Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTH, INC. By Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. By: BOFA SECURITIES, INC. By By: XXXXXXX XXXXX & COMPANY, L.L.C. By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●], being an amount equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxxx Xxxxx & Company, L.L.C. [●] LifeSci Capital LLC [●] Total [●] 1. The Company is selling [●] shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $[●]. 1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●], 2020 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period): (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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned; (iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin); (iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned; (v) to the undersigned’s affiliates 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); (vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust; (vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or (viii) to the Company, to cover taxes due upon or the consideration required in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, provided that (A) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock options.
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTHSTERICYCLE, INC. By By: /s/ Xxx Xxxxxxxx Name: Xxx Xxxxxxxx Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIESXXXXXXX LYNCH, INCPIERCE, XXXXXX & XXXXX INCORPORATED XXXXXXX, SACHS & CO. XXXXXXX XXXXX & COMPANY, L.L.C. By: BOFA SECURITIES, INC. By X.X. XXXXXX SECURITIES LLC By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ E. Xxxxxx XxxXxxxxx Name: E. Xxxxxx XxxXxxxxx Title: Managing Director By: XXXXXXX, SACHS & COMPANY, L.L.C. By CO. By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Title: Managing Director By: X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxx Xxxx Name: Xxxxx Xxxx Title: Executive Director For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per depositary share for the Securities shall be $[●]100.00. The purchase price per depositary share for the Securities to be paid by the several Underwriters shall be $[●]97.00, being an amount equal to the initial public offering price set forth above less $[●] 3.00 per depositary share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,100,000 Xxxxxxx, Sachs & Co. 2,100,000 X.X. Xxxxxx Securities BofA SecuritiesLLC 1,050,000 HSBC Securities (USA) Inc. 700,000 Mitsubishi UFJ Securities (USA), Inc. [●] Xxxxxxx Xxxxx & Company262,500 Santander Investment Securities Inc. 262,500 SMBC Nikko Securities America, L.L.C. [●] LifeSci Capital LLC [●] Inc. 262,500 U.S. Bancorp Investments, Inc. 262,500 Total [●]7,000,000
1. The Company is selling [●] shares 7,000,000 depositary shares, each representing a 1/10th interest in a share of Common Preferred Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] shares 700,000 depositary shares, each representing a 1/10th interest in a share of Common Preferred Stock, to cover over-allotments.
3. The initial public offering price per depositary share for the Securities shall be $[●]100.00.
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●], 2020 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, provided that (A) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock options.
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTHINVEA THERAPEUTICS, INC. By Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANYCITIGROUP GLOBAL MARKETS INC. TRUIST SECURITIES, L.L.C. By: INC. BOFA SECURITIES, INC. By By: XXXXXXX XXXXX & COMPANYCITIGROUP GLOBAL MARKETS INC. By TRUIST SECURITIES, L.L.C. INC. By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●], being an amount equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxxx Xxxxx & Company, L.L.C. Citigroup Global Markets Inc. [●] LifeSci Capital Truist Securities, Inc. [●] ThinkEquity LLC [●] Total [●]
1. The Company is selling [●] shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●].. [●]
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●•], 2020 2023 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. as Representatives Representative of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx XxxxOne Bryant Park New York, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 New York 10036 Re: Proposed Initial Public Offering of Common Stock by Lucira HealthInvea Therapeutics, Inc. Dear Sirs/MadamsLadies and Gentlemen: The undersigned, a security holder, securityholder and/or an officer and/or a director, as applicable, of Lucira HealthInvea Therapeutics, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA” or the “Representative”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the initial public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 0.0001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, securityholder and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives Representative (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase purchase, lend or otherwise transfer or dispose of any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amendedamended (the “Securities Act”), (ii) enter into any swap hedging, swap, loan or any other agreement or any transaction (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward or any other derivative transaction or instrument, however described or defined) that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap hedging, swap, loan or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of the Common Stock of the CompanyStock), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuerCompany-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the CompanyStock), (1) the Representatives agree Representative agrees 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 the Common Stock, the Representatives Representative will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 Representative 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the RepresentativesRepresentative, as described below, provided that (1) the Representatives receive Representative receives a signed lock-up agreement in substantially the form of this lock-up agreement for the balance of the Lock-Up Period from each donee, devisee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 or Form 5 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or, in the case of clause (i), (ii), (iii) and (iv) below, any such filing shall clearly indicate in the footnotes thereto that the filing relates to circumstances described in such a clause, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period)::
(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) upon death or by willwxxx, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” of the undersigned shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousincousin of the undersigned);
(iii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement;
(iv) as pursuant to an order of a distribution to partners, members, managers, equity holders court or stockholders of regulatory agency having jurisdiction over the undersigned;
(v) to any corporation, partnership, limited liability company or other entity of which the undersigned or the immediate family of the undersigned is the legal and beneficial owner of all of the outstanding equity securities or similar interests;
(vi) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (v) above;
(vii) to any immediate family member or any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or one or more immediate family members of the undersigned’s affiliates , or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust;
(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 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 (viB) if as part of a distribution to limited partners, limited liability company members or stockholders of the undersigned is a trust, to a trustor, trustee or beneficiary holders of similar equity interests in the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlementundersigned; or
(viiiix) to the CompanyCompany upon the undersigned’s death, to cover taxes due upon disability or the consideration required in connection termination of employment or other service relationship with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, Company; provided that (A) any such shares of Common Stock received by were issued to the undersigned upon any such exercise pursuant to an agreement or vesting will be subject equity award granted pursuant to the terms of this lock-up agreement and (B) provided that an employee benefit plan, option, warrant or other right disclosed in the case of any transfer to prospectus for the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock optionsPublic Offering.
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTHINARI MEDICAL, INC. By Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXX XXXXXXX XXXXX & COMPANY, L.L.C. By: CO. LLC BOFA SECURITIES, INC. By By: XXXXXX XXXXXXX XXXXX & COMPANY, L.L.C. CO. LLC By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●], being an amount equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxx Xxxxxxx Xxxxx & Company, L.L.C. Co. LLC [●] LifeSci Capital Xxxxx Fargo Securities, LLC [●] Canaccord Genuity LLC [●] Total [●]
1. The Company is selling [●] shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●].. [●] Written Testing-the-Waters Communications
1. Investor Meetings Presentations dated February 4–20, 2020.
2. Investor Meetings Presentations dated May [●] FORM OF LOCK6-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●8], 2020 BofA Securities, Inc. Sch. B - 3
1. Xxxx Xxxxxx
2. Xxxxxx X. Xxxxx 3. Xxxxxx Xxxxxxxxxxxxx 4. Xxxxx Xxxxx 5. Xxxxxxxx Xxxxxxx Xxxxx & Company, L.L.C. as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx 6. Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx
7. Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, provided that (A) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock options.X. Xxx
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), each of the Underwriters are Agents is required to obtain, verify and record information that identifies their respective its clients, including the Company, which information may include the name and address of their respective its clients, as well as other information that will allow each of the Underwriters Agents to properly identify their respective its clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among between the Underwriters Agent and the Company in accordance with its termsterms as of the date first written above. Very truly yours, LUCIRA HEALTH, INC. By Crown Castle International Corp. By: Name: Title: CONFIRMED AND ACCEPTED, Accepted as of the date first above writtenhereof: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. [•] By: BOFA SECURITIESName: Title: [NAME OF PRINCIPAL] [ADDRESS OF PRINCIPAL] Ladies and Gentlemen: Crown Castle International Corp., INCa Delaware corporation (“Company”), proposes, subject to the terms and conditions stated herein and in that certain Sales Agreement, dated [•], 2018 (“Sales Agreement”), between the Company and [•] (“[•]”)], to issue and sell to [•] the shares of its Common Stock specified in Schedule I hereto (“Purchased Shares”). By By: XXXXXXX XXXXX & COMPANY[The Company also proposes to issue and sell to [•] the additional shares of Common Stock specified in Schedule I hereto (“Additional Shares”), L.L.C. By For themselves if and as Representatives to the extent that [•] shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Sales Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [•] and the latter agrees to purchase from the Company the number of the other Underwriters named Purchased Shares on the Settlement Date, at the time and place and at the purchase price (“Purchase Price”) set forth in Schedule A I hereto. The initial public offering price per share for [In addition, the Securities Company agrees to sell to [•] the Additional Shares, and [•] shall be $[●]. The have the right to purchase the Additional Shares at the same purchase price per share for the Securities Additional Share to be paid by [•] to the several Underwriters Company for the Purchased Shares, provided, however, that the amount per Share paid by [•] for any Additional Shares shall be $[●], being reduced by an amount per Share equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for any dividends or distributions declared by the Company and payable on the Initial Securities Purchased Shares but not payable on such Additional Shares. [•] may exercise this right in whole or from time to time in part by giving written notice not later than [30] days after the date hereof. Any exercise notice shall specify the number of Additional Shares to be purchased by [•] and the date and time when such Additional Shares are to be delivered (such date and time being herein referred to as the “Option Settlement Date”); provided, however, that the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxxx Xxxxx & Company, L.L.C. [●] LifeSci Capital LLC [●] Total [●]
1. The Company is selling [●] shares of Common Stock.
2. The Company has granted an option to Settlement Date shall not be earlier than the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock.
3. The initial public offering price per share Settlement Date for the Securities shall be $[●].
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●], 2020 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. Purchased Shares (as Representatives of the several Underwriters to be named set forth in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”Schedule I hereto), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, nor later than the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from fifth Business Day after the date of such written notice. Payment of the Underwriting Agreement Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same place as the payment for the Purchased Shares (the “Lock-Up Period”as set forth in Schedule I hereto). For purposes of clarity, the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) the Representatives parties hereto agree that, at least three business days before unless otherwise mutually agreed by the effective date parties in writing, any Option Settlement Date shall be a Settlement Date on which Shares are delivered to [•] as principal pursuant to a Terms Agreement within the meaning of any release or waiver Sections 3(o), 3(p) and 3(q) of the foregoing restrictions Sales Agreement.] The Purchased Shares [and any Additional Shares] shall be registered in connection with a transfer of shares of the Common Stock, the Representatives will notify the Company of the impending release or waiver, such names and (2) the Company has agreed 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 denominations as [•] shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed request in writing to be bound by the same terms described in this lock-up agreement not later than one Business Day prior to the extent and for Settlement Date [or the duration that such terms remain in effect at the time of the transfer. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transfereeapplicable Option Settlement Date, as the case may be]. The Purchased Shares [and any Additional Shares] shall be delivered to [•] on the Settlement Date [or an Option Settlement Date, (2) in as the case of may be,] with any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required payable in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan transfer of the Company described Shares to [•] duly paid. Each of the provisions of the Sales Agreement not specifically related to the solicitation by [•], as sales agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the prospectus same extent as if such provision had been set forth in full herein, mutatis mutandis. Each reference to the Prospectus (including any covenants or representations and warranties relating thereto) shall be deemed to refer to the Prospectus, as amended and supplemented to relate to the Purchased Shares [and the Additional Shares], and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Settlement Date [and any Option Settlement Date]. A[n amendment to the Registration Statement, or a] supplement to the Prospectus[, as the case may be,] relating to the Public OfferingPurchased Shares [and the Additional Shares], including through in the withholding of shares by, or surrender of shares to, form heretofore delivered to [•] is now proposed to be filed by the Company pursuant to a “net” or “cashless” exercise or settlement featurewith the Commission. THIS TERMS AGREEMENT AND ANY CLAIM, provided that (A) any shares CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. [Signature page follows.] If the foregoing is in accordance with your understanding of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement our agreement, please sign and (B) provided that in the case of any transfer return to the Company pursuant to a counterpart hereof, whereupon this clause (viii)Terms Agreement, any filing under Section 16(a) including those provisions of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to Sales Agreement incorporated herein by reference, will become a binding agreement between [•] and the Company relates to a “cashless” or “net” exercise in accordance with its terms as of stock options or a tax withholding in connection with the exercise date first written above. Very truly yours, Crown Castle International Corp. By: Name: Title: Accepted as of stock options or a tax withholding in connection with the exercise of stock options.date hereof: [•] By: Name: Title:
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), each of the Underwriters are Agents is required to obtain, verify and record information that identifies their respective its clients, including the Company, which information may include the name and address of their respective its clients, as well as other information that will allow each of the Underwriters Agents to properly identify their respective its clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among between the Underwriters Agent and the Company in accordance with its termsterms as of the date first written above. Very truly yours, LUCIRA HEALTH, INC. By Crown Castle Inc. By: Name: Title: CONFIRMED AND ACCEPTED, Accepted as of the date first above writtenhereof: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. [SALES AGENT] By: BOFA SECURITIESName: Title: [SALES AGENT] Ladies and Gentlemen: Crown Castle Inc., INCa Delaware corporation (“Company”), proposes, subject to the terms and conditions stated herein and in that certain Sales Agreement, dated March 20, 2024 (“Sales Agreement”), between the Company and [SALES AGENT] (“[SALES AGENT]”)], to issue and sell to [SALES AGENT] the shares of its Common Stock specified in Schedule I hereto (“Purchased Shares”). By By: XXXXXXX XXXXX & COMPANY[The Company also proposes to issue and sell to [SALES AGENT] the additional shares of Common Stock specified in Schedule I hereto (“Additional Shares”), L.L.C. By For themselves if and as Representatives to the extent that [SALES AGENT] shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Sales Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [SALES AGENT] and the latter agrees to purchase from the Company the number of the other Underwriters named Purchased Shares on the Settlement Date, at the time and place and at the purchase price (“Purchase Price”) set forth in Schedule A I hereto. The initial public offering price per share for [In addition, the Securities Company agrees to sell to [SALES AGENT] the Additional Shares, and [SALES AGENT] shall be $[●]. The have the right to purchase the Additional Shares at the same purchase price per share for the Securities Additional Share to be paid by [SALES AGENT] to the several Underwriters Company for the Purchased Shares; provided, however, that the amount per Share paid by [SALES AGENT] for any Additional Shares shall be $[●], being reduced by an amount per Share equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for any dividends or distributions declared by the Company and payable on the Initial Securities Purchased Shares but not payable on such Additional Shares. [SALES AGENT] may exercise this right in whole or from time to time in part by giving written notice not later than [30] days after the date hereof. Any exercise notice shall specify the number of Additional Shares to be purchased by [SALES AGENT] and the date and time when such Additional Shares are to be delivered (such date and time being herein referred to as the “Option Settlement Date”); provided, however, that the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxxx Xxxxx & Company, L.L.C. [●] LifeSci Capital LLC [●] Total [●]
1. The Company is selling [●] shares of Common Stock.
2. The Company has granted an option to Settlement Date shall not be earlier than the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock.
3. The initial public offering price per share Settlement Date for the Securities shall be $[●].
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●], 2020 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. Purchased Shares (as Representatives of the several Underwriters to be named set forth in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”Schedule I hereto), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, nor later than the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from fifth Business Day after the date of such written notice. Payment of the Underwriting Agreement Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same place as the payment for the Purchased Shares (the “Lock-Up Period”as set forth in Schedule I hereto). For purposes of clarity, the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) the Representatives parties hereto agree that, at least three business days before unless otherwise mutually agreed by the effective date parties in writing, any Option Settlement Date shall be a Settlement Date on which Shares are delivered to [SALES AGENT] as principal pursuant to a Terms Agreement within the meaning of any release or waiver Sections 3(o), 3(p) and 3(q) of the foregoing restrictions Sales Agreement.] The Purchased Shares [and any Additional Shares] shall be registered in connection with a transfer of shares of the Common Stock, the Representatives will notify the Company of the impending release or waiver, such names and (2) the Company has agreed 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 denominations as [SALES AGENT] shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed request in writing to be bound by the same terms described in this lock-up agreement not later than one Business Day prior to the extent and for Settlement Date [or the duration that such terms remain in effect at the time of the transfer. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transfereeapplicable Option Settlement Date, as the case may be]. The Purchased Shares [and any Additional Shares] shall be delivered to [SALES AGENT] on the Settlement Date [or an Option Settlement Date, (2) in as the case of may be,] with any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required payable in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan transfer of the Company described Shares to [SALES AGENT] duly paid. Each of the provisions of the Sales Agreement not specifically related to the solicitation by [SALES AGENT], as sales agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the prospectus same extent as if such provision had been set forth in full herein, mutatis mutandis. Each reference to the Prospectus (including any covenants or representations and warranties relating thereto) shall be deemed to refer to the Prospectus, as amended and supplemented to relate to the Purchased Shares [and the Additional Shares], and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Settlement Date [and any Option Settlement Date]. A[n amendment to the Registration Statement, or a] supplement to the Prospectus[, as the case may be,] relating to the Public OfferingPurchased Shares [and the Additional Shares], including through in the withholding of shares by, or surrender of shares to, form heretofore delivered to [SALES AGENT] is now proposed to be filed by the Company pursuant to a “net” or “cashless” exercise or settlement featurewith the Commission. THIS TERMS AGREEMENT AND ANY CLAIM, provided that (A) any shares CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. [Signature page follows.] If the foregoing is in accordance with your understanding of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement our agreement, please sign and (B) provided that in the case of any transfer return to the Company pursuant to a counterpart hereof, whereupon this clause (viii)Terms Agreement, any filing under Section 16(a) including those provisions of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to Sales Agreement incorporated herein by reference, will become a binding agreement between [SALES AGENT] and the Company relates to a “cashless” or “net” exercise in accordance with its terms as of stock options or a tax withholding in connection with the exercise date first written above. Very truly yours, Crown Castle Inc. By: Name: Title: Accepted as of stock options or a tax withholding in connection with the exercise of stock options.date hereof: [SALES AGENT] By: Name: Title:
Appears in 1 contract
Samples: Sales Agreement (Crown Castle Inc.)
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the CompanyCompany and the Selling Stockholders, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. [Remainder of the page intentionally left blank; signature page follows.] If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters Underwriters, the Company and the Company Selling Stockholders in accordance with its terms. Very truly yours, LUCIRA HEALTH, INC. By By: Name: Title: By: Name: Title: By: Name: Title: By: Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. By: BOFA SECURITIES, INC. By By: XXXXXXX XXXXX & COMPANY, L.L.C. By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●·]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●·], being an amount equal to the initial public offering price set forth above less $[●·] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated [·] Leerink Partners LLC [·] Xxxxx Fargo Securities, LLC [·] Guggenheim Securities, LLC [·] Xxxxxx, Xxxxxxxx & Company, Incorporated [·] Total [·] Inspire Medical Systems, Inc. [●·] Xxxxxxx Xxxxx & Company, L.L.C. [●·] LifeSci Capital LLC [●·] [·] 0 [·] [·] 0 [·] [·] 0 Total [●·] [·]
1. The Company is selling [●·] shares of Common Stock and the Selling Stockholders are selling [·] shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●·] shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●·].
1. Investor Meetings Presentations dated [●None] FORM OF LOCK-UP FROM DIRECTORSXxxxxxx Lynch, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●]Pierce, 2020 BofA Xxxxxx & Xxxxx Incorporated Leerink Partners LLC Xxxxx Fargo Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. LLC as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA SecuritiesMerrill Lynch, Inc. Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira HealthInspire Medical Systems, Inc. and Certain Selling Stockholders Dear Sirs/Madams: The undersigned, a security holderstockholder, and/or an officer and/or a director, as applicable, of Lucira HealthInspire Medical Systems, Inc., a Delaware corporation (the “Company”), understands that BofA SecuritiesXxxxxxx Lynch, Inc. (“BofA”) and Xxxxxxx Pierce, Xxxxxx & Xxxxx & Company, L.L.C. Incorporated (“Xxxxxxx Xxxxx” and”), together with BofALeerink Partners LLC (“Leerink”) and Xxxxx Fargo Securities, the LLC (“RepresentativesXxxxx Fargo”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and Company, the other underwriters party thereto (together with Xxxxxxx Xxxxx, Leerink and Xxxxx Fargo, the “Underwriters”) and certain stockholders of the Company, if any, providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holderstockholder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement Underwriter that, during the period beginning on the date hereof and ending on the date that is 180 90 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities may, without the prior written consent of the RepresentativesXxxxxxx Xxxxx:
(a) transfer Lock-Up Securities, provided that (1) the Representatives receive Xxxxxxx Xxxxx receives a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to clauses (i)-(vii) through (iv) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period)::
(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;; or
(ii) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership marriage or adoption, not more remote than first cousin);; or
(iviii) as a distribution to limited partners, members, managers, stockholders or other equity holders or stockholders of the undersigned;; or
(viv) to the undersigned’s affiliates or to any investment fund or other entity controllingthat, directly or indirectly, controls or manages, is controlled or managed by, managing or managed by or is under common control or management with, the undersigned; or
(v) by will or intestate succession upon the death of the undersigned, provided that, any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described above; or
(vi) pursuant to a court or regulatory agency order, a qualified domestic order or in connection with a divorce settlement;
(b) exercise any rights to purchase, exchange or convert any stock options granted to the undersigned or affiliates of pursuant to the undersigned (including, for Company’s equity incentive plans referred to in the avoidance of doubt, where prospectus relating to the undersigned is a partnership, to its general partner or a successor partnership or fundPublic Offering, or any warrants or other funds managed securities convertible into or exercisable or exchangeable for shares of Common Stock, which warrants or other securities are described in the prospectus relating to the Public Offering, provided that (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) the underlying shares of Common Stock continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such exercise during the Lock-Up Period;
(c) sell or otherwise transfer Lock-Up Securities to the Company in connection with the termination of the undersigned’s employment or other service with the Company, provided that, (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) no Lock-Up Securities were sold by the reporting person other than such partnershiptransfers to the Company as described above and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such transfers during the Lock-Up Period;
(d) transfer Lock-Up Securities pursuant to a bona fide third-party tender offer, or in connection with a merger, consolidation or other similar transaction 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 tender offer, merger, consolidation or other transaction is not completed, such securities shall remain subject to the restrictions on transfer set forth in this lock-up agreement (for purposes hereof, “change of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock of the Company if, after such transaction or transactions, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities of the Company (or the surviving entity));
(vie) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or transfer Lock-Up Securities to the estate Company upon (i) a vesting event of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required in connection with the vesting, conversion or exercise of securities issued equity award granted under an any equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through or (ii) upon the withholding exercise by the undersigned of shares byoptions or warrants in accordance with clause (b) above, or surrender of shares toin each case, the Company pursuant to on a “net” or “cashless” exercise or settlement featurebasis, provided and/or to cover tax withholding obligations of the undersigned in connection therewith, provided, in each case, that (A1) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) 16 of the Exchange Act made during the Lock-Up Period shall state clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above, as applicable, and (B) no Lock-Up Securities were sold by the reporting person other than such transfer transfers to the Company as described above and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such transfers during the Lock-Up Period;
(f) sell or transfer Lock-Up Securities pursuant to a 10b5-l trading plan that complies with Rule 10b5-l under the Exchange Act (“10b5-l Trading Plan”) that has been entered into by the undersigned prior to the date of this lock-up agreement, provided that (x) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described above and (y) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales or transfers during the Lock-Up Period; and
(g) sell or transfer Lock-Up Securities to the Underwriters pursuant to the Underwriting Agreement.
(i) Notwithstanding anything herein to the contrary, nothing in this lock-up agreement shall prevent the undersigned from establishing a “cashless” 10b5-l Trading Plan or “net” exercise from amending an existing 10b5-l Trading Plan so long as there are no sales of stock options Lock-Up Securities under such plan during the Lock-Up Period; provided that, the establishment of a 10b5-1 Trading Plan or the amendment of a tax withholding 10b5-l Trading Plan, in either case, providing for sales of Lock-Up Securities shall only be permitted if (i) the establishment or amendment of such plan is not required to be reported in any public report or filing with the Commission, or otherwise during the Lock-Up Period, and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding the establishment or amendment of such plan during the Lock-Up Period; and provided further, that if an amendment to a 10b5-1 Trading Plan (which 10b5-1 Trading Plan was entered into prior to the date of this lock-up agreement) does not increase the number of Lock-Up Securities that may be sold by the undersigned during the Lock-Up Period, the undersigned will not be prevented from selling Lock-Up Securities under such 10b5-1 Trading Plan during the Lock-Up Period to the extent such sales would otherwise be permitted by this paragraph. Furthermore, the undersigned may sell shares of the Common Stock purchased by the undersigned from the Underwriters in the Public Offering or on the open market following the Public Offering if and only if (i) such sales are not required to be reported during the Lock-Up Period in any public report or filing with the Commission or otherwise, and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales during the Lock-Up Period. 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 Lock-Up Securities except in compliance with the foregoing restrictions.
(a) if the waiver is effected solely to permit a transfer not involving a disposition for value 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, or (3) if the waiver is granted to a holder of Lock-Up Securities in connection with a follow-on public offering of the exercise of stock options or Company’s securities pursuant to a tax withholding in connection registration statement on Form S-1 that is filed with the exercise of stock options.Commission, provided that such waiver shall only apply with respect to such holder’s participation in such follow-on public sale. In the
Appears in 1 contract
Samples: Underwriting Agreement (Inspire Medical Systems, Inc.)
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTH, INC. By SOUTHWESTERN ENERGY COMPANY By: /s/ R. Xxxxx Xxxx Title: Senior Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. By: BOFA SECURITIES, INC. By By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX & COMPANY, L.L.C. By INCORPORATED By: /s/ Xxxxxxx Xxxxx Xxx Xxxxx For themselves itself and as Representatives Representative of the other Underwriters named in Schedule A hereto. [Signature Page to Underwriting Agreement] The initial public offering price per share for the Securities shall be $[●]. 23.00 The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●]22.31, being an amount equal to the initial public offering price set forth above less $[●] 0.69 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 10,017,396 Citigroup Global Markets Inc. 2,934,784 X.X. Xxxxxx Securities LLC 2,934,784 Xxxxx Fargo Securities, LLC 2,934,784 BMO Capital Markets Corp. 847,826 BNP Paribas Securities Corp. 521,739 Mitsubishi UFJ Securities (USA), Inc. 521,739 Mizuho Securities USA Inc. 639,130 RBS Securities Inc. 913,043 SMBC Nikko Securities America, Inc. 639,130 BBVA Securities Inc. 352,173 Credit Agricole Securities (USA) Inc. 352,173 RBC Capital Markets, LLC 339,130 CIBC World Markets Corp. 208,695 SG Americas Securities, LLC 208,695 BB&T Capital Markets, a division of BB&T Securities, LLC 143,478 Comerica Securities, Inc. [●] 143,478 Fifth Third Securities, Inc. 143,478 Xxxxxxxxx Energy Securities, LLC 143,478 HSBC Securities (USA) Inc. 143,478 KeyBanc Capital Markets Inc. 143,478 Macquarie Capital (USA) Inc. 143,478 Xxxxx Xxxxxxx & Co. 143,478 PNC Capital Markets LLC 143,478 Xxxxxx X. Xxxxx & CompanyCo. Incorporated 143,478 Scotia Capital (USA) Inc. 143,478 Tudor, L.L.C. [●] LifeSci Capital LLC [●] Pickering, Xxxx & Co. Securities, Inc. 143,478 Total [●]26,086,957
1. The Company is selling [●] 26,086,957 shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●] 3,913,043 shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●].
123.00. Investor Meetings Presentations Final Term Sheet dated [●] FORM OF LOCK-UP FROM DIRECTORSJanuary 14, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k2015 (Schedule D) FORM OF LOCK-UP AGREEMENT [●]Xxxx X. Xxxx Xxxxxxxxx X. Xxxx Xxxx X. Xxxxxx Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx Xxxxxxx Xxx Xxxxx X. Xxxxxxx Xxxx X. Xxxxxxx Xxxxxxx X. Way Xxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx R. Xxxxx Xxxx Xxxx X. Ale Xxxxxxxx X. XxXxxxxx Xxxxx X. Xxxx Xxxxx X. Xxxxxxxx, 2020 BofA Securities, Inc. Xx. J. Xxxx Xxxxxxxxxxxx Xxxxxxx Xxxxx & Company, L.L.C. as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx X. Xxxxxx Xxxx X. Xxxxxxxx Xxx Xxxx, Xxx X. Xxxxxx Xxxxxx X. Xxxxxx Xxxx 00000 c/o X. Xxxxxx Xxxxx X. Xxxxx Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Van Slambrouck Xxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, provided that (A) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock options.
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTHMINERALYS THERAPEUTICS, INC. By Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXXX XXXXX EVERCORE GROUP L.L.C. XXXXXX, XXXXXXXX & COMPANY, L.L.C. By: INCORPORATED BOFA SECURITIES, INC. By By: XXXXXXX XXXXX EVERCORE GROUP L.L.C. By XXXXXX, XXXXXXXX & COMPANY, L.L.C. INCORPORATED By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●l]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●l], being an amount equal to the initial public offering price set forth above less $[●l] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●l] Xxxxxxx Xxxxx Evercore Group L.L.C. [l] Xxxxxx, Xxxxxxxx & Company, L.L.C. Incorporated [●l] LifeSci Capital Guggenheim Securities, LLC [●l] Total Credit Suisse Securities (USA) LLC [●l] Xxxxx Fargo Securities, LLC [l] [l]
1. The Company is selling [●l] shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●l] shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●l].
. [l] 1. Investor Meetings Presentations dated [●l] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) [Each of the Company’s directors and officers and [substantially] all of the holders of shares of Common Stock or any security convertible or exercisable for shares of Common Stock] FORM OF LOCK-UP AGREEMENT [●l], 2020 2022 BofA Securities, Inc. Xxxxxxx Xxxxx Evercore Group L.L.C. Xxxxxx, Xxxxxxxx & Company, L.L.C. Incorporated as Representatives of the several Underwriters to be named in the within-mentioned within‑mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx Evercore Group L.L.C. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 x/x Xxxxxx, Xxxxxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx XxxxxxxIncorporated Xxx Xxxxxxxxxx Xxxxxx, Xxxxxxxx 00000 Suite 3700 San Francisco, California 94104 Re: Proposed Public Offering by Lucira HealthMineralys Therapeutics, Inc. Dear Sirs/Madams: The undersigned, a security holderstockholder, and/or an officer and/or a director, as applicable, of Lucira HealthMineralys Therapeutics, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) Inc., Evercore Group L.L.C. and Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx & Company, L.L.C. Incorporated (“Xxxxxxx Xxxxx” and, together with BofAcollectively, the “Representatives”) and the other underwriters party thereto propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the initial public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 0.0001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holderstockholder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with the Representatives on behalf of each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of the Common Stock of the CompanyStock), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of the Common Stock of the CompanyStock), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or otherwise dispose of the Lock-Up Securities without the prior written consent of the Representatives, ,
(a) provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period)::
(i) as a bona fide gift or gifts, including, without limitation, including a bone fide gift or gifts to a trust, charitable organization or educational institution, institution or other entity established for bona fide estate planning charitable purposes;; or
(ii) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a any member of the immediately immediate family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to , any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);) or for bona fide estate planning purposes; or
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(viii) to the undersigned’s affiliates or to any investment fund or other entity controllingthat, directly or indirectly, controls or manages, is controlled or managed by, managing or managed by or is under common control with or management 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);undersigned; or
(viiv) if the undersigned is a trust, to a trustor, trustee the trustor or beneficiary of the such trust or to the estate of a trustor, trustee or beneficiary of such trust;; or
(v) to any corporation, partnership, limited liability company or other entity all of the beneficial interests of which, in each case, are held by the undersigned; or
(vi) as a distribution to general or limited partners, members, stockholders or other equity holders or trust beneficiaries of the undersigned; or
(vii) pursuant to any nominee or custodian of a domestic order person or negotiated divorce settlemententity to whom a transfer or disposition would be permissible under clauses (i) through (vi) above.
(b) provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee (excluding the Company), as the case may be, or, in the case of (iv) below, provided that any filing made pursuant such shares of the Common Stock issued to this clause (vii) the undersigned upon exercise of any such option, warrant or other right shall be pursuant subject to the restrictions set forth herein, (2) any filing under the Exchange Act required to be made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to circumstances described below, as applicable, and (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such domestic order transfers:
(i) by xxxx, other testamentary document or divorce settlementintestate succession to the legal representative, heir, beneficiary or any immediate family of the undersigned; or
(viiiii) pursuant to a court or regulatory agency order, a qualified domestic order or in connection with the dissolution of a marriage or civil union; or
(iii) to the Company (or surrender such Lock-Up Securities to the Company) pursuant to any contractual arrangement that provides the Company with an option to repurchase or reacquire such Lock-Up Securities in connection with the termination of the undersigned’s employment or other service relationship with the Company, or pursuant to cover taxes due upon a right of first refusal with respect to transfers of such Lock-Up Securities; provided that such Lock-Up Securities were issued to the undersigned pursuant to an agreement or equity award granted pursuant to an employee benefit plan, option, warrant or other right disclosed in the consideration required prospectus for the Public Offering; or
(iv) to the Company in connection with the vesting, conversion settlement, or exercise of securities issued restricted stock, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax obligations due as a result of the vesting, settlement, or exercise of such restricted stock, options, warrants or rights, provided that any such restricted stock, options, warrants or rights are held by the undersigned pursuant to an agreement or equity award granted pursuant to an employee benefit plan, option, warrant or other right disclosed in the prospectus for the Public Offering; or
(v) sales or dispositions of shares of Common Stock solely for the purpose of sufficiently covering tax obligations which arise from the vesting, settlement, or exercise of restricted stock, options, warrants or other rights to purchase shares of Common Stock, in all such cases pursuant to an agreement or equity awards granted pursuant to an employee benefit plan, option, warrant or other right disclosed in the prospectus for the Public Offering. Notwithstanding anything herein to the contrary, nothing herein shall prevent the undersigned from (i) exercising any outstanding warrant, or any option to purchase shares granted under an equity any stock incentive plan or stock purchase plan of the Company described disclosed in the prospectus relating to for the Public Offering, including through the withholding of shares by, or surrender of shares to, the Company pursuant to a “net” or “cashless” exercise or settlement feature, provided that (A1) any the underlying shares of Common Stock received by the undersigned upon any such exercise or vesting will shall continue to be subject to the terms of this lock-up agreement and (B) provided that in the case of any restrictions on transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to the Company relates to a “cashless” or “net” exercise of stock options or a tax withholding in connection with the exercise of stock options or a tax withholding in connection with the exercise of stock options.set forth
Appears in 1 contract
Samples: Underwriting Agreement (Mineralys Therapeutics, Inc.)
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), each of the Underwriters are Agents is required to obtain, verify and record information that identifies their respective its clients, including the Company, which information may include the name and address of their respective its clients, as well as other information that will allow each of the Underwriters Agents to properly identify their respective its clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among between the Underwriters Agent and the Company in accordance with its termsterms as of the date first written above. Very truly yours, LUCIRA HEALTH, INC. By Crown Castle International Corp. By: Name: Title: CONFIRMED AND ACCEPTED, Accepted as of the date first above writtenhereof: BOFA SECURITIES, INC. XXXXXXX XXXXX & COMPANY, L.L.C. [SALES AGENT] By: BOFA SECURITIESName: Title: [SALES AGENT] Ladies and Gentlemen: Crown Castle International Corp., INCa Delaware corporation (“Company”), proposes, subject to the terms and conditions stated herein and in that certain Sales Agreement, dated March 19, 2021 (“Sales Agreement”), between the Company and [SALES AGENT] (“[SALES AGENT]”)], to issue and sell to [SALES AGENT] the shares of its Common Stock specified in Schedule I hereto (“Purchased Shares”). By By: XXXXXXX XXXXX & COMPANY[The Company also proposes to issue and sell to [SALES AGENT] the additional shares of Common Stock specified in Schedule I hereto (“Additional Shares”), L.L.C. By For themselves if and as Representatives to the extent that [SALES AGENT] shall have determined to exercise its right to purchase such Additional Shares.] Subject to the terms and conditions set forth herein and in the Sales Agreement which are incorporated herein by reference, the Company agrees to issue and sell to [SALES AGENT] and the latter agrees to purchase from the Company the number of the other Underwriters named Purchased Shares on the Settlement Date, at the time and place and at the purchase price (“Purchase Price”) set forth in Schedule A I hereto. The initial public offering price per share for [In addition, the Securities Company agrees to sell to [SALES AGENT] the Additional Shares, and [SALES AGENT] shall be $[●]. The have the right to purchase the Additional Shares at the same purchase price per share for the Securities Additional Share to be paid by [SALES AGENT] to the several Underwriters Company for the Purchased Shares, provided, however, that the amount per Share paid by [SALES AGENT] for any Additional Shares shall be $[●], being reduced by an amount per Share equal to the initial public offering price set forth above less $[●] per share, subject to adjustment in accordance with Section 2(b) for any dividends or distributions declared by the Company and payable on the Initial Securities Purchased Shares but not payable on such Additional Shares. [SALES AGENT] may exercise this right in whole or from time to time in part by giving written notice not later than [30] days after the date hereof. Any exercise notice shall specify the number of Additional Shares to be purchased by [SALES AGENT] and the date and time when such Additional Shares are to be delivered (such date and time being herein referred to as the “Option Settlement Date”); provided, however, that the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. [●] Xxxxxxx Xxxxx & Company, L.L.C. [●] LifeSci Capital LLC [●] Total [●]
1. The Company is selling [●] shares of Common Stock.
2. The Company has granted an option to Settlement Date shall not be earlier than the Underwriters, severally and not jointly, to purchase up to an additional [●] shares of Common Stock.
3. The initial public offering price per share Settlement Date for the Securities shall be $[●].
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORS, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●], 2020 BofA Securities, Inc. Xxxxxxx Xxxxx & Company, L.L.C. Purchased Shares (as Representatives of the several Underwriters to be named set forth in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira Health, Inc. Dear Sirs/Madams: The undersigned, a security holder, and/or an officer and/or a director, as applicable, of Lucira Health, Inc., a Delaware corporation (the “Company”Schedule I hereto), understands that BofA Securities, Inc. (“BofA”) and Xxxxxxx Xxxxx & Company, L.L.C. (“Xxxxxxx Xxxxx” and, together with BofA, nor later than the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from fifth Business Day after the date of such written notice. Payment of the Underwriting Agreement Purchase Price for the Additional Shares shall be made at the Option Settlement Date in the same manner and at the same place as the payment for the Purchased Shares (the “Lock-Up Period”as set forth in Schedule I hereto). For purposes of clarity, the undersigned will not, without the prior written consent of the Representatives (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) the Representatives parties hereto agree that, at least three business days before unless otherwise mutually agreed by the effective date parties in writing, any Option Settlement Date shall be a Settlement Date on which Shares are delivered to [SALES AGENT] as principal pursuant to a Terms Agreement within the meaning of any release or waiver Sections 3(o), 3(p) and 3(q) of the foregoing restrictions Sales Agreement.] The Purchased Shares [and any Additional Shares] shall be registered in connection with a transfer of shares of the Common Stock, the Representatives will notify the Company of the impending release or waiver, such names and (2) the Company has agreed 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 denominations as [SALES AGENT] shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed request in writing to be bound by the same terms described in this lock-up agreement not later than one Business Day prior to the extent and for Settlement Date [or the duration that such terms remain in effect at the time of the transfer. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transfereeapplicable Option Settlement Date, as the case may be]. The Purchased Shares [and any Additional Shares] shall be delivered to [SALES AGENT] on the Settlement Date [or an Option Settlement Date, (2) in as the case of may be,] with any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to (i)-(vi) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):
(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) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
(iv) as a distribution to partners, members, managers, equity holders or stockholders of the undersigned;
(v) to the undersigned’s affiliates 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);
(vi) if the undersigned is a trust, to a trustor, trustee or beneficiary of the trust or to the estate of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlement, provided that any filing made pursuant to this clause (vii) shall be pursuant to such domestic order or divorce settlement; or
(viii) to the Company, to cover taxes due upon or the consideration required payable in connection with the vesting, conversion or exercise of securities issued under an equity incentive plan or stock purchase plan transfer of the Company described Shares to [SALES AGENT] duly paid. Each of the provisions of the Sales Agreement not specifically related to the solicitation by [SALES AGENT], as sales agent of the Company, of offers to purchase Shares is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the prospectus same extent as if such provision had been set forth in full herein, mutatis mutandis. Each reference to the Prospectus (including any covenants or representations and warranties relating thereto) shall be deemed to refer to the Prospectus, as amended and supplemented to relate to the Purchased Shares [and the Additional Shares], and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Settlement Date [and any Option Settlement Date]. A[n amendment to the Registration Statement, or a] supplement to the Prospectus[, as the case may be,] relating to the Public OfferingPurchased Shares [and the Additional Shares], including through in the withholding of shares by, or surrender of shares to, form heretofore delivered to [SALES AGENT] is now proposed to be filed by the Company pursuant to a “net” or “cashless” exercise or settlement featurewith the Commission. THIS TERMS AGREEMENT AND ANY CLAIM, provided that (A) any shares CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. [Signature page follows.] If the foregoing is in accordance with your understanding of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement our agreement, please sign and (B) provided that in the case of any transfer return to the Company pursuant to a counterpart hereof, whereupon this clause (viii)Terms Agreement, any filing under Section 16(a) including those provisions of the Exchange Act made during the Lock-Up Period shall state in the footnotes that such transfer to Sales Agreement incorporated herein by reference, will become a binding agreement between [SALES AGENT] and the Company relates to a “cashless” or “net” exercise in accordance with its terms as of stock options or a tax withholding in connection with the exercise date first written above. Very truly yours, Crown Castle International Corp. By: Name: Title: Accepted as of stock options or a tax withholding in connection with the exercise of stock options.date hereof: [SALES AGENT] By: Name: Title:
Appears in 1 contract
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, LUCIRA HEALTHINSPIRE MEDICAL SYSTEMS, INC. By Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIESXXXXXXX LYNCH, INCPIERCE, XXXXXX & XXXXX INCORPORATED By XXXXXXX SACHS & CO. XXXXXXX XXXXX & COMPANY, L.L.C. By: BOFA SECURITIES, INC. By By: XXXXXXX XXXXX & COMPANY, L.L.C. LLC By For themselves and as Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $[●·]. The purchase price per share for the Securities to be paid by the several Underwriters shall be $[●·], being an amount equal to the initial public offering price set forth above less $[●·] per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated [·] Xxxxxxx Sachs & Co. LLC [·] Guggenheim Securities, Inc. LLC [●·] Xxxxxxx Xxxxx Xxxxxx, Xxxxxxxx & Company, L.L.C. Incorporated [●·] LifeSci Capital Xxxxx Fargo Securities, LLC [●·] Total [●·]
1. The Company is selling [●·] shares of Common Stock.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [●·] shares of Common Stock.
3. The initial public offering price per share for the Securities shall be $[●·]. [None.
1. Investor Meetings Presentations dated [●] FORM OF LOCK-UP FROM DIRECTORSXxxxxxx Lynch, OFFICERS AND OTHER STOCKHOLDERS TO BE DELIVERED PURSUANT TO SECTION 5(k) FORM OF LOCK-UP AGREEMENT [●]Pierce, 2020 BofA Securities, Inc. Xxxxxx & Xxxxx Incorporated Xxxxxxx Xxxxx Sachs & Company, L.L.C. Co. LLC as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o BofA SecuritiesMerrill Lynch, Inc. Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Xxxxxxx Xxxxx & Company, L.L.C. The Xxxxxxx Xxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: Proposed Public Offering by Lucira HealthInspire Medical Systems, Inc. Dear Sirs/Madams: The undersigned, a security holderstockholder, and/or an officer and/or a director, as applicable, of Lucira HealthInspire Medical Systems, Inc., a Delaware corporation (the “Company”), understands that BofA SecuritiesXxxxxxx Lynch, Inc. Pierce, Xxxxxx & Xxxxx Incorporated (“BofAXxxxxxx Xxxxx”) and Xxxxxxx Xxxxx Sachs & Company, L.L.C. Co. LLC (“together with Xxxxxxx Xxxxx” and, together with BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a security holderstockholder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. If the undersigned is an officer or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed shares of the Common Stock the undersigned may purchase in the Public Offering. If the undersigned is an officer and/or or director of the Company (whether as of the date hereof or at the time of receiving any shares of Common Stock of the Company), (1) 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 the Common Stock, the Representatives will notify the Company of the impending release or waiver, and (2) the Company has agreed 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 (i) 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 letter to the extent and for the duration that such terms remain in effect at the time of the transfer. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities may, without the prior written consent of the Representatives:
(a) transfer Lock-Up Securities, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of any transfer pursuant to (i)-(vi) below, any such transfer shall not involve a disposition for value, (3) in the case of any transfer pursuant to clauses (i)-(vii) through (iv) below, such transfers are not required to be reported during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16(a) 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (other than a filing on a Form 5 made after the expiration of the Lock-Up Period)::
(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;; or
(ii) upon death or by will, testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediately family (as defined below) of the undersigned;
(iii) to any immediate family member of the undersigned or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership marriage or adoption, not more remote than first cousin);; or
(iviii) as a distribution to limited partners, members, managers, stockholders or other equity holders or stockholders of the undersigned;; or
(viv) to the undersigned’s affiliates or to any investment fund or other entity controllingthat, directly or indirectly, controls or manages, is controlled or managed by, managing or managed by or is under common control or management with, the undersigned; or
(v) by will or intestate succession upon the death of the undersigned, provided that, any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described above; or
(vi) pursuant to a court or regulatory agency order, a qualified domestic order or in connection with a divorce settlement;
(b) exercise any rights to purchase, exchange or convert any stock options granted to the undersigned or affiliates of pursuant to the undersigned (including, for Company’s equity incentive plans referred to in the avoidance of doubt, where prospectus relating to the undersigned is a partnership, to its general partner or a successor partnership or fundPublic Offering, or any warrants or other funds managed securities convertible into or exercisable or exchangeable for shares of Common Stock, which warrants or other securities are described in the prospectus relating to the Public Offering, provided that (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) the underlying shares of Common Stock continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such exercise during the Lock-Up Period;
(c) sell or otherwise transfer Lock-Up Securities to the Company in connection with the termination of the undersigned’s employment or other service with the Company, provided that, (1) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) no Lock-Up Securities were sold by the reporting person other than such partnershiptransfers to the Company as described above and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such transfers during the Lock-Up Period;
(d) transfer Lock-Up Securities pursuant to a bona fide third-party tender offer, or in connection with a merger, consolidation or other similar transaction 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 tender offer, merger, consolidation or other transaction is not completed, such securities shall remain subject to the restrictions on transfer set forth in this lock-up agreement (for purposes hereof, “change of control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock of the Company if, after such transaction or transactions, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities of the Company (or the surviving entity));
(vie) if the undersigned is a trust, to a trustor, trustee or beneficiary convert shares of preferred stock of the trust or to Company into shares of Common Stock of the estate Company in connection with the consummation of a trustor, trustee or beneficiary of such trust;
(vii) pursuant to a domestic order or negotiated divorce settlementthe Public Offering, provided that any filing made pursuant to this clause (vii) shares of the Common Stock received upon such conversion shall be pursuant subject to such domestic order or divorce settlementthe terms of this lock-up agreement; orand
(viiif) transfer Lock-Up Securities to the Company, to cover taxes due Company upon or the consideration required in connection with the vesting, conversion or exercise (i) a vesting event of securities issued any equity award granted under an any equity incentive plan or stock purchase plan of the Company described in the prospectus relating to the Public Offering, including through or (ii) upon the withholding exercise by the undersigned of shares byoptions or warrants in accordance with clause (b) above, or surrender of shares toin each case, the Company pursuant to on a “net” or “cashless” exercise or settlement featurebasis, provided and/or to cover tax withholding obligations of the undersigned in connection therewith, provided, in each case, that (A1) any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement and (B) provided that in the case of any transfer to the Company pursuant to this clause (viii), any filing under Section 16(a) 16 of the Exchange Act made during the Lock-Up Period shall state clearly indicate in the footnotes thereto that the filing relates to the circumstances described above, as applicable, and (B) no Lock-Up Securities were sold by the reporting person other than such transfer transfers to the Company relates as described above and (2) the undersigned does not otherwise voluntarily effect any other public filings or reports regarding such transfers during the Lock-Up Period. Notwithstanding anything herein to the contrary, nothing in this lock-up agreement shall prevent the undersigned from establishing a 10b5-l trading plan that complies with Rule 10b5-l under the Exchange Act (“10b5-l Trading Plan”) or from amending an existing 10b5-l Trading Plan so long as there are no sales of Lock-Up Securities under such plan during the Lock-Up Period; and provided that, the establishment of a 10b5-1 Trading Plan or the amendment of a 10b5-l Trading Plan, in either case, providing for sales of Lock-Up Securities shall only be permitted if (i) the establishment or amendment of such plan is not required to be reported in any public report or filing with the Commission, or otherwise during the Lock-Up Period, and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding the establishment or amendment of such plan during the Lock-Up Period. Furthermore, the undersigned may sell shares of the Common Stock purchased by the undersigned from the Underwriters in the Public Offering (other than any issuer-directed shares of the Common Stock purchased in the Public Offering by an officer or director of the Company) or on the open market following the Public Offering if and only if (i) such sales are not required to be reported during the Lock-Up Period in any public report or filing with the Commission or otherwise, and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales during the Lock-Up Period. 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 Lock-Up Securities except in compliance with the foregoing restrictions.
(a) if the waiver is effected solely to permit a transfer not involving a disposition for value 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, or (3) if the waiver is granted to a “cashless” or “net” exercise holder of stock options or a tax withholding Lock-Up Securities in connection with a follow-on public offering of the exercise of stock options or Company’s securities pursuant to a tax withholding in connection registration statement on Form S-1 that is filed with the exercise Commission, provided that such waiver shall only apply with respect to such holder’s participation in such follow-on public sale. In the event that, as a result of this paragraph, any Lock-Up Securities held by the undersigned are released from the restrictions imposed by this lock-up agreement, the Representatives shall use commercially reasonable efforts to notify the Company within two business days of the effective date of such release, and the Company, in turn, in consultation with the Representatives, shall use commercially reasonable efforts to notify the Major Holders within one business day thereafter that the same percentage of aggregate Lock-Up Securities held by such Major Holders has been released; provided that the failure to give such notice to the Company or the Major Holders shall not give rise to any claim or liability against the Company or the Underwriters, including the Representatives. Notwithstanding any other provisions of this lock-up agreement, if the Representatives, in their reasonable judgment, after consultation with the Company, determine that a record or beneficial owner of any Lock-Up Securities should be granted an early release from a lock-up agreement due to circumstances of an emergency or hardship, then the Major Holders shall not have any right to be granted an early release pursuant to the terms of this paragraph. For purposes of this lock-up agreement, each of the following persons is a “Major Holder”: each record or beneficial owner, as of the date hereof, of more than 5% of the outstanding shares of capital stock optionsof the Company on an as- converted to Common Stock basis (for purposes of determining record or beneficial ownership of a stockholder, all shares of capital stock held by investment funds affiliated with such stockholder shall be aggregated).]
Appears in 1 contract
Samples: Underwriting Agreement (Inspire Medical Systems, Inc.)
