vTvx Holdings II LLC 570524 570524
7397.204-US United States vTvx Holdings II LLC 12/294,756 8,394,842
7397.204-ZA South Africa vTvx Holdings II LLC 2008/06985 2008/06985
7397.205-BE Belgium vTvx Holdings II LLC 7727226.8 1999120
7397.205-CH Switzerland vTvx Holdings II LLC 7727226.8 1999120
7397.205-DE Germany vTvx Holdings II LLC 7727226.8 1999120 (602007023602.9)
7397.205-EA Eurasia vTvx Holdings II LLC 200870376 15569
7397.205-EP Europe vTvx Holdings II LLC 7727226.8 1999120
7397.205-ES Spain vTvx Holdings II LLC 7727226.8 1999120
7397.205-FR France vTvx Holdings II LLC 7727226.8 1999120
7397.205-GB United Kingdom vTvx Holdings II LLC 7727226.8 1999120
7397.205-HK Hong Kong vTvx Holdings II LLC 9107300.1 HK1129102
 
 
File No. Country Owner Application No. Patent No.
7397.205-IE Ireland vTvx Holdings II LLC 7727226.8 1999120
7397.205-IT Italy vTvx Holdings II LLC 7727226.8 1999120 (28597 BE/2012)
7397.214-US United States vTvx Holdings II LLC 13/660,045 8,772,285
7435.204-US United States vTvx Holdings II LLC 12/301,919 8,318,927
7461.204-AU Australia vTvx Holdings II LLC 2007267197 2007267197
7461.204-CA Canada vTvx Holdings II LLC 2659570  
7461.204-EA Eurasia vTvx Holdings II LLC 200870586 16026
7461.204-IL Israel vTvx Holdings II LLC 194681 194681
7461.204-JP Japan vTvx Holdings II LLC 2009-512547 5694661
7461.204-MX Mexico vTvx Holdings II LLC MX/a/2008/014766 297339
7461.204-NZ New Zealand vTvx Holdings II LLC 571972 571972
7461.204-US United States vTvx Holdings II LLC 12/302,132 8,378,097
7461.204-ZA South Africa vTvx Holdings II LLC 2008/08730 2008/08730
7461.205-AL Albania vTvx Holdings II LLC 7729379.3 2079732
7461.205-AT Austria vTvx Holdings II LLC 7729379.3 2079732 (E538116)
7461.205-BA Bosnia & Herzegovina vTvx Holdings II LLC 7729379.3 2079732
7461.205-BE Belgium vTvx Holdings II LLC 7729379.3 2079732
7461.205-BG Bulgaria vTvx Holdings II LLC 7729379.3 2079732 (BG/EP2079732T3)
7461.205-CH Switzerland vTvx Holdings II LLC 7729379.3 2079732
7461.205-CY Cyprus vTvx Holdings II LLC 7729379.3 2079732 (CY1112455)
7461.205-CZ Czech Republic vTvx Holdings II LLC 7729379.3 2079732
7461.205-DE Germany vTvx Holdings II LLC 7729379.3 2079732 (602007019505.5)
7461.205-DK Denmark vTvx Holdings II LLC 7729379.3 2079732 (DK/EP2079732)
7461.205-EE Estonia vTvx Holdings II LLC 7729379.3 2079732
7461.205-EP Europe vTvx Holdings II LLC 7729379.3 2079732
7461.205-ES Spain vTvx Holdings II LLC 7729379.3 2079732
7461.205-FI Finland vTvx Holdings II LLC 7729379.3 2079732
7461.205-FR France vTvx Holdings II LLC 7729379.3 2079732
7461.205-GB United Kingdom vTvx Holdings II LLC 7729379.3 2079732
7461.205-GR Greece vTvx Holdings II LLC 7729379.3 2079732 (3077337)
7461.205-HR Croatia vTvx Holdings II LLC 7729379.3 2079732 (P20120227)
7461.205-HU Hungary vTvx Holdings II LLC 7729379.3 2079732 (E012931)
7461.205-IE Ireland vTvx Holdings II LLC 7729379.3 2079732
7461.205-IS Iceland vTvx Holdings II LLC 7729379.3 2079732
7461.205-IT Italy vTvx Holdings II LLC 7729379.3 2079732 (21629 BE/2012)
7461.205-LT Lithuania vTvx Holdings II LLC 7729379.3 2079732
7461.205-LU Luxembourg vTvx Holdings II LLC 7729379.3 2079732
 
 
File No. Country Owner Application No. Patent No.
7461.205-LV Latvia vTvx Holdings II LLC 7729379.3 2079732
7461.205-MC Monaco vTvx Holdings II LLC 7729379.3 2079732
7461.205-ME Montenegro vTvx Holdings II LLC 7729379.3 1302
7461.205-MK Macedonia vTvx Holdings II LLC 7729379.3 2079732 (P-403/11)
7461.205-MT Malta vTvx Holdings II LLC 7729379.3 2079732
7461.205-NL Netherlands vTvx Holdings II LLC 7729379.3 2079732
7461.205-PL Poland vTvx Holdings II LLC 7729379.3 2079732
7461.205-PT Portugal vTvx Holdings II LLC 7729379.3 2079732
7461.205-RO Romania vTvx Holdings II LLC 7729379.3 2079732
7461.205-RS Serbia vTvx Holdings II LLC 7729379.3 2079732 (P-78/12)
7461.205-SE Sweden vTvx Holdings II LLC 7729379.3 2079732
7461.205-SI Slovenia vTvx Holdings II LLC 7729379.3 2079732
7461.205-SK Slovakia vTvx Holdings II LLC 7729379.3 2079732 (E11259 T3)
7461.205-TR Turkey vTvx Holdings II LLC 7729379.3 2079732 (TR201201949T4)
7461.214-SG Singapore vTvx Holdings II LLC 201004699-3 163547 [WO 2007/137968]
7660.204-US United States vTvx Holdings II LLC 12/663,103 8,344,001

 

License Agreements and other Contracts Transferred from vTvx Holdings II LLC:

 

·License and Research Agreement, dated as of March 5, 2015, by and among Calithera Biosciences Inc., vTvx I Holdings LLC, and vTvx II Holdings LLC.

 

·All other valid and ongoing licenses, contracts and other agreements entered into by vTvx Holdings II LLC, but excluding the agreements set forth or referenced in the Excluded Assets section below.

 

Transferred Employee Assets of vTvx Holdings II LLC:

 

None.

 

Know-How Transferred from both vTvx Holdings I LLC and vTvx Holdings II LLC:

 

All know-how associated with any of the foregoing transferred intellectual and other property, including all programs and the “Translational Technology”, including without limitation the following programs:

 

·RAGE (TTP488) program

 

·GK (TTP399) program

 

·GLP (TTP273) program

 

·PPAR (HPP593) program

 

·BACH1 (HPP971) program

 

 
 

 

·HK2 program

 

·RAGE (TTP4000) program

 

·PDE4 program

 

·11beta program

 

·BACE program

 

·GalR1 program

 

·H3 program

 

 
 

 

Excluded Assets

 

List of vTvx Holdings I LLC assets that are NOT being assigned or transferred:

 

For the avoidance of doubt, the following assets are excluded from assignment or transfer by vTvx Holdings I LLC:

 

Category Items
Commercial Lease

Commercial Lease for 4160 Mendenhall Oaks Pkwy Building

 

Real Property

Lot 6 – 4130 Mendenhall Oaks Pkwy, High Point, NC (3.322 acres)

Lot 8 – 4150 Mendenhall Oaks Pkwy, High Point, NC (3.060 acres)

Lot 11-A – 4165 Mendenhall Oaks Pkwy, High Point, NC (10.346 acres)

 

Financial

1)      Note receivable from Former Officer plus any accrued interest

2)      Note receivable from PharmaCore, Inc. plus any accrued interest

3)      Restricted cash to secure letter of credit for 4160 Mendenhall Oaks lease

4)      Benefits and obligations described in the Letter Agreement with Former Officer dated December 31, 2014,   including, but not limited to, cash payments and perpetual securities.

5)      Note payable to M&F TTP Holdings LLC (“Uncommitted Advance Agreement”) plus any accrued interest

6)      Note payable to High Point Bank plus any accrued interest

7)      Accounts payable invoices to PharmaCore, Inc. prior to January 1, 2015 

 

Domain Names

TRANSTECHPHARMA.BIZ

TRANSTECHPHARMA.COM

TRANSTECHPHARMA.INFO

TRANSTECHPHARMA.NET

TRANSTECHPHARMA.ORG

TRANSTECHPHARMA.US

TRANSTECHPHARMA.XXX

TTPHARMA.BIZ

TT-PHARMA.BIZ

TTPHARMA.COM

TTPHARMA.INFO

TT-PHARMA.INFO

TTPHARMA.NET

TT-PHARMA.NET

TTPHARMA.ORG

TT-PHARMA.ORG

TTPHARMA.US

TT-PHARMA.US

 

     
 
 
     
Trademarks Trademark Application No.
TRANSTECH PHARMA 76/406,577
TRANSTECH PHARMA & DESIGN 76/406,579
AT THE FRONTIER OF TRANSLATING INNOVATIVE SCIENCE INTO MEDICINE 76/404,964
VTV THERAPEUTICS (Class 5) 86/594,084
VTV THERAPEUTICS (Class 42) 86/594,096
VTV THERAPEUTICS (Class 44) 86/594,102

 

List of vTvx Holdings II LLC assets that are NOT being assigned or transferred:

 

For the avoidance of doubt, the following assets are excluded from assignment or transfer by vTvx Holdings II LLC:

 

Category Items
Financial

1)      Benefits and obligations described in the Letter Agreement with Former Officer dated December 31, 2014,   including, but not limited to, cash payments and perpetual securities.

2)      Note payable to M&F TTP Holdings LLC (“Uncommitted Advance Agreement”) plus any accrued interest

3)      Accounts payable invoices to PharmaCore, Inc. prior to January 1, 2015

 

Domain Names

HIGHPOINTPHARMACUTICALS.COM

HPPHARMA.COM

HPPHARMACEUTICAL.COM

HIGHPOINTPHARMA.BIZ

HIGHPOINTPHARMA.COM

HIGHPOINTPHARMA.INFO

HIGHPOINTPHARMA.NET

HIGHPOINTPHARMA.ORG

HIGHPOINTPHARMA.US

HIGHPOINTPHARMACEUTICAL.COM

HIGHPOINTPHARMACEUTICALS.BIZ

HIGHPOINTPHARMACEUTICALS.COM

HIGHPOINTPHARMACEUTICALS.NET

HPPHARMACEUTICALS.COM

 

 

 
 

 

Schedule 2

 

Employee Benefit Plans of vTvx I and vTvx II

 

(See attached.)

 

 
 

 

Schedule 2

 

Employee Benefit Plans of vTvx I and vTvx II

 

Employees of vTvx Holdings I LLC and vTvx Holdings II LLC whose employment is assigned and transferred pursuant to Sections 2.1(d)(ii) and 2.1(d)(v) of the Agreement may continue to participate in the following employee benefit plans of vTvx Holdings I LLC and vTvx Holdings II LLC, as applicable, for a period not to exceed four months pursuant to the terms of a customary transition services agreement.

 

·BlueOptions Medical Plan (BlueCross BlueShield of North Carolina)

 

·Delta Dental PPO Plus Premier (Dental Plan)

 

·COBRA Administration Arrangement with Flores & Associates, LLC

 

·Wingspan Cafeteria Plan (AFLAC supplemental insurance)

 

·Group Term Life Insurance (USAble Life)

 

·Group Voluntary Life Insurance (USAble Life)

 

·Group Accidental Death and Dismemberment Insurance (USAble Life)

 

·Group Long Term Disability Insurance (USAble Life)

 

·Group Short Term Disability Insurance (administered by USAble Life)

 

 
 

Exhibit 10.2

 

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

of

VTV THERAPEUTICS LLC

Dated as of July 29, 2015

 
 

 

TABLE OF CONTENTS

 

Page

 

Article I DEFINITIONS AND USAGE 1
Section 1.01   Definitions 1
Section 1.02   Other Definitional and Interpretative Provisions 11
Article II THE COMPANY 12
Section 2.01   Formation 12
Section 2.02   Name 12
Section 2.03   Term 13
Section 2.04   Registered Agent and Registered Office 13
Section 2.05   Purposes 13
Section 2.06   Powers of the Company 13
Section 2.07   Partnership Tax Status 13
Section 2.08   Regulation of Internal Affairs 13
Section 2.09   Ownership of Property 13
Section 2.10   Subsidiaries 13
Article III UNITS; MEMBERS; BOOKS AND RECORDS; REPORTS 14
Section 3.01   Units; Admission of Members 14
Section 3.02   Substitute Members and Additional Members 14
Section 3.03   Tax and Accounting Information 15
Section 3.04   Books and Records 16
Article IV PUBCO OWNERSHIP; RESTRICTIONS ON PUBCO STOCK 17
Section 4.01   Pubco Ownership 17
Section 4.02   Restrictions on Pubco Common Stock 18
Article V CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; DISTRIBUTIONS; ALLOCATIONS 20
Section 5.01   Capital Contributions 20
Section 5.02   Capital Accounts 20
Section 5.03   Amounts and Priority of Distributions 22
Section 5.04   Allocations 24
Section 5.05   Other Allocation Rules 27
Section 5.06   Tax Withholding; Withholding Advances 27
Article VI CERTAIN TAX MATTERS 29
Section 6.01   Tax Matters Partner 29
Section 6.02   Section 754 Election 29
i
 
Article VII MANAGEMENT OF THE COMPANY 29
Section 7.01   Management by the Managing Member 29
Section 7.02   Withdrawal of the Managing Member 30
Section 7.03   Decisions by the Members 30
Section 7.04   [Reserved] 31
Section 7.05   Officers 31
Article VIII TRANSFERS OF INTERESTS 31
Section 8.01   Restrictions on Transfers 31
Section 8.02   Certain Permitted Transfers 32
Section 8.03   Registration of Transfers 33
Article IX [RESERVED] 33
Article X LIMITATION ON LIABILITY, EXCULPATION AND INDEMNIFICATION 33
Section 10.01   Limitation on Liability 33
Section 10.02   Exculpation and Indemnification 33
Article XI DISSOLUTION AND TERMINATION 36
Section 11.01   Dissolution 36
Section 11.02   Winding Up of the Company 36
Section 11.03   Termination