Form SC 13D Edgewise Therapeutics, Filed by: Novo Holdings A/S

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.     )*

 

 

Edgewise Therapeutics, Inc.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

28036F 105

(CUSIP Number)

Peter Haahr

Novo Holdings A/S

Tuborg Havnevej 19

Hellerup, Denmark DK-2900

+45 3527 6592

Copy to:

B. Shayne Kennedy, Esq.

Latham & Watkins LLP

650 Town Center Drive, 20^th Floor

Costa Mesa, CA 92626

Telephone: (714) 540-1235

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

March 25, 2020

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.  ☐

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

 

 

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

CUSIP No.: 28036F 105

 

1.		Name of Reporting Person:     Novo Holdings A/S
2.		Check the Appropriate Box if a Member of Group (See Instructions):   (a)  ☐        (b)  ☐
3.		SEC Use Only:
4.		Source of Funds:     WC
5.		Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e):     ☐
6.		Citizenship or Place of Organization:     Denmark

Number of Shares  Beneficially  Owned By Each Reporting Person With:				7.		Sole Voting Power:     5,587,207 (1)
				8.		Shared Voting Power:     0
				9.		Sole Dispositive Power:     5,587,207 (1)
				10.		Shared Dispositive Power:     0

11.		Aggregate Amount Beneficially Owned by Each Reporting Person:     5,587,207 (1)
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares:     ☐
13.		Percent of Class Represented By Amount In Row (11):     11.4% (2)
14.		Type of Reporting Person:     CO

 

(1)	Includes purchase of shares of Common Stock in the Issuer’s initial public offering (the “IPO”).

(2)

Based upon 49,217,048 shares of the Issuer’s Common Stock outstanding after the Issuer’s IPO, as reported in the Issuer’s prospectus pursuant to rule 424(b)(4) filed with the Securities and Exchange Commission (“SEC”) on March 26, 2021, which includes the exercise of the underwriters’ over-allotment option in connection with the IPO, as reported in the Issuer’s 8-K filed with the SEC on March 30, 2021.

 

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Item 1.

Security and Issuer

This Schedule 13D relates to the common stock, par value $0.0001 per share (the “Common Stock”), of Edgewise Therapeutics, Inc., a Delaware corporation (the “Issuer”). The Issuer’s principal executive office is located at 3415 Colorado Ave., Boulder, Colorado 80303.

 

Item 2.

Identity and Background

 

(a)

Novo Holdings A/S is a Danish limited liability company that is wholly owned by Novo Nordisk Foundation (the “Foundation”), a Danish commercial foundation. Novo Holdings A/S is the holding company in the group of Novo companies (currently comprised of Novo Nordisk A/S and Novozymes A/S) and is responsible for managing the Foundation’s assets, including its financial assets. Based on the governance structure of Novo Holdings A/S and the Foundation, the Foundation is not deemed to have any beneficial ownership of the securities of the Issuer held by Novo Holdings A/S. Kenneth Harrison, Ph.D. is employed as a partner at Novo Ventures (US), Inc., which provides certain consultancy services to Novo Holdings A/S. Dr. Harrison was designated to the board of directors of the Issuer by Novo Holdings A/S in August 2019. Dr. Harrison is not deemed to be a beneficial owner of the securities held by Novo Holdings A/S.

The name of each director and executive officer of both Novo Holdings A/S and the Foundation is set forth on Schedule I to this Schedule 13D.

 

(b)

The business address of both Novo Holdings A/S and the Foundation is Tuborg Havnevej 19, 2900 Hellerup, Denmark.

The residence or business address of each director and executive officer of both Novo Holdings A/S and the Foundation is set forth on Schedule I to this Schedule 13D.

 

(c)

Novo Holdings A/S, a holding company that is responsible for managing the Foundation’s assets, provides seed and venture capital to development stage companies and invests in well-established companies within the life science and biotechnology sector.

The Foundation is a Danish self-governing and profit-making foundation, whose objectives are to provide a stable basis for commercial and research activities undertaken by the group of Novo companies and to support scientific, humanitarian and social purposes through grants.

 

(d)

Within the last five years, neither Novo Holdings A/S, the Foundation, nor any person named in Schedule I has been convicted in any criminal proceedings.

 

(e)

Within the last five years, neither Novo Holdings A/S, the Foundation, nor any person named in Schedule I was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3.

Source and Amount of Funds or Other Consideration

Prior to the Issuer’s IPO, Novo Holdings A/S acquired the following securities of the Issuer:

 

(i)

In August 2019, Novo Holdings A/S purchased 4,466,945 shares of Series B-1 convertible preferred stock of the Issuer for $1.679 per share and an aggregate purchase price of approximately $7.5 million. The purchase price for these shares was paid by Novo Holdings A/S from its working capital.

 

(ii)

In August 2020, Novo Holdings A/S purchased 3,696,402 shares of Series B-2 convertible preferred stock of the Issuer for $2.029 per share and an aggregate purchase price of approximately $7.5 million. The purchase price for these shares was paid by Novo Holdings A/S from its working capital.

 

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(iii)

In December 2020, Novo Holdings A/S purchased 1,231,216 shares of Series C convertible preferred stock of the Issuer for $3.8735 per share and an aggregate purchase price of approximately $4.7 million. The purchase price for these shares was paid by Novo Holdings A/S from its working capital.

 

(iv)

On March 19, 2021, the Issuer effected a reverse stock split wherein each outstanding share was converted to 0.5282 shares. Following this reverse stock split, Novo Holdings A/S held a total 4,962,207 shares of convertible preferred stock, comprised of 2,359,440 shares of Series B-1 convertible preferred stock, 1,952,439 shares of Series B-2 convertible preferred stock and 650,328 shares of Series C convertible preferred stock. Each share of convertible preferred stock converts into one share of Common Stock upon the completion of the Issuer’s IPO.

On March 30, 2021, the closing date of the IPO:

 

(i)

Novo Holdings A/S acquired an aggregate of 4,962,207 shares of Common Stock upon the automatic conversion of the convertible preferred stock that occurred upon the closing of the IPO; and

 

(ii)

Novo Holdings A/S purchased 625,000 shares of Common Stock from the underwriters (the “IPO Shares”) at $16.00 per share for an aggregate purchase price of $10 million pursuant to the provisions of the Underwriting Agreement among the Issuer and the several underwriters for the IPO. The purchase price of the IPO Shares was paid by Novo Holdings A/S from its working capital.

 

(iii)

Following these purchases in the IPO, Novo Holdings A/S held a total of 5,587,207 shares of Common Stock.

 

Item 4.

Purpose of Transaction

The acquisitions of Issuer securities made by Novo Holdings A/S, as described in this Schedule 13D, were for investment purposes. Novo Holdings A/S intends to review its investments in the Issuer on a continuing basis and any actions Novo Holdings A/S might undertake will be dependent upon its review of numerous factors from time to time, including, but not limited to: an ongoing evaluation of the Issuer’s business, financial condition, operations and prospects; price levels of the Issuer’s securities; general market, industry and economic conditions; the relative attractiveness of alternative business and investment opportunities; and other future developments. Novo Holdings A/S may, at any time and from time to time, acquire additional securities of the Issuer, or retain or sell all or a portion of the securities of the Issuer then held, in the open market or in privately negotiated transactions. Kenneth Harrison, Ph.D. is employed as a partner at Novo Ventures (US), Inc., which provides certain consultancy services to Novo Holdings A/S. Dr. Harrison was designated to the board of directors of the Issuer by Novo Holdings A/S in August 2019. Dr. Harrison is not deemed to be a beneficial owner of the securities held by Novo Holdings A/S. Dr. Harrison may engage in communications with the Issuer’s other directors and members of management, and stockholders and third parties regarding the corporate governance, business, operations, strategy or future plans (including proposed corporate transactions of a significant nature) of the Issuer, including any plans or proposals regarding the same. Other than as described herein, Novo Holdings A/S currently does not have any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a)–(j) of Schedule 13D, although, depending on the factors discussed herein, Novo Holdings A/S may review or reconsider or change its purpose or formulate different plans, strategies, or proposals with respect thereto at any time.

 

Item 5.

Interest in Securities of the Issuer

(a)    Novo Holdings A/S beneficially owns 5,587,207 shares of Common Stock (the “Novo Shares”) representing approximately 11.4% of the Issuer’s outstanding shares of Common Stock, based upon 49,217,048 shares of the Issuer’s Common Stock outstanding after the Issuer’s IPO, as reported in the Issuer’s prospectus pursuant to rule 424(b)4 filed with the SEC on March 26, 2021, which includes the exercise of the underwriters’ over-allotment option in connection with the IPO, as reported in the Issuer’s 8-K filed with the SEC on March 30, 2021.

 

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(b)    Novo Holdings A/S is a Danish limited liability company wholly owned by the Novo Nordisk Foundation. Novo Holdings A/S, through its Board of Directors (the “Novo Board”), has the sole power to vote and dispose of the Novo Shares. The Novo Board may exercise voting and dispositive control over the Novo Shares with approval by a majority of the Novo Board. As such, no individual member of the Novo Board is deemed to hold any beneficial ownership or reportable pecuniary interest in the Novo Shares. Except as described above regarding the Novo Board, neither the Foundation nor any person listed on Schedule I has the power to direct the vote as to, or the disposition of, the Novo Shares.

(c) Except as described herein, Novo Holdings A/S has not effected any transactions in the Issuer’s Common Stock within the past 60 days and neither the Foundation nor any person listed on Schedule I has effected any transactions in the Issuer’s Common Stock within the past 60 days.

(d) Novo Holdings A/S does not know of any other person having the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Novo Shares.

(e) Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Pursuant to the terms of an Amended and Restated Investors’ Rights Agreement with the Issuer dated December 3, 2020, certain holders of the Issuer’s Common Stock, including Novo Holdings A/S, are entitled to rights with respect to the registration of their shares of Common Stock (the “registerable securities”) under the Securities Act of 1933, as amended. Beginning 180 days after the completion of the IPO, the holders of at least 30% of the then-outstanding registrable securities have demand rights to request the registration on Form S-1 of their registrable securities, provided the anticipated aggregate offering price, net of selling expenses, is at least $20 million. In addition, the holders of the then-outstanding registrable securities can request that the Issuer register all or part of their shares on Form S-3 if the Issuer is eligible to file a registration statement on Form S-3 and if the aggregate price to the public of the shares offered is at least $1 million. The stockholders may make an unlimited number of requests for registration on Form S-3, however the Issuer will not be required to effect a registration statement on Form S-3 if it has effected two such registration statements within the 12-month period preceding the date of the request. If the Issuer registers any of its securities for public sale, holders of then-outstanding registrable securities or their permitted transferees will have the right to include their registrable securities in such registration statement, subject to certain exclusions. All of these registration rights will expire, with respect to any particular holder, on the earliest to occur of (a) four years following the completion of the Issuer’s IPO and (b) at such time that all of the holder’s registrable securities equal less than 1% of the outstanding securities of the Issuer and can be sold without limitation in any ninety-day period without registration in compliance with Rule 144.

In addition, the Issuer, its directors and officers, and the holders of substantially all of its outstanding securities, including Novo Holdings A/S, entered into lock-up agreements, pursuant to which they agreed with the underwriters that, for a period of 180 days following the date of the prospectus in connection with the IPO, subject to certain exceptions, they will not, directly or indirectly, offer, sell, contract to sell, pledge, grant any option to purchase, lend or otherwise dispose of any shares of Common Stock, or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock or engage in any hedging or other transaction or arrangement which is designed to, or which reasonably could be expected to lead to or result in a sale, loan, pledge or other disposition or transfer of any of the economic consequences of ownership, in whole or in part, directly or indirectly, of any lock-up securities.

The descriptions of the Amended and Restated Investors’ Rights Agreement and the Lock-Up Agreement in this Item 6 of the Schedule 13D are summaries only and are qualified in their entireties by the actual terms of each such agreement, which are incorporated herein by reference. See Item 7 “Material to be Filed as Exhibits.”

 

Item 7.

Material to be Filed as Exhibits

Amended and Restated Investors’ Rights Agreement, dated as of December 3, 2020 (incorporated by reference to Exhibit 4.1 to the Issuer’s Registration Statement on Form S-1 filed with the SEC on March 5, 2021).

 

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Exhibit 99.1		Form of Lock-Up Agreement between Novo Holdings A/S and the Underwriters.

 

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SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: March 31, 2021				Novo Holdings A/S
				/s/ Peter Haahr
				By:		Peter Haahr
				Its:		Chief Financial Officer

Schedule I

Information regarding each director and executive officer of both Novo Holdings A/S and the Novo Nordisk Foundation is set forth below.

 

Novo Holdings A/S
Name, Title		Address		Principal Occupation		Citizenship
Lars Rebien Sørensen, Chairman of the Board		Christianholms Tværvej 27, 2930 Klampenborg Denmark		Professional Board Director		Denmark
Steen Riisgaard, Vice Chairman of the Board		Hestetangsvej 155, 3520 Farum, Denmark		Professional Board Director		Denmark
Jean-Luc Butel, Director		235 Arcadia Road unit # 10-3 289843 Singapore		Global Healthcare Advisor, President, K8 Global Pte Ltd.		Singapore
Jeppe Christiansen, Director		c/o Kasper Fonager Christiansen Classensgade 59, 5. th. 2100 Kobenhavn Ø Denmark		Chief Executive Officer, Fondsmaeglerselskabet Maj Invest A/S		Denmark
Francis Michael Cyprian Cuss, Director		111 Rippling Brook Way, Bernardsville, NJ 07924 USA		Former Executive Vice President and Chief Scientific Officer of Bristol-Myers Squibb		United Kingdom
Viviane Monges, Director		Chemin de Craivavers 32, 1012 Lausanne, Switzerland		Professional Board Director		France
Henrik Poulsen, Director		Emiliekildevej 36 2930 Klampenborg Denmark		Professional Board Director and Senior Advisor, A.P. Møller Holding A/S,		Denmark
Poul Carsten Stendevad, Director		3220 Idaho Ave NW Washington, DC 20016 USA		Senior Fellow, Bridgewater Associates		Denmark
Kasim Kutay, Chief Executive Officer of Novo Holdings A/S		Bredgade 65, 3.tv. 1260 Copenhagen K. Denmark		Chief Executive Officer of Novo Holdings A/S		United Kingdom
Peter Haahr, Chief Financial Officer of Novo Holdings A/S		Ordrup Have 21 2920 Charlottenlund Denmark		Chief Financial Officer of Novo Holdings A/S		Denmark

 

Novo Nordisk Foundation
Name, Title		Address		Principal Occupation		Citizenship
Lars Rebien Sørensen, Chairman of the Board		Christianholms Tværvej 27 2930 Klampenborg Denmark		Professional Board Director		Denmark

Novo Nordisk Foundation
Name, Title		Address		Principal Occupation		Citizenship
Marianne Philip, Vice Chairman of the Board		Annasvej 28 2900 Hellerup Denmark		Attorney		Denmark
Steen Riisgaard, Director		Hestetangsvej 155 3520 Farum Denmark		Professional Board Director		Denmark
Mads Krogsgaard Thomsen, Chief Executive Officer		Præstevejen 38 3230 Græsted Denmark		Chief Executive Officer, Novo Nordisk Foundation		Denmark
Anne Marie Kverneland, Director		Nybrovej 216 2800 Kgs. Lyngby Denmark		Laboratory technician, Novo Nordisk A/S		Denmark
Lars Bo Køppler, Director		Anemonevej 7 3550 Slangerup Denmark		Technician, Novozymes A/S		Denmark
Lars Henrik Fugger, Director		72 Staunton Road, Headington Great Britain		Professor, John Radcliffe Hospital, University of Oxford, Oxford, Great Britain		Denmark
Lars Henrik Munch, Director		Galionsvej 46 1437 Copenhagen K Denmark		Professional Board Director		Denmark
Mads Boritz Grøn, Director		Horsevænget 4 3400 Hillerød Denmark		Senior Lead Auditor		Denmark
Liselotte Højgaard, Director		Grønningen 21 1270 Copenhagen K Denmark		Professor		Denmark

Exhibit 99.1

Edgewise Therapeutics, Inc.

Lock-Up Agreement

                , 2021

Goldman Sachs & Co. LLC

J.P. Morgan Securities LLC

SVB Leerink LLC

c/o Goldman Sachs & Co. LLC

200 West Street

New York, NY 10282-2198

c/o J.P. Morgan Securities LLC

560 Mission Street, 26th Floor

San Francisco, CA 94105

c/o SVB Leerink LLC

1301 Avenue of the Americas, 12th Floor

New York, New York 10019

 

Re:

Edgewise Therapeutics, Inc. - Lock-Up Agreement (this “Lock-Up Agreement”)

Ladies and Gentlemen:

The undersigned understands that Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and SVB Leerink LLC, as representatives (the “Representatives”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with Edgewise Therapeutics, Inc., a Delaware corporation (the “Company”), providing for a public offering (the “Public Offering”) of shares of the Common Stock of the Company (the “Shares”) pursuant to a Registration Statement on Form S-1 to be filed with the Securities and Exchange Commission (the “SEC”).

In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date of this Lock-Up Agreement and continuing to and including the date 180 days after the date set forth on the final prospectus (the “Prospectus”) used to sell the Shares (the “Lock-Up Period”), subject to the exceptions set forth in this Lock-Up Agreement, the undersigned shall not, and shall not cause or direct any of its affiliates to, (i) offer, sell, contract to sell, pledge, grant any option to purchase, lend or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company (such options, warrants or other securities, collectively, “Derivative Instruments”), including without limitation any such shares or Derivative Instruments now owned or hereafter acquired by the undersigned, (ii) engage in any hedging or other transaction or arrangement (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative

transaction or instrument, however described or defined) which is designed to, or which reasonably could be expected to lead to or result in a sale, loan, pledge or other disposition (whether by the undersigned or someone other than the undersigned), or transfer of any of the economic consequences of ownership, in whole or in part, directly or indirectly, of any shares of Common Stock of the Company or Derivative Instruments, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Common Stock or other securities, in cash or otherwise (any such sale, loan, pledge or other disposition, or transfer of economic consequences, a “Transfer”) or (iii) otherwise publicly announce any intention to engage in or cause any action or activity described in clause (i) above or transaction or arrangement described in clause (ii) above. The undersigned represents and warrants that the undersigned is not, and has not caused or directed any of its affiliates to be or become, currently a party to any agreement or arrangement that provides for, is designed to or which reasonably could be expected to lead to or result in any Transfer during the Lock-Up Period. If the undersigned is a director or officer of the Company, the undersigned agrees that the foregoing provisions shall be equally applicable to any issuer-directed or other Shares the undersigned may purchase in the Public Offering. In addition, the undersigned agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any Shares or any security convertible into or exercisable or exchangeable for Shares.

If the undersigned is not a natural person, the undersigned represents and warrants that no single natural person, entity or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than the undersigned, beneficially owns, directly or indirectly, 50% or more of the Shares, or 50% or more of the voting power in the Shares, held by the undersigned.

If the undersigned is an officer or director of the Company, (i) the Representatives agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a Transfer of shares of Common Stock, the Representatives will notify the Company of the impending release or waiver, and (ii) the Company has agreed or will agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a Transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the Transfer.

Notwithstanding the foregoing, the undersigned may:

(a) Transfer the undersigned’s shares of Common Stock or Derivative Instruments of the Company without the consent of the Representatives:

(i) as a bona fide gift or gifts, including without limitation to a charitable organization or educational institution, or for bona fide estate planning purposes;

(ii) to any member of the undersigned’s immediate family or to any trust or other legal entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned;

(iii) by will, other testamentary document or the laws of intestate succession;

 

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(iv) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a beneficiary of such trust;

(v) to a partnership, limited liability company or other entity of which the undersigned is the legal and beneficial owner of all of the outstanding equity securities or similar interests;

(vi) to a custodian of a person or entity to whom a disposition or Transfer would be permissible under clauses (i) through (v) above;

(vii) by operation of law pursuant to a qualified domestic order, divorce settlement, divorce decree or domestic separation agreement;

(viii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution, Transfer or disposition without consideration by the undersigned to its stockholders, partners, members or other equity holders;

(ix) in transactions consisting of shares of Common Stock or such Derivative Instruments that the undersigned may purchase (A) from the Underwriters in the Public Offering or (B) in open market transactions after the date set forth on the cover of the Prospectus;

(x) the receipt by the undersigned from the Company of shares of Common Stock upon the exercise of options or the settlement of restricted stock units granted under a stock incentive plan or other equity award plan, which plan is described in the Prospectus, provided that any shares of Common Stock or Derivative Instruments received as a result of such exercise, vesting or settlement shall remain subject to the terms of this Lock-Up Agreement;

(xi) (A) to the Company for the purposes of exercising (including for the payment of tax withholdings or remittance payments due as a result of such exercise) on a “net exercise” or “cashless” basis options or other rights to purchase shares of Common Stock and (B) in connection with the vesting or settlement of restricted stock units, any Transfer to the Company for the payment of tax withholdings or remittance payments due as a result of the vesting or settlement of such restricted stock units, in all such cases, pursuant to equity awards granted under a stock incentive plan or other equity award plan, which plan is described in the Prospectus, provided that any shares of Common Stock or Derivative Instruments received as a result of such exercise, vesting or settlement shall remain subject to the terms of this Lock-Up Agreement;

(xii) the Transfer of shares of Common Stock or Derivative Instruments to the Company pursuant to agreements under which the Company or any of its respective equity holders has the option to repurchase such shares of Common Stock or Derivative Instruments upon death, disability or termination of service of the undersigned;

 

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(xiii) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock involving a Change of Control of the Company, provided that in the event that such Change of Control is not completed, the undersigned’s Common Stock and Derivative Instruments shall remain subject to the provisions of this Lock-Up Agreement; and

(xiv) in connection with the conversion of the outstanding preferred stock into shares of Common Stock as disclosed in the Prospectus, provided that any such shares of Common Stock received upon such conversion shall be subject to the terms of this Lock-Up Agreement;

provided, that (1) in the case of any Transfer pursuant to clauses (i) through (viii) each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up agreement in the form of this Lock-Up Agreement and there shall be no further transfer of such Common Stock or Derivative Instruments and any such Transfer shall not involve a disposition for value, (2) in the case of any Transfer pursuant to clauses (i) through (vi), no filing under Section 16 of the Exchange Act or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock shall be required or shall be made voluntarily in connection with such Transfer during the Lock-Up Period (other than any required Form 5 filing, which shall clearly indicate in the footnotes thereto the nature and conditions of such Transfer); (3) in the case of any Transfer pursuant to clause (viii), no filing under Section 16 of the Exchange Act or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock shall be required or shall be made voluntarily in connection with such Transfer during the Lock-Up Period (other than any required filings on Form 13F, Schedule 13D (or 13D/A) or Schedule 13G (or 13G/A); and (4) in the case of (x), (xi), (xii), (xiv) above, it shall be a condition to such Transfer that no filing under Section 16(a) of the Exchange Act or other public filing shall be voluntarily made and, if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Lock-Up Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer; or

(b) Enter into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act after the date of this Lock-up Agreement relating to the sale of the Undersigned’s shares of Common Stock, provided that (i) the securities subject to such plan may not be Transferred until after the expiration of the Lock-Up Period and (ii) no public announcement or filing under the Exchange Act shall be required or voluntarily made regarding the establishment of such plan during the Lock-Up Period.

For purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. For the purposes of this Lock-Up Agreement, “Change of Control” means the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction, the result of which is that any “person”(as defined in Section 13(d)(3) of the Exchange Act), or group of persons, other than the Company or its subsidiaries, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least 50% of the total voting power of the voting share capital of the Company.

 

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The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the Transfer of the undersigned’s shares of Common Stock of the Company except in compliance with the foregoing restrictions.

If the Representatives waive or terminate any of the foregoing restrictions in connection with a Transfer of capital stock of the Company, with respect to any of the securities of any executive officer or director of the Company or person that held at least 5.0% of the Common Stock and Derivative Instruments prior to the Public Offering (calculated on an as-converted, fully-diluted basis and as of the close of business on the date set forth on the Prospectus) (a “Triggering Release”), the provisions of this Lock-Up Agreement shall be waived or terminated, as applicable, to the same extent and on the same terms with respect to the same pro rata percentage of securities of the undersigned as the percentage of Common Stock being released in the Triggering Release represent with respect to the securities held by the applicable executive officer, director or 5% or greater stockholder. Notwithstanding the foregoing, no waiver or termination will constitute a Triggering Release, if (a) the aggregate fair market value of such releases to such security holders (whether in one or multiple releases) is less than or equal to 2.5% of the Common Stock and Derivative Instruments prior to the Public Offering (calculated on an as-converted, fully-diluted basis and as of the close of business on the date set forth on the Prospectus), (b)(i) if the release or waiver is effected solely to permit a Transfer not for consideration and (ii) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the Transfer, (c) such waiver or termination is granted due to circumstances of an emergency or hardship as determined by the Representatives in their sole judgment, or (d) such waiver or termination, in full or in part, is in connection with any underwritten public offering, whether or not such offering or sale is wholly or partially a secondary offering of the Common Stock during the Restricted Period (a “Follow-on Offering”); provided that the undersigned, to the extent the undersigned has a contractual right to demand or require the registration of the undersigned’s Common Stock or otherwise “piggyback” on a registration statement filed by the Company for the offer and sale of its Common Stock, (i) shall be offered the opportunity to participate on a pro rata basis consistent with such contractual rights in such Follow-on Offering and on pricing terms that are no less favorable than the terms of the Follow-on Offering or (ii) such contractual rights are waived pursuant to the terms thereof; and in the event the Underwriters make the determination to cut back the number of securities to be sold by stockholders in the Follow-on Offering, such cut back shall be on a basis consistent with such contractual rights.

The undersigned acknowledges and agrees that none of the Underwriters has made any recommendation or provided any investment or other advice to the undersigned with respect to this Lock-Up Agreement or the subject matter hereof, and the undersigned has consulted its own legal, accounting, financial, regulatory, tax and other advisors with respect to this Lock-Up Agreement and the subject matter hereof to the extent the undersigned has deemed appropriate. The undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Public Offering, the Representatives and the other Underwriters are not making a recommendation to you to participate in the Public Offering, enter into this Lock-Up Agreement, or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures is intended to suggest that the Representatives or any Underwriter is making such a recommendation.

This Lock-Up Agreement and any claim, controversy or dispute arising under or related to this Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

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Notwithstanding anything to the contrary contained herein, this Lock-Up Agreement will automatically terminate and the undersigned will be released from all of his, her or its obligations hereunder upon the earliest to occur, if any, of (i) prior to the execution of the Underwriting Agreement, the Company advises the Representatives in writing that it has determined not to proceed with the Public Offering, (ii) the Company files an application to withdraw the registration statement related to the Public Offering, (iii) the Underwriting Agreement is executed but is terminated (other than the provisions thereof which survive termination) prior to payment for and delivery of the Shares to be sold thereunder, or (iv) June 30, 2021, in the event that the Underwriting Agreement has not been executed by such date; provided, however, that the Company may, by written notice to you prior to such date, extend such date for a period of up to three additional months.

In the event that any Representative withdraws from or declines to participate in the Public Offering, all references to the Representatives contained in this Lock-Up Agreement shall be deemed to refer to the remaining Representatives that continue to participate in the Public Offering (the “Remaining Representatives”), and, in such event, any written consent, waiver or notice given or delivered in connection with this Lock-Up Agreement by the Remaining Representatives shall be deemed to be sufficient and effective for all purposes under this Lock-Up Agreement.

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement. This Lock-Up Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signature page follows]

 

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The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors, and assigns.

 

 

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