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Common use of Pricing Information Provided Orally by Underwriters Clause in Contracts

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·], 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Fuelcell Energy Inc)

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Pricing Information Provided Orally by Underwriters. Public offering price Price per shareShare: $2.10 22.00 Number of Underwritten Shares: 43,500,000 Number of 13,636,364 Underwritten Shares plus 2,045,454 Option SharesShares Underwriting Discounts and Commissions: 6,525,000 [·]$1.32 per Share FORM OF LOCK-UP AGREEMENT X.X. XXXXXX SECURITIES LLC XXXXX AND COMPANY, 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity SVB SECURITIES LLC GUGGENHEIM SECURITIES, LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 NY 10179 c/x Xxxxx and Company, LLC 000 Xxxxxxxxx Xxxxxx New York, NY 10022 c/o Barclays Capital Inc. 700 Xxxxxxx SVB Securities LLC 0000 Xxxxxx Xxx Xxxxxx xxx Xxxxxxxx, Xxx Xxxx 00000 00xx Xxxxx New York, NY 10019 c/o Canaccord Genuity Guggenheim Securities, LLC 90 Xxxx Xxxxxx000 Xxxxxxx Xxxxxx New York, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 NY 10017 Re: FuelCell EnergyRevolution Medicines, Inc. --- Public Offering Ladies and GentlemenTo the addressees set forth above: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyRevolution Medicines, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, of the Company (the “Securities”) pursuant to a Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the “SEC”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration consideration, the receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC on behalf of the several Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, in each case subject to the exceptions set forth in this letter agreement (this “Letter Agreement”), during the period beginning on the date of this letter agreement (this “Letter Agreement”) Agreement and ending at the close of business 90 days on the 60th day after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 par value per share par valueshare, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission SEC and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or any other Lock-Up Securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any someone other personthan the undersigned) or transfer of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up SecuritiesCommon Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes,; (ii) by will will, other testamentary document or intestacy,; (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),; (iv) to a partnership, limited liability company or other entity of which the undersigned and and/or the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests,; (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above,; (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) as part of a distribution to the members, partners, stockholders or other equityholders of the undersigned, or to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned,; (vii) by operation of law, such as law pursuant to a qualified domestic order, divorce settlement, divorce decree decree, separation agreement or separation agreement,other court order; (viii) to the Company from an employee or other service provider of the Company upon in connection with the death, disability or termination of employmentemployment or service, in each case, of such employee,employee or service provider; (ix) as part of a sale of to the undersigned’s Lock-Up Securities acquired Company or in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the cover tax withholdings or remittance payments upon a vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms event of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards award granted under a stock incentive plan, stock purchase plan or other equity award plan (such a plan, each such agreement or plan which is an “Equity Plan”) described in the Registration Statement, the Pricing Disclosure Package and the ProspectusProspectus (including the documents incorporated by reference therein), orprovided, that any such shares of Common Stock received upon such vesting, exercise or settlement event (other than such shares as are transferred or surrendered to the Company or sold in open market transactions in connection with such vesting, exercise or settlement event) shall be subject to the terms of this Letter Agreement; provided, further that any open market transactions pursuant to this clause (ix) shall be limited to sales of shares of Common Stock for tax withholdings or remittance payments in connection with the vesting or settlement of restricted stock units outstanding as of the date hereof; (xix) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority more than 50% of the outstanding voting securities of the Company (or the surviving entity)); provided thatprovided, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;and

Appears in 1 contract

Samples: Underwriting Agreement (Revolution Medicines, Inc.)

Pricing Information Provided Orally by Underwriters. Public The public offering price per share: share for the Shares is $2.10 Number [●]. The number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 Shares purchased by the Underwriters is [·], 2020 J.X. . [None] Xxxxxxx X. Xxxxxxxx Xxxxxxxxx X. High Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Xxxxxxxxxx A. Xxxxxx Xxxx Xxxx Xxxxx Xxxxx Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxx X.X. XXXXXX SECURITIES LLC As Representatives Representative of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives Representative of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergySpark Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), ) of common stock stock, par value $0.001 per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make participate in the Public Offering of the SecuritiesSecurities and to continue their efforts in connection with the Public Offering, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X. X. Xxxxxx Securities LLC (the “Representative”) on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 0.001 par value per share par valueshare, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other than (A) the Securities, or (4) publicly disclose the intention if any, to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned pursuant to the Underwriting Agreement, (B) transfers of shares of Common Stock or any such other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) securities as a bona fide gift or gifts, (C) transfers or for bona fide estate planning purposes, (ii) by will dispositions of shares of Common Stock or intestacy, (iii) such other securities to any trust for the direct or indirect benefit of the undersigned or the one or more immediate family members of the undersigned in a transaction not involving a disposition for value, (D) transfers or dispositions of shares of Common Stock or such other securities to any of the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned or under common control of the undersigned, or if the undersigned is an investment company registered under the Investment Company Act of 1940, as amended (a trust“Mutual Fund”), pursuant to a trustor merger or beneficiary reorganization with or into another Mutual Fund that shares the same investment adviser registered pursuant to the requirements of the trust Investment Advisers Act of 1940, as amended, (E) transfers or dispositions of shares of Common Stock or such other securities by will, other testamentary document or intestate succession to the estate legal representative, heir, beneficiary or a member of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entityundersigned, (AF) distributions of shares of Common Stock or such other securities to another corporationpartners, partnership, limited liability company, trust members or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) stockholders of the undersigned, (G) transfers of shares of Common Stock or to any investment fund or such other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company securities in connection with the vesting, settlement, or exercise conversion of restricted the Company’s outstanding preferred stock units, options, warrants or other rights to purchase into shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for connection with the payment of exercise price and tax and remittance payments due as a result consummation of the vestingPublic Offering, settlement, or exercise of such restricted stock units, options, warrants or rights, provided it being understood that any such shares of Common Stock received by the undersigned upon such exercise, vesting or settlement conversion shall be subject to the terms of restrictions on transfer set forth in this Letter AgreementAgreement and (H) transfers or other dispositions prior to the first public filing of a prospectus for the Public Offering with a “price range” set forth on the cover of such prospectus; provided that in the case of any transfer, and provided further that any such restricted stock units, options, warrants disposition or rights are held by the undersigned distribution pursuant to an agreement clause (B), (C), (D), (E), (F) or equity awards granted under a stock incentive plan or other equity award plan(H), each such agreement donee or plan which is described distributee shall execute and deliver to the Representative a lock-up letter in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions form of this Letter Agreement; provided and provided, further, that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), F) or (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (viH), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement reporting a reduction in the beneficial ownership of Common Stock held by the undersigned shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period 90-day period referred to above and any required Schedule 13G (or 13G/A) or 13F filing). For purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Furthermore, notwithstanding the restrictions imposed by this Letter Agreement, the undersigned may, without the prior written consent of the Representative, (i) exercise an option to purchase shares of Common Stock granted under any stock incentive plan or stock purchase plan of the Company, it being understood that any shares of Common Stock received by the undersigned upon such exercise shall be subject to the restrictions on transfer set forth in this Letter Agreement, (ii) transfer the undersigned’s Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company (1) pursuant to any contractual arrangement in effect on the date of this Letter Agreement that provides for the repurchase of the undersigned’s Common Stock or such other securities by the Company, (2) pursuant to the terms of any stock incentive plan or stock purchase plan of the Company solely to satisfy tax withholding obligations or (3) in connection with the termination of the undersigned’s employment with the Company, (iii) effect transactions pursuant to a trading plan established pursuant to Rule 10b-5 under the Exchange Act in existence as of the date of the Prospectus, (iv) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided that such plan does not provide for any transfers of Common Stock, and no filing under the Exchange Act or other public announcement shall be required or voluntarily made by the undersigned or any other person in connection therewith without the permission of the Representative, in each case during the 90-day period referred to above) , and (Cv) transfer or dispose of Securities acquired in the case Public Offering (other than any Company-directed Securities purchased in the Public Offering by an officer or director of any transfer the Company) or distribution pursuant to clause (a)(vii)acquired on the open market following the Public Offering, (viii), (ix) and (x) it shall be a condition to such transfer provided that no public filing, report or announcement shall be voluntarily made and if filing by any filing party under Section 16(a) of the Exchange Act, Act or other public filing, report or announcement reporting a reduction in the beneficial ownership of shares of Common Stock held by the undersigned shall be required or shall be made voluntarily in connection with such transfer or distribution disposition (other than a filing on a Form 5 made after the expiration of the 90-day period referred to above and any required Schedule 13G (or 13G/A) or 13F filing). If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be legally required during equally applicable to any Company-directed Securities the Restricted Period, such filing, report or announcement shall clearly indicate undersigned may purchase in the footnotes thereto the nature and conditions of such transfer;Public Offering.

Appears in 1 contract

Samples: Underwriting Agreement (Spark Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public The public offering price per share: share for the Shares is $2.10 Number 45.00. The number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·], 2020 J.X. Shares purchased by the Underwriters is 3,500,000. Xxxxxxx X. Xxxxxxxx Xxxxxxxxx X. High Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Xxxx Xxxxxx X. Xx Xxxxx Xxxxxx Xxxxxxxxxx A. Xxxxxx Xxxx Xxxx Xxxxx Xxxxx Xxxxx Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxx Xxxx Xxxx X.X. XXXXXX SECURITIES LLC As Representatives Representative of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives Representative of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergySpark Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), ) of common stock stock, par value $0.001 per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make participate in the Public Offering of the SecuritiesSecurities and to continue their efforts in connection with the Public Offering, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC (the “Representative”) on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 0.001 par value per share par valueshare, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other than (A) the Securities, or (4) publicly disclose the intention if any, to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned pursuant to the Underwriting Agreement, (B) transfers of shares of Common Stock or any such other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) securities as a bona fide gift or gifts, (C) transfers or for bona fide estate planning purposes, (ii) by will dispositions of shares of Common Stock or intestacy, (iii) such other securities to any trust for the direct or indirect benefit of the undersigned or the one or more immediate family members of the undersigned in a transaction not involving a disposition for value, (D) transfers or dispositions of shares of Common Stock or such other securities to any of the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned or under common control of the undersigned, or if the undersigned is an investment company registered under the Investment Company Act of 1940, as amended (a trust“Mutual Fund”), pursuant to a trustor merger or beneficiary reorganization with or into another Mutual Fund that shares the same investment adviser registered pursuant to the requirements of the trust Investment Advisers Act of 1940, as amended, (E) transfers or dispositions of shares of Common Stock or such other securities by will, other testamentary document or intestate succession to the estate legal representative, heir, beneficiary or a member of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entityundersigned, (AF) distributions of shares of Common Stock or such other securities to another corporationpartners, partnership, limited liability company, trust members or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) stockholders of the undersigned, (G) transfers of shares of Common Stock or to any investment fund or such other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company securities in connection with the vesting, settlement, or exercise conversion of restricted the Company’s outstanding preferred stock units, options, warrants or other rights to purchase into shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for connection with the payment of exercise price and tax and remittance payments due as a result consummation of the vestingPublic Offering, settlement, or exercise of such restricted stock units, options, warrants or rights, provided it being understood that any such shares of Common Stock received by the undersigned upon such exercise, vesting or settlement conversion shall be subject to the terms of restrictions on transfer set forth in this Letter AgreementAgreement and (H) transfers or other dispositions prior to the first public filing of a prospectus for the Public Offering with a “price range” set forth on the cover of such prospectus; provided that in the case of any transfer, and provided further that any such restricted stock units, options, warrants disposition or rights are held by the undersigned distribution pursuant to an agreement clause (B), (C), (D), (E), (F) or equity awards granted under a stock incentive plan or other equity award plan(H), each such agreement donee or plan which is described distributee shall execute and deliver to the Representative a lock-up letter in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions form of this Letter Agreement; provided and provided, further, that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), F) or (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (viH), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement reporting a reduction in the beneficial ownership of Common Stock held by the undersigned shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period 60-day period referred to above and any required Schedule 13G (or 13G/A) or 13F filing). For purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Furthermore, notwithstanding the restrictions imposed by this Letter Agreement, the undersigned may, without the prior written consent of the Representative, (i) exercise an option to purchase shares of Common Stock granted under any stock incentive plan or stock purchase plan of the Company, it being understood that any shares of Common Stock received by the undersigned upon such exercise shall be subject to the restrictions on transfer set forth in this Letter Agreement, (ii) transfer the undersigned’s Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company (1) pursuant to any contractual arrangement in effect on the date of this Letter Agreement that provides for the repurchase of the undersigned’s Common Stock or such other securities by the Company, (2) pursuant to the terms of any stock incentive plan or stock purchase plan of the Company solely to satisfy tax withholding obligations or (3) in connection with the termination of the undersigned’s employment with the Company, (iii) effect transactions pursuant to a trading plan established pursuant to Rule 10b-5 under the Exchange Act in existence as of the date of the Prospectus, (iv) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided that such plan does not provide for any transfers of Common Stock, and no filing under the Exchange Act or other public announcement shall be required or voluntarily made by the undersigned or any other person in connection therewith without the permission of the Representative, in each case during the 60-day period referred to above) , and (Cv) transfer or dispose of Securities acquired in the case Public Offering (other than any Company-directed Securities purchased in the Public Offering by an officer or director of any transfer the Company) or distribution pursuant to clause (a)(vii)acquired on the open market following the Public Offering, (viii), (ix) and (x) it shall be a condition to such transfer provided that no public filing, report or announcement shall be voluntarily made and if filing by any filing party under Section 16(a) of the Exchange Act, Act or other public filing, report or announcement reporting a reduction in the beneficial ownership of shares of Common Stock held by the undersigned shall be required or shall be made voluntarily in connection with such transfer or distribution disposition (other than a filing on a Form 5 made after the expiration of the 60-day period referred to above and any required Schedule 13G (or 13G/A) or 13F filing). If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be legally required during equally applicable to any Company-directed Securities the Restricted Period, such filing, report or announcement shall clearly indicate undersigned may purchase in the footnotes thereto the nature and conditions of such transfer;Public Offering.

Appears in 1 contract

Samples: Underwriting Agreement (Spark Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price Price per share: $2.10 55.00 Number of Underwritten Shares: 43,500,000 3,181,818 Number of Option Shares: 6,525,000 477,272 [·], 2020 J.X. Xxxxxx Securities Form of Lock-up Agreement] X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity XXXXX XXXXXXX & CO. XXXXXXXXX LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxx Xxxxxxx & Co. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyDeciphera Pharmaceuticals, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as the Representatives (“Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyDeciphera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock Common Stock, $0.01 per share par value, of the Company (the “Securities”). Capitalized terms used herein in this agreement (this “Lock-Up Agreement”) and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, that the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) Lock-Up Agreement and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stockCommon Stock, $0.0001 0.01 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, Lock-Up SecuritiesUndersigned’s Shares”), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesUndersigned’s Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction or instrument, however described or definedthan: (A) designed or intended, or which would reasonably any Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement, (aB) transfer transfers of shares of the undersignedUndersigned’s Lock-Up Securities: (i) Shares as a bona fide gift or gifts, provided that the donee or for bona fide estate planning purposesdonees thereof agree to be bound in writing by the restrictions set forth herein, (iiC) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, the undersigned may transfer the Undersigned’s Shares (x) to another corporation, partnership, limited liability company, trust or other affiliate as defined in Rule 405 promulgated under the Securities Act of 1933, as amended, of the undersigned (including, for the avoidance of doubt, a fund managed by will the same manager or intestacymanaging member or general partner or management company or by an entity controlling, controlled by, or under common control with such manager or managing member or general partner or management company as the undersigned or who shares a common investment advisor with the undersigned) or (y) as part of a distribution without consideration by the undersigned to its stockholders, partners, members or other equity holders, provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding the Undersigned’s Shares subject to the provisions of this Lock-Up Agreement and there shall be no further transfer of such Undersigned’s Shares except in accordance with this Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value, (iiiD) sales or other transfers of the Undersigned’s Shares acquired in the Public Offering, or transactions relating the Undersigned’s Shares acquired in open market transactions after the date of the Underwriting Agreement for the Public Offering, (E) transfers of the Undersigned’s Shares to any member of the immediate family of the undersigned or any trust or other legal entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or any beneficiary (including such beneficiary’s estate) of the trust or undersigned, provided that the transferee agrees to be bound in writing by the estate of restrictions set forth in this Lock-Up Agreement, and provided further that any such transfer shall not involve a beneficiary of such trust disposition for value (for purposes of this Letter Agreement, hereof “immediate family” shall mean any relationship by blood, current or former marriagedomestic partnership, domestic partnership marriage or adoption, not nor more remote removed than first cousin), (ivF) to a partnership, limited liability company or other entity of which the undersigned and the immediate family transfers of the undersigned are Undersigned’s Shares by will or intestate succession upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders death of the undersigned, (viiG) transfers of the Undersigned’s Shares by operation of law, such as law or by order of a court of competent jurisdiction pursuant to a qualified domestic order, order or in connection with a divorce settlement, divorce decree or separation agreement, (viiiH) the surrender or forfeiture of the Undersigned’s Shares to the Company from an employee of to satisfy (x) tax withholding obligations upon exercise or vesting or (y) the Company exercise price upon death, disability or termination of employmenta cashless net exercise, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vestingshare options, settlement, or exercise of restricted stock units, optionsequity awards, warrants or other rights right to purchase shares of acquire Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject pursuant to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or Company’s equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is plans as described in the Registration Statement, (I) the exercise of any option, warrant or other rights to acquire shares of Common Stock or other securities, the Pricing Disclosure Package and settlement of any share-settled share appreciation rights, restricted shares or restricted share units or the Prospectusconversion of any convertible security into Common Stock, orprovided that the underlying Common Stock or other securities continue(s) to be subject to the restrictions of this Lock-Up Agreement, (xiJ) transfers pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is in each case made to all holders of the Company’s capital stock Common Stock, involving a Change of Control (as defined below), provided that (x) of in the Company (for purposes hereof, “Change of Control” shall mean event that the transfer (whether by tender offer, merger, consolidation or other similar transaction)such transaction is not completed, in one transaction the Undersigned’s Shares shall remain subject to the terms of this Lock-Up Agreement and (y) no such transfer of Common Stock or a series of related transactions, other Undersigned’s Shares shall be permitted pursuant to a person or group of affiliated persons, of shares of capital stock if, after this clause (J) if such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such bona fide third-party tender offer, merger, consolidation or other similar transaction is not completedapproved by the board of directors of the Company, unless either (i) such transfer is required pursuant to mandatory take-over or squeeze-out provisions under applicable law or (ii) the failure to so transfer such Undersigned’s Shares would result in such Undersigned’s Shares being extinguished without value being received by the undersigned, (K) any transfers of the Undersigned’s Lock-Up Securities shall remain subject Shares to the provisions Company arising as a result of this Letter Agreement; the termination of employment of the undersigned and pursuant to employment agreements under which the Company has the option to repurchase the Undersigned’s Shares or a right of first refusal with respect to transfers of the Undersigned’s Shares, (L) transfers of the Undersigned’s Shares made pursuant to a contract, instruction or plan adopted pursuant to Rule 10b5-1 of the Exchange Act (a “Plan”) prior to the date hereof, provided that (A1) no amendment shall be made to any such existing Plan during the Restricted Period, and (2) any filing under Section 16(a) of the Exchange Act that is made in connection with any such sales during the case of any transfer or distribution Restricted Period shall state that such sales have been executed under a trading plan pursuant to clause Rule 10b5-1 under the Exchange Act, or (a)(i)M) transfers of the Undersigned’s Shares with the prior written consent of X.X. Xxxxxx Securities LLC, (ii)Xxxxx Xxxxxxx & Co. and Xxxxxxxxx LLC on behalf of the Underwriters. In addition, (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver with respect to the Representatives a lock-up letter in the form of this Letter Agreement, clauses (B) in the case of any through (I) above, it shall be a condition to such transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), that no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or ) nor any other public announcement filing or disclosure of such transfer by or on behalf of the undersigned shall be required or shall be voluntarily made voluntarily in connection with such transfer or distribution during the Restricted Period (other than a filing on a Form 5 made after the expiration of the Restricted Period referred and any required Schedule 13G (or 13G/A) or 13F (or 13F/A) filing, provided that such filing clearly indicates in the footnotes thereto an explanation of the type of transaction giving rise to abovethe change in ownership and, with respect to clauses (B), (C), (E) and (C) in the case of any transfer or distribution pursuant to clause (a)(viiI), (viiithat the footnotes thereto also indicate the securities so transferred or distributed are subject to this Lock-Up Agreement). Furthermore, (ix) and nothing in this Lock-Up Agreement shall be deemed to prevent the undersigned from establishing a Plan, provided that (x) it shall be a condition to such Plan does not provide for the transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with during the Restricted Period and (y) to the extent a public announcement or filing under the Exchange Act regarding the establishment of such Plan is required of or is voluntarily made by or on behalf of the undersigned or the Company, such announcement or filing shall include a statement to the effect that no transfer or distribution shall of Common Stock may be legally required made under such Plan during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Deciphera Pharmaceuticals, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·Information included in any script that will be used by Underwriters to confirm sales] [—], 2020 J.X. 2014 Xxxxxxx, Sachs & Co. X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxxx Xxxxxxx & Co. LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Goldman Sachs & Co. 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity Xxxxxx Xxxxxxx & Co. LLC 90 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- CBS OUTDOOR AMERICAS INC. — Initial Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell Energy, CBS Outdoor Americas Inc., a Delaware Maryland corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of shares (the “Securities”) of common stock stock, $0.01 per share par value, of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxxx, Sachs & Co. and Xxxxxx Securities Xxxxxxx & Co. LLC (the “Release Agents”) on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 180 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Lock-Up Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (collectively, the “Equity Securities”) (including without limitation, Common Stock or such other securities which may be deemed to be are beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), or publicly disclose the intention to make any offer, sale, pledge or disposition, [in each case, that is inconsistent with CBS’s or the Company’s prior public disclosure with regards thereto]1 (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Equity Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Equity Securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Equity Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may:each case other than (aA) transfer the undersigned’s Lock-Up Securities: (i) transfers of Equity Securities as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiB) distributions of Equity Securities to general or limited partners, members, shareholders, affiliates or wholly owned subsidiaries or other entities controlled or managed by will or intestacy,the undersigned; (iiiC) transfers or dispositions of Equity Securities to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is in a trust, to transaction not involving a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (disposition for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),value; (ivD) transfers or dispositions of Equity Securities to a any corporation, partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the undersigned and in a transaction not involving a disposition for value; (E) transfers or dispositions of Equity Securities by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests,undersigned; and (vF) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) transfers to the Company from an employee of Equity Securities in full or partial payment of the Company upon death, disability exercise price for options to purchase the Common Stock or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with full or partial payment of taxes required to be paid upon the vesting, settlementvesting of restricted shares of, or exercise of restricted stock unitsunits settleable in, options, warrants or other rights to purchase shares of Common Stock (includingStock, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject case pursuant to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital employee stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation option or other similar transaction), in one transaction employee or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, director incentive plans; 1 To be included in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Locklock-Up Securities shall remain subject to the provisions of this Letter Agreement; up agreement executed by CBS Corp. provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iA), (iiB), (iiiC), (ivD) or (E), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee donee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iA), (iiB), (iiiC), (iv), D) or (v), and (viE), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended amended, (the “Exchange Act”), or other public announcement announcement, shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 5[ or Schedule 13G]2). For purposes of this agreement (the “Letter Agreement”), “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Furthermore, notwithstanding the restrictions imposed by this Letter Agreement, the undersigned may, without the prior written consent of the Release Agents, on behalf of the Underwriters, establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided, that, such plan does not provide for any transfers of Common Stock during the Lock-Up Period or any extension thereof pursuant to this Letter Agreement and provided, further, that no filing with the United States Securities and Exchange Commission or other public announcement shall be required or voluntarily made by the undersigned or any other person in connection therewith. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the Public Offering. If the undersigned is an officer or director of the Company, (i) the Release Agents on behalf of the Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, the Release Agents on behalf of the Underwriters will notify the Company of the impending release or waiver, and (ii) 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 Release Agents on behalf of the Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer. Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the Restricted Period referred Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Lock-Up Period, the restrictions imposed by this Letter Agreement shall continue to above) apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In furtherance of the foregoing, the Company, and (C) any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement. 2 To be included in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) lock-up agreements executed by CBS Corp. and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;its affiliates.

Appears in 1 contract

Samples: Underwriting Agreement (CBS Outdoor Americas Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price [Price per share: $2.10 [l] Number of Underwritten Shares: 43,500,000 [l] Number of Option Shares: 6,525,000 [·]l] • Investor Presentation dated July 2018 Guardant Health, 2020 J.X. Xxxxxx Securities Inc. Pricing Term Sheet [None.] X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity LLC XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyGuardant Health, Inc., a Delaware corporation (the “Company”), providing for the initial public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.00001 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration consideration, receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate tosubject to the exceptions set forth in this letter agreement (this “Letter Agreement”), during the period beginning on the date of this letter agreement (this “Letter Agreement”) Agreement and ending at the close of business 90 180 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securitiesshares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (and, or (4) publicly disclose for the intention to do any avoidance of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes doubt, the undersigned from engaging hereby waives any and all notice requirements and rights with respect to the registration of any securities in the Public Offering pursuant to any hedging or other transactions or arrangements (includingagreement, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described understanding or definedotherwise, including any stockholders or registration rights agreement or similar agreement, to which the undersigned is a party or under which the undersigned is entitled to any right or benefit), in each case other than: (A) designed or intended, or which would reasonably the Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement; (a) transfer the undersigned’s Lock-Up Securities: (iB) as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiC) by will to partners, members, beneficiaries (or intestacy,the estates thereof) or stockholders of the undersigned; (iiiD) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),; (ivE) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a any corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that controls, or is an controlled by or is under common control with, the undersigned or the immediate family of the undersigned or is otherwise a direct or indirect affiliate (as defined (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended); (F) by testate succession or intestate succession to a legal representative, heir, beneficiary or a member of the immediate family of the undersigned, or to provided that any investment fund or other entity controlling, controlled by, managing or managed by or filing under common control with the undersigned or affiliates Section 16 of the undersigned Securities Exchange Act of 1934, as amended (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“Exchange Act”), shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause and no other public announcement shall be required or (B) as part of a distribution to members shall be made voluntarily during the Restricted Period in connection with such transfer or shareholders of the undersigned,disposition; (viiG) by operation of law, such as including pursuant to an order of a qualified court (including a domestic order, order or a negotiated divorce settlement, divorce decree ) or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rightsregulatory agency, provided that any such shares filing under Section 16 of Common Stock received upon such exercise, vesting or settlement the Exchange Act shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause and no other public announcement shall be subject to required or shall be made voluntarily during the terms of this Letter Agreement, and provided further that any Restricted Period in connection with such restricted stock units, options, warrants transfer or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, disposition; or (xiH) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is or bona fide third party tender offer made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (including voting in favor of any such transaction or taking any other action in connection with such transaction), that, in each case, has been approved by the board of directors of the Company, provided that in the event that such transaction is not completed, the undersigned’s Common Stock and securities convertible into or exercisable or exchangeable for purposes hereofCommon Stock shall remain subject to the restrictions contained in this Letter Agreement, and provided further that “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction)transfer, in one transaction or in a series of related transactions, to a person or group of affiliated personspersons (other than an Underwriter pursuant to the Public Offering), of shares of capital stock the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold at least a majority more than 75% of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB)–(G), (ii)each transferee, (iii)donee or distributee, (iv)as applicable, (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) paragraph and such transfer or distribution shall not involve a disposition for value; and provided further that in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (viB)–(E), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) ). For purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the case of any transfer or distribution pursuant to clause (a)(vii)Public Offering. In addition, (viii), (ix) and (x) it the foregoing restrictions shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;not apply to:

Appears in 1 contract

Samples: Underwriting Agreement (Guardant Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·], 2020 J.X. Xxxxxx Securities set out key information included in script that will be used by Underwriters to confirm sales] Written Testing-the-Waters Communications FORM OF LOCK-UP AGREEMENT X. X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity LEERINK PARTNERS LLC XXXXX XXXXXXX & CO. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X. X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Leerink Partners LLC Xxx Xxxxxxx Xxxxxx Xxx XxxxXxxxxx, Xxx Xxxx 00xx Xxxxx Xxxxxx, XX 00000 c/o Canaccord Genuity LLC 90 Xxxx XxxxxxXxxxx Xxxxxxx & Co. 000 Xxxxxxxx Xxxx, Xxxxx 0000 XxxxxxXxxxxxxxxxx, Xxxxxxxxxxxxx XX 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that youundersigned, as Representatives a stockholder of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyCrinetics Pharmaceuticals, Inc., a Delaware corporation (the “Company”), understands that you, as representatives (the “Representatives”) of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, providing for the initial public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.001 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 180 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) lend, 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securitiesshares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (and, or (4) publicly disclose for the intention to do any avoidance of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes doubt, the undersigned from engaging in hereby waives any hedging or other transactions or arrangements (includingand all notice requirements and rights with respect to the registration of any securities pursuant to any agreement, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described understanding or definedotherwise, including any stockholders or registration rights agreement or similar agreement, to which the undersigned is a party or under which the undersigned is entitled to any right or benefit), in each case other than (A) designed or intended, or which would reasonably the Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other personpursuant to the Underwriting Agreement, (B) transfers of any economic consequences shares of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) Common Stock as a bona fide gift or gifts, (C) distributions of shares of Common Stock to limited or for bona fide estate planning purposes, general partners, members or stockholders of the undersigned, (iiD) by will transfers to an immediate family member or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the an immediate family of the undersignedmember, or if the undersigned is a trust(E) transfers to any corporation, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the undersigned and undersigned, (F) transfers by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned are undersigned, (G) transfers pursuant to a court or regulatory agency order, a qualified domestic order or in connection with a divorce settlement, (H) transfers to the legal and beneficial owner Company in connection with the “net” or “cashless” exercise of all options or other rights to purchase shares of Common Stock granted pursuant to an equity incentive plan, stock purchase plan or other arrangement described in the registration statement (“Registration Statement”) on Form S-1 to be filed with the SEC in satisfaction of any tax withholding obligations through cashless surrender or otherwise, provided, that, any shares of Common Stock issued upon exercise of such option or other rights shall continue to be subject to the restrictions set forth herein until the expiration of the outstanding equity securities or similar interests, Restricted Period, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (viI) if the undersigned is an investment company registered under the Investment Company Act of 1940, as amended (a corporation“Mutual Fund”), partnershiptransfers pursuant to a merger or reorganization with or into another Mutual Fund that shares the same investment adviser registered pursuant to the requirements of the Investment Advisers Act of 1940, limited liability company, trust or other business entityas amended, (AJ) transfers to another corporation, partnership, limited liability company, trust or other business entity that is an any affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, undersigned or to any investment fund or other entity controlling, controlled by, managing or managed by the undersigned or under common management or control with the undersigned or affiliates of the undersigned undersigned, and (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 (BK) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise conversion of restricted stock units, options, warrants or other rights to purchase outstanding shares of preferred stock of the Company into Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction any reclassification or conversion of the Company Common Stock, provided that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation any Common Stock received upon such conversion 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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain reclassification will be subject to the provisions of restrictions set forth in this Letter Agreementparagraph; provided that (A) in the case of any transfer or distribution pursuant to clause clauses (a)(iB), (iiC), (iiiD), (ivE), (vF), (vi) and (viiG), such transfer shall not involve a disposition for value and (I) or (J), each doneetransferee, devisee, transferee donee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreementparagraph; provided, (B) further, that in the case of any transfer or distribution pursuant to clause clauses (a)(iC), (iiD), (iiiE), (ivF), (vG) and (J), such transfer shall not involve a disposition for value; and provided, further, that in the case of any transfer or distribution pursuant to clauses (viB) through (J), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) ). If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the case Public Offering. Further, a transfer of any transfer or distribution pursuant Securities to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock Company in connection with such transfer or distribution shall be legally required during any contractual arrangement in effect on the Restricted Period, such filing, report or announcement shall clearly indicate in date of the footnotes thereto Prospectus that provides for the nature and conditions repurchase of such transfer;the undersigned’s shares by the

Appears in 1 contract

Samples: Underwriting Agreement (Crinetics Pharmaceuticals, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 6,900,000 Price to Public: $43.50 per share Underwriting Discounts and Commissions: $2.175 per share Executive Officers • Xxxxxx Mates, Ph.D. • Xxxxxxxx X. Xxxxxxxx • Xxxxx X. Xxxxxxxx, Ph.D. • Xxxx X. Xxxxxxx • Xxxxxxxx X. Xxxxxxxx, Ph.D. • Xxxxxxxx X. Xxxxxxx, Ph.D. • Xxxxxxx Xxxxxxxx Directors • Xxxxxxxxxxx Xxxxx, Ph.D. • Xxxxxxx Xxxxxx, M.D. • Xxxx X. Xxxxxx • Xxxx Xxxxx • Xxxxxx Xxx Xxxxxxxx Stockholders • Alafi Capital Company, LLC • Xxxxx Xxxxx • Xxxxxxxxxxx X. Xxxxx as Trustee of Option Shares: 6,525,000 [·]The Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx Generation-Skipping Trust • Xxxxxx Family Trust UAD 11/14/94 • Alexandria Equities, 2020 J.X. LLC • Alexandria Real Estate Equities, Inc. • Xxxx X. Xxxxxx Securities and Xxxxxxx X. Xxxxxx Family Trust • New Ventures I, LLC Barclays Capital Inc. Canaccord Genuity Leerink Partners LLC Xxxxx and Company, LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below hereto c/o J.X. Leerink Partners LLC 0000 Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Cowen and Company, LLC 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyIntra-Cellular Therapies, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.0001 per share par value (the “Common Stock”) of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities Leerink Partners LLC and Xxxxx and Company, LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction or instrument, however described or definedthan: (A) designed or intended, or which would reasonably any Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement; (aB) transfer the undersigned’s Lock-Up Securities: (i) transfers of shares of Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiC) by will transfers or intestacy,distributions of shares of Common Stock to limited or general partners, members or stockholders or direct or indirect affiliates of the undersigned, including funds or other entities under common control or management with the undersigned; (iiiD) transfers of shares of Common Stock to any immediate family member, any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, undersigned or if any of their successors upon death or any partnership or limited liability company the partners or members of which consist of the undersigned is and one or more members of the undersigned’s immediate family, provided that such transfers shall not involve a trust, disposition of value; (E) transfers of shares of Common Stock to a trustor or any beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) undersigned pursuant to a partnershipwill, limited liability company other testamentary document or other entity applicable laws of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigneddescent, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified including domestic order, divorce settlement, divorce decree or separation agreement,relations orders; (viiiF) transfers of shares of Common Stock to the Company from for the primary purpose of satisfying any tax or other governmental withholding obligation with respect to shares of Common Stock issued upon the exercise of an option or warrant (or upon the exchange of another security or securities) outstanding on or prior to the date of the Prospectus, or issued under an employee equity or benefit plan in existence on or prior to the date of the Company upon death, disability or termination of employment, in each case, of such employee,Prospectus; (ixG) as part dispositions of a sale shares of the undersigned’s Lock-Up Securities Common Stock or any security convertible into or exercisable or exchangeable for shares of Common Stock acquired in open market transactions after the closing date for completion of the Public Offering,; and (xH) to the Company in connection with the vesting, settlement, or exercise establishment of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned trading plan pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide thirdRule 10b5-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) 1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock during the restricted period specified in connection with this Letter Agreement and no filing or other public announcement regarding such transfer or distribution plan shall be legally required or voluntarily made during the Restricted Period, such filing, report or announcement shall clearly indicate restricted period specified in the footnotes thereto the nature and conditions of such transfer;this Letter Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Intra-Cellular Therapies, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 9,200,000 Shares. 2. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]26.90. 3. The lock up period for the company, 2020 J.X. certain directors affiliated with the Selling Stockholder, executive officers and the Selling Stockholder is 30 days. None 1. HC Group Holdings I, LLC 2. Hxxxx X. Xxxxxx Securities Kxxxxxx, Jr. 3. Exxxxxxxx X. Xxxxxx 4. Txxxxxx X. Xxxxxxxx 5. Mxxx Xxxxxxx 6. Jxxx X. Xxxxxxxxxx 7. Cxxxxxxx X. Xxxxxx 8. Hxxxxxx Xxxxxx 9. Rxxxxxx Xxxxxxx 10. Mxxxxxx Xxxxxxx Gxxxxxx Sachs & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sxxxx & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 30 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), showing a reduction in beneficial ownership or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public The number of Underwritten Shares purchased by the Underwriters is [●]. The number of Option Shares is [●]. The public offering price per share: share is $2.10 Number [●]. Written Testing-the-Waters Communications [None] Form of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]Lock-Up Agreement January , 2020 J.X. Xxxxxx Securities 2021 X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity XXXXXXXXX LLC XXXXX XXXXXXX & CO. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxxx Xxxxxxx & Co. 000 Xxxx Xxxxxx, 00xx Xxxxx 0000 Xxx Xxxx, XX 00000 x/x Xxxxxx, Xxxxxxxxxxxxx Xxxxxxxx & Company, Incorporated 000 0xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyDyne Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.0001 per share (the “Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC and Xxxxxxxxx LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will will, other testamentary document or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a corporation, partnership, limited liability company company, trust or other entity of which the undersigned and and/or one or more members of the immediate family of the undersigned are are, directly or indirectly, the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution or other transfer to general or limited partners, members or shareholders of, or other holders of equity in, the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree decree, separation agreement or separation agreementcourt order, (viii) to the Company from an employee or other service provider of the Company upon death, disability or termination of employmentemployment or service relationship, in each case, of such employeeemployee or service provider, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in the Public Offering (other than, in the case of an officer or director of the Company, any Securities such officer or director may purchase in the Public Offering) or in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards award granted under a stock incentive plan or other equity award planplan or other arrangement, each such agreement agreement, plan or plan arrangement which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer transfer, disposition or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(ia) (i), (ii), (iii), (iv), (v), (vi) and (viix), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 or any required Schedule 13F, Schedule 13G or Schedule 13G/A, in each case made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer transfer, disposition or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Dyne Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 9,677,419 Price to Public: $15.50 per share Underwriting Discounts and Commissions: $0.93 per share Persons Signing a Lock-Up Agreement Executive Officers • Xxxxxx Mates, Ph.D. • Xxxxxxxx X. Xxxxxxxx • Xxxxxxx Xxxxxxxx • Xxxxxx X. Xxxxx, Ph.D. • Xxxxxxxx X. Xxxxxxx, Ph.D. Directors • Xxxxxxxxxxx Xxxxx, Ph.D. • Xxxxxxx Xxxxxx, M.D. • Xxxx X. Xxxxxx • Xxxx Xxxxx • Xxxxxx Xxx Xxxxxxxx Stockholders • Alafi Capital Company, LLC • Xxxxx Xxxxx • Xxxxxxxxxxx X. Xxxxx as Trustee of Option Shares: 6,525,000 [·]The Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx Generation-Skipping Trust • Xxxxxx Family Trust UAD 11/14/94 • Alexandria Equities, 2020 J.X. LLC • Alexandria Real Estate Equities, Inc. • Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx Family Trust • New Ventures I, LLC FORM OF LOCK-UP AGREEMENT X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Leerink Partners LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below hereto c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyIntra-Cellular Therapies, Inc. --- — Follow-on Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyIntra-Cellular Therapies, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.0001 per share par value (the “Common Stock”) of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction or instrument, however described or definedthan: (A) designed or intended, or which would reasonably any Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement; (aB) transfer the undersigned’s Lock-Up Securities: (i) transfers of shares of Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiC) by will transfers or intestacy,distributions of shares of Common Stock to limited or general partners, members or stockholders or direct or indirect affiliates of the undersigned, including funds or other entities under common control or management with the undersigned; (iiiD) transfers of shares of Common Stock to any immediate family member, any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, undersigned or if any of their successors upon death or any partnership or limited liability company the partners or members of which consist of the undersigned is and one or more members of the undersigned’s immediate family, provided that such transfers shall not involve a trust, disposition of value; (E) transfers of shares of Common Stock to a trustor or any beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) undersigned pursuant to a partnershipwill, limited liability company other testamentary document or other entity applicable laws of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigneddescent, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified including domestic order, divorce settlement, divorce decree or separation agreement,relations orders; (viiiF) transfers of shares of Common Stock to the Company from for the primary purpose of satisfying any tax or other governmental withholding obligation with respect to shares of Common Stock issued upon the exercise of an option or warrant or the vesting of a restricted stock unit (or upon the exchange of another security or securities) outstanding on or prior to the date of the Prospectus, or issued under an employee equity or benefit plan in existence on or prior to the date of the Company upon death, disability or termination of employment, in each case, of such employee,Prospectus; (ixG) as part dispositions of a sale shares of the undersigned’s Lock-Up Securities Common Stock or any security convertible into or exercisable or exchangeable for shares of Common Stock acquired in open market transactions after the closing date for completion of the Public Offering,; and (xH) to the Company in connection with the vesting, settlement, or exercise establishment of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned trading plan pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide thirdRule 10b5-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) 1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock during the restricted period specified in connection with this Letter Agreement and no filing or other public announcement regarding such transfer or distribution plan shall be legally required or voluntarily made during the Restricted Period, such filing, report or announcement shall clearly indicate restricted period specified in the footnotes thereto the nature and conditions of such transfer;this Letter Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Intra-Cellular Therapies, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of [l] shares Option Shares: 6,525,000 [·], 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- l] shares Public Offering Ladies and GentlemenPrice Per Share: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. $[l] Investor Presentation dated December 2021 Investor Presentation dated August 2022 In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur reliance on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other personSection 5(d) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amendedamended (the “Act”), Prime Medicine, Inc. (the “Issuer”) hereby authorizes X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”), Xxxxxxx Xxxxx & Co. LLC (“Xxxxxxx Sachs”), Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”) and Xxxxxxxxx LLC (“Jefferies”), and their affiliates and their respective employees, to engage on behalf of the Issuer in oral and written communications with potential investors that are “qualified institutional buyers”, as defined in Rule 144A under the Act, or institutions that are “accredited investors”, within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Act, to determine whether such investors might have an interest in the Issuer’s contemplated initial public offering (“Testing-the-Waters Communications”). A “Written Testing-the Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act. Each of X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx, individually and not jointly, agrees that it shall not distribute any Written Testing-the-Waters Communication that has not been approved by the Issuer. The Issuer represents that (i) except as disclosed to X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx, it has not alone engaged in any Testing-the-Waters Communication and (ii) it has not authorized anyone other than X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx to engage in Testing-the-Waters Communications. The Issuer agrees that it shall not authorize any other third party to engage on its behalf in oral or written communications with potential investors without the written consent of X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx while this authorization is in effect. The issuer also represents that it is an “emerging growth company” as defined in Section 2(a)(19) of the undersignedAct (“Emerging Growth Company”) and agrees to promptly notify X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx in writing if the Issuer hereafter ceases to be an Emerging Growth Company while this authorization is in effect. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to any investment fund or other entity controllingstate a material fact necessary in order to make the statements therein, controlled by, managing or managed by or under common control with in the undersigned or affiliates light of the undersigned (circumstances existing at that subsequent time, not misleading, the Issuer will promptly notify X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. Nothing in this authorization is intended to limit or otherwise affect the ability of X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx, and their affiliates and their respective employees, to engage in communications in which they could otherwise lawfully engage in the absence of this authorization, including, for without limitation, any written communication containing only one or more of the avoidance statements specified under Rule 134(a) under the Act. This authorization shall remain in effect until the Issuer has provided to X.X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxxxx a written notice revoking this authorization. All notices as described herein shall be sent by email to X.X. Xxxxxx to the attention of doubt, where the undersigned is a partnershipXxxxx Xx at xxxxx.xx@xxxxxxxx.xxx, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) Xxxxxxx Xxxxx to the Company from an employee attention of Xxxx Xxxx at xxxx.xxxx@xx.xxx, to Xxxxxx Xxxxxxx to the Company upon death, disability or termination attention of employmentXxxxx Xxxxxxxxxxxxx at Xxxxx.xxxxxxxxxxxxx@xxxxxxxxxxxxx.xxx and to Jefferies to the attention of Xxxxx Xxxx at xxxxx@xxxxxxxxx.xxx, in each casecase with copies to Xxxxxxx X. Xxxxxxxxx, Xx. at xxxxxxx.xxxxxxxxx@xxxxxxxxx.xxx and Xxxxx Xxxxxxxxx at xxxxx.xxxxxxxxx@xxxxxxxxx.xxx. [Name and Address of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) Officer or Director Requesting Waiver] Dear Mr./Ms. [Name]: This letter is being delivered to the Company you in connection with the vestingoffering by Prime Medicine, settlementInc. (the “Company”) of [l] shares of common stock, or exercise $[l] par value (the “Common Stock”), of restricted stock unitsthe Company and the lock-up letter dated _______, options2021 (the “Lock-up Letter”), warrants or other rights executed by you in connection with such offering, and your request for a [waiver] [release] dated_______, 2022, with respect to purchase [l] shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange ActShares”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Prime Medicine, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of [Underwritten Shares: 43,500,000 Number of [ ] Option Shares: 6,525,000 [·[ ] Public Offering Price Per Share: [ ]] None. None. , 2020 J.X. 2015 Xxxxxxx Lynch, Pierce, Xxxxxx Securities & Xxxxx Incorporated Citigroup Global Markets Inc. Xxxxxxxxx LLC Barclays Capital Inc. Canaccord Genuity LLC Xxxxx Xxxxxxx & Co. As Representatives of the several Several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Merrill Lynch, Pierce, Xxxxxx Securities & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/x Xxxxxxxxx LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxx& Co. 000 Xxxxxxxx Xxxx Xxxxxxxxxxx, Xxx Xxxx Xxxxxxxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 ReRE: FuelCell EnergyNantKwest, Inc. --- Public Offering (the “Company”) Ladies and & Gentlemen: The undersigned understands that youis an owner of shares of Class A common stock, as Representatives par value $0.0001 per share, of the several UnderwritersCompany (“Shares”) or of securities convertible into or exchangeable or exercisable for Shares. The Company proposes to conduct a public offering of Shares (the “Offering”) for which Xxxxxxx Lynch, propose to enter Pierce, Xxxxxx & Xxxxx Incorporated (“Merrill”), Citigroup Global Markets Inc., Xxxxxxxxx LLC and Xxxxx Xxxxxxx & Co. will act as the representatives (the “Representatives”) of the underwriters. The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges that the underwriters are relying on the representations and agreements of the undersigned contained in this letter agreement in conducting the Offering and, at a subsequent date, in entering into an underwriting agreement (the “Underwriting Agreement”) and other underwriting arrangements with FuelCell Energy, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 Company with respect to the Underwriting Agreement (the “Underwriters”), of common stock of the Company (the “Securities”)Offering. Capitalized Annex A sets forth definitions for capitalized terms used herein and in this letter agreement that are not otherwise defined shall have the meanings set forth in the Underwriting Agreementbody of this agreement. Those definitions are a part of this agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securitiesforegoing, and for other good and valuable consideration consideration, the receipt and sufficiency of which is are hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, during the Lock-up Period, the undersigned will not (and will cause any Family Member not to), without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersMerrill, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed withhold their consent in their sole discretion: • Sell or Offer to be Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stocksuch Family Member, “Lock-Up Securities”), (2) enter into any hedgingSwap, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for for, or exercise any right with respect to to, the registration under the Securities Act of the offer and sale of any Lock-Up Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (4or an amendment or supplement thereto) with respect to any such registration, or • publicly disclose the announce any intention to do any of the foregoing. The undersigned acknowledges foregoing will not apply to the registration of the offer and agrees that sale of the Shares, and the sale of the Shares to the underwriters, in each case as contemplated by the Underwriting Agreement. In addition, the foregoing precludes restrictions shall not apply to: (i) the transfer of Shares or Related Securities by gift, (ii) the transfer of Shares or Related Securities by will or other testamentary document intestate succession to a legal representative, heir or beneficiary, (iii) the transfer of Shares or Related Securities to a trust whose beneficiaries consist exclusively of one or more of the undersigned from engaging and/or a Family Member, (iv) the transfer of Shares or Related Securities that occurs by operation of law pursuant to a court order or settlement agreement related to the distribution of assets in any hedging connection with the dissolution of a marriage or other transactions civil union, (v) transfers or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) dispositions of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift Shares or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) Related Securities to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersignedcorporation, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities beneficial ownership interests of which are held by the undersigned or similar interests, (v) to a nominee any Family Member of the undersigned, provided that any such transfer or custodian of a person or entity to whom distribution shall not involve a disposition or transfer would be permissible under clauses (i) through (iv) above, for value, (vi) distributions of the undersigned’s Shares or Related Securities to partners, members, stockholders or trust beneficiaries of the undersigned, provided that any such distribution shall not involve a disposition for value, and (vii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) the transfer of Shares or Related Securities to another corporation, partnership, limited liability company, trust or other business entity that is an a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, provided that any such transfer shall not involve a disposition for value; provided, however, that in any such case in this paragraph, it shall be a condition to such transfer that: • each transferee executes and delivers to the Representatives an agreement in form and substance satisfactory to the Representatives stating that such transferee is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage in any investment fund Swap or engage in any other entity controllingactivities restricted under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory hereto), controlled by, managing or managed by or under common control with and • prior to the undersigned or affiliates expiration of the undersigned Lock-up Period, no public disclosure or filing under the Exchange Act by any party to the transfer (includingdonor, for the avoidance of doubtdonee, where the undersigned is a partnership, to its general partner transferor or a successor partnership or fundtransferee) shall be required, or any other funds managed by made voluntarily, reporting a reduction in beneficial ownership of Shares in connection with such partnership)transfer, except in the case of (iv) above, in which case such transfer may be reported in a public disclosure or (B) filing under the Exchange Act or otherwise that is required to be made during the Lock-up Period as part a result of such transfer which includes a distribution to members or shareholders of the undersigned, (vii) statement that such transfer has occurred by operation of law. If the undersigned is an officer or director of the Company, such as the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Shares the undersigned may purchase or otherwise receive in the Offering (including pursuant to a qualified domestic orderdirected share program). Furthermore, divorce settlementnotwithstanding the restrictions imposed by this letter agreement, divorce decree the undersigned may (i) cash exercise an option to purchase Shares granted under any equity incentive plan or separation stock purchase plan of the Company disclosed in the final prospectus related to the Offering (the “Prospectus”), provided that the Shares issued upon such exercise shall continue to be subject to the restrictions on transfer set forth in this letter agreement, , (viiiii) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Shares, provided that (x) there are no sales under such plan during the Lock-up Period and (y) the entry into such plan is not publicly disclosed, including in any filing under the Exchange Act, during the Lock-up Period, (iii) transfer or dispose of Shares acquired on the open market following the Offering, (iv) transfer Shares or Related Securities (A) to the Company from an employee as forfeitures to satisfy tax withholding obligations of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company undersigned in connection with the vesting, settlement, vesting or exercise of restricted stock unitsequity awards pursuant to the Company’s equity incentive plan or outstanding warrants by the undersigned, options, warrants or other rights to purchase shares of Common Stock (including, and disclosed in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rightsProspectus, provided that any Shares acquired in connection with such shares of Common Stock received upon such exercise, vesting or settlement exercise of equity awards or warrants described in this clause (A) shall be subject to the terms of restrictions set forth in this Letter Agreementletter agreement, and provided further that any such restricted stock units, options, warrants (B) pursuant to a net exercise or rights are held cashless exercise by the undersigned of outstanding equity awards pursuant to an agreement or the Company’s equity awards granted under a stock incentive plan or other outstanding warrants disclosed in Prospectus, provided that any Shares acquired upon the net exercise or cashless exercise of equity award plan, each such agreement or plan which is awards described in this clause (B) shall be subject to the Registration Statementrestrictions set forth in this letter agreement, the Pricing Disclosure Package and the Prospectus, or (xiC) pursuant to a bona fide third-party tender offeroffer for all outstanding shares of the Company, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock securities involving a Change of Control (as defined below) of the Company (for purposes hereofincluding, “Change without limitation, the entering into any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Control” shall mean the transfer (whether by tender offer, merger, consolidation common stock or other similar such securities in connection with such transaction, or vote any common stock or other such securities in favor of any such transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar such transaction is not completed, such securities held by the undersigned’s Lock-Up Securities undersigned shall remain subject to the provisions of this Letter Agreementletter agreement, or (D) that may be deemed to have occurred as a result of the cash exercise of warrants, provided that any the Shares issued upon exercise of such warrants shall continue to be subject to the restrictions on transfer set forth in this letter agreement; provided that (A) that, in the case of any a transfer or distribution pursuant to clause (a)(i)iii) above, (ii), (iii), (iv), (v), (vi) and (vii), such no public disclosure or filing under the Exchange Act by any party to the transfer shall not involve a disposition for value and each doneebe required, deviseeor made voluntarily, transferee or distributee shall execute and deliver to during the Representatives a lockLock-up letter in the form of this Letter AgreementPeriod, (B) and provided further that, in the case of any a transfer or distribution pursuant to clause clauses (a)(i), iv)(A) or (ii), (iii), (iv), (v), and (vi)iv)(B) above, no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement reporting a reduction in beneficial ownership shall be required or shall be voluntarily made voluntarily during the Lock-up Period. If the undersigned is an officer or director of the Company, (i) Merrill 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, Merrill will notify the Company of the impending release or waiver, and (ii) the Company (in accordance with the provisions of the Underwriting Agreement) will announce the impending release or waiver by press release through a major news service or, if consented to by Merrill, in a registration statement that is publicly filed in connection with a secondary offering of Shares at least two business days before the effective date of the release or waiver. Any release or waiver granted by Merrill hereunder to any such officer or director shall only be effective two business days after the publication date of such press release or registration statement. The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter agreement that are applicable to the transferor to the extent and for the duration that such terms remain in effect at the time of the transfer. 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 Shares or distribution Related Securities held by the undersigned and the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions. With respect to the Offering only, the undersigned waives any registration rights relating to registration under the Securities Act of the offer and sale of any Shares and/or any Related Securities owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering. The undersigned confirms that the undersigned has not, and has no knowledge that any Family Member has, directly or indirectly, taken any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares. The undersigned will not, and will cause any Family Member not to take, directly or indirectly, any such action. Whether or not the Offering occurs as currently contemplated or at all depends on market conditions and other factors. The Offering will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and the underwriters. The undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned. If (i) the Company notifies the Representatives in writing that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement is not executed before October 31, 2015 (provided that the Company may by written notice to the undersigned prior to October 31, 2015 extend such date for a period of up to an additional three months), or (iii) the Underwriting Agreement (other than a filing on a Form 5 made after the expiration provisions thereof that survive termination) terminates or is terminated prior to payment for and delivery of the Restricted Period referred to above) Firm Shares, then in each case, this letter agreement shall automatically, and (C) in without any action on the case part of any transfer or distribution pursuant to clause (a)(vii)other party, (viii)terminate and be of no further force and effect, (ix) and (x) it the undersigned shall automatically be released from the obligations under this letter agreement. This letter agreement shall be a condition to such transfer that no public filinggoverned by, report or announcement shall be voluntarily made and if any filing under Section 16(a) construed in accordance with, the laws of the Exchange ActState of New York. Very truly yours, or other public filing, report or announcement reporting a reduction Name of Security Holder (Print exact name) By: Signature If not signing in beneficial ownership an individual capacity: Name of shares Authorized Signatory (Print) Title of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;Authorized Signatory (Print)

Appears in 1 contract

Samples: Underwriting Agreement (NantKwest, Inc.)

Pricing Information Provided Orally by Underwriters. Public The number of Underwritten Shares purchased by the Underwriters is 8,333,334. The number of Option Shares is 1,250,000. The public offering price per share: share is $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]27.00. FORM OF LOCK-UP AGREEMENT , 2020 J.X. Xxxxxx Securities 2022 X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity JEFFERIES LLC GUGGENHEIM SECURITIES, LLC XXXXXXX XXXXX & COMPANY, L.L.C. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity Guggenheim Securities, LLC 90 Xxxx Xxxxxx000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 x/x Xxxxxxx Xxxxx 0000 Xxxxxx& Company, Xxxxxxxxxxxxx L.L.C. 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000 Re: FuelCell EnergyVerve Therapeutics, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyVerve Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.001 par value per share (the “Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will will, other testamentary document or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a corporation, partnership, limited liability company company, trust or other entity of which the undersigned and and/or one or more members of the immediate family of the undersigned are are, directly or indirectly, the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution or other transfer to general or limited partners, members or shareholders of, or other holders of equity in, the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree decree, separation agreement or separation agreementcourt order, (viii) to the Company from an employee or other service provider of the Company upon death, disability or termination of employmentemployment or service relationship, in each case, of such employeeemployee or service provider, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in the Public Offering or in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, settlement or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, settlement or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards award granted under a stock incentive plan or other equity award planplan or other arrangement, each such agreement agreement, plan or plan arrangement which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (xi) pursuant to a contract, instruction or plan meeting the requirements of Rule 10b5-1 (a “10b5-1 Plan”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided that such 10b5-1 Plan was established prior to the execution of this Letter Agreement by the undersigned, the existence and details of such 10b5-1 Plan were communicated to the Representatives and such 10b5-1 Plan will not be amended or otherwise modified during the Restricted Period; provided, further, that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate, to the extent permitted by such section and the related rules and regulations, that such transfer was pursuant to a 10b5-1 Plan, or (xixii) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer transfer, disposition or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (viivi), such transfer shall not involve a disposition for value and and, each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(ia) (i), (ii), (iii), (iv), (v), (vi) and (viix), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 or any required Schedule 13F, Schedule 13G or Schedule 13G/A, in each case made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer transfer, disposition or distribution pursuant to clause (a)(viia) (vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Verve Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 15,000,000 Underwritten Shares. 2. The Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 2,250,000 Option Shares. 3. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]18.50. Annex B None 1. HC Group Holdings I, 2020 J.X. LLC 2. Hxxxx X. Xxxxxx Securities Kxxxxxx, Jr. 3. Jxxx X. Xxxxxxx 4. Exxxxxxxx X. Xxxxxx 5. Dxxxx X. Xxxxxxx 6. Axxx Xxxxxxx 7. R. Xxxxxx Pxxx 8. Nxxxx Xxxxxx 9. Txxxxxx X. Xxxxxxxx 10. Mxxx Xxxxxxx 11. Jxxx X. Xxxxxxxxxx 12. Cxxxxxxx X. Xxxxxx 13. Hxxxxxx Xxxxxx 14. Rxxxxxx Xxxxxxx 15. Rxxxxx X. Xxxxxxxx 00. Mxxxxxx Xxxxxxx Gxxxxxx Sxxxx & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sachs & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 13,000,000 Shares. 2. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]30.75. 3. The lock up period for the company, 2020 J.X. Xxxxxx Securities certain directors affiliated with the Selling Stockholder, executive officers and the Selling Stockholder is 30 calendar days. 1. HC Group Holdings I, LLC 2. Axxxx X. Xxxxxxxx 3. Axxxx Xxxxxxxx 4. Mxxx Xxxxxxx 5. Jxxx X. Xxxxxxxxxx 6. Mxxxxxx Xxxxxx 7. Rxxxxxx Xxxxxxx 8. Mxxxxxx Xxxxxxx 9. Cxxxx Xxxxxx 10. Lxxx Xxxxxxxxx Gxxxxxx Sxxxx & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx XX 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sxxxx & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 30 calendar days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), showing a reduction in beneficial ownership or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 11,000,000 Shares. 2. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]33.25. 3. The lock up period for the company, 2020 J.X. certain directors affiliated with the Selling Stockholder, executive officers and the Selling Stockholder is 45 days. 1. HC Group Holdings I, LLC 2. Axxxx X. Xxxxxxxx 3. Axxxx Xxxxxxxx 4. Mxxx Xxxxxxx 5. Jxxx X. Xxxxxxxxxx 6. Rxxxxxx Xxxxxxx 7. Sxxxx Xxxxxxx 8. Mxxxxxx Xxxxxxx 9. Cxxxxx Xxxxxx Securities Gxxxxxx Sxxxx & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sachs & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 45 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), showing a reduction in beneficial ownership or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of [●] Option Shares: 6,525,000 [·], 2020 J.X. ●] Public Offering Price Per Share: $[●] Written Testing-the-Waters Communications Form of Lock-up Agreement X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Xxxxxxxxx LLC Xxxxx and Company, LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Cowen and Company, LLC 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc.Generation Bio Co., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by us/the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.0001 per share par value (the “Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC and Xxxxxxxxx LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will will, other testamentary document or intestacyintestate succession, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a corporation, partnership, limited liability company company, trust or other entity of which the undersigned and and/or one or more members of the immediate family of the undersigned are are, directly or indirectly, the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution or other transfer or distribution to general or limited partners, members or shareholders of, or other holders of equity interests, in the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree decree, separation agreement or separation agreementcourt order, (viii) to the Company from an employee or other service provider of the Company upon death, disability or termination of employment, in each case, of such employeeemployee or service provider, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in the Public Offering or in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement (other than any such securities as are transferred or surrendered to the Company in connection with such exercise, vesting or settlement event) shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards award granted under a stock incentive plan or other equity award plan, each such agreement plan or plan which is other arrangement described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or, (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;or

Appears in 1 contract

Samples: Underwriting Agreement (Generation Bio Co.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of [•] shares Option Shares: 6,525,000 [·]•] shares Public Offering Price Per Share: $[•] Written Testing-the-Waters Communications Form of Lock-Up Agreement , 2020 J.X. Xxxxxx Securities 2021 X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity LLC XXXXX XXXXXXX & CO. XXXXXX, XXXXXXXX & COMPANY, INCORPORATED As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 & Co. 000 Xxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, XX 00000 x/x Xxxxxx, Xxxxxxxxxxxxx Xxxxxxxx & Company, Incorporated Xxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 Re: FuelCell EnergyNurix Therapeutics, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyNurix Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.001 per share (the “Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration consideration, the receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”) on behalf of the several Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for for, or exercise any right with respect to to, the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, including bona fide gifts to a charity or education institution, or for bona fide estate planning purposes, (ii) upon death, by will will, other testamentary document or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a corporation, partnership, limited liability company or other entity of which the undersigned and or the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to stockholders, partners, members or shareholders other equityholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or decree, separation agreement, or related court order, (viii) to the Company (A) from an employee or other service provider of the Company upon death, disability or termination of employmentemployment or service, in each case, of such employeeemployee or other service provider, or (B) pursuant to a right of first refusal that the Company has with respect to transfers of such shares of Common Stock or other securities, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in the Public Offering or in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement (other than such shares as are transferred or surrendered to the Company in connection with such vesting, settlement or exercise event) shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the ProspectusProspectus (including the documents incorporated by reference therein), (xi) sales or transfers of shares of Common Stock pursuant to a trading plan adopted prior to the date hereof pursuant to Rule 10b5-1 (“10b5-1 Trading Plan”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and disclosed to the Representatives prior to the date hereof (such sale or transfer, a “Qualified 10b5-1 Sale”), or (xixii) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 personspersons (other than an Underwriter pursuant to the Public Offering), of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority more than 75% of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause clauses (a)(i), (ii), (iii), (iv), (v) and (vi), such transfer shall not involve a disposition for value; (B) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, ; (BC) in the case of any transfer or distribution pursuant to clause clauses (a)(i), (ii), (iii), (iv), (v), ) and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement reporting a reduction in beneficial ownership of shares of Common Stock shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on Schedule 13D, 13F or 13G or a filing on a Form 5 made after the expiration of the Restricted Period referred to above) 5); and (CD) in the case of any transfer or distribution pursuant to clause clauses (a)(vii), (viii), (ix) x), and (xxi) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Nurix Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per shareOffering Price: $2.10 70.00 per Share Number of Underwritten Shares: 43,500,000 3,571,428 Number of Option Shares: 6,525,000 [·]535,714 None. GXXXXXX SXXXX & CO. LLC LEERINK PARTNERS LLC CXXXX AND COMPANY, 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As as Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities Goldman Sxxxx & Co. LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Leerink Partners LLC 200 Xxxx Xxxxxx, 00xx xxxxx Xxx Xxxx, XX 00000 c/o Cowen and Company, LLC 500 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc.Quanterix Corporation, a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.001 par value per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement (the “Prospectus”) relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stockCommon Stock, $0.0001 0.001 par value per share par valueshare, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, shares of Common Stock or (4) publicly disclose the intention to do any of the foregoingsecurity convertible into or exercisable or exchangeable for Common Stock. The undersigned acknowledges and agrees that the foregoing precludes restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) which is designed or intended, to or which would reasonably could be expected to lead to or result in, in a sale or disposition or transfer (whether by of the undersigned undersigned's shares of Common Stock or any other person) security convertible into Common Stock even if such shares of Common Stock or any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) security convertible into Common Stock would be settled disposed of by delivery of Lock-Up Securities, in cash or otherwisesomeone other than the undersigned. Notwithstanding the foregoing, the undersigned mayThe foregoing shall not apply to: (aA) transfer the Securities to be sold by the undersigned’s Lock-Up Securities:, if any, pursuant to the Underwriting Agreement; (iB) transfers of shares of Common Stock as a bona fide gift or giftsgifts or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate family, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for intestate succession upon the direct or indirect benefit of the undersigned or the immediate family death of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),; (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (viC) if the undersigned is a corporation, partnership, limited liability company, trust company or other business entity, distributions of shares of Common Stock to members or stockholders of the undersigned; (AD) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned to another corporation, partnership, limited liability company, trust company or other business entity that so long as the transferee controls, is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or is under common control with the undersigned and such transfer is not for value; (E) transactions relating to Common Stock or affiliates of other securities convertible into or exercisable or exchangeable for Common Stock acquired by the undersigned (including, for in the avoidance of doubt, where the undersigned is a partnership, to its general partner Public Offering or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for completion of the Public Offering,; (xF) to the Company in connection with entry into any trading plan providing for the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares sale of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under undersigned, which trading plan (a stock incentive plan or other equity award plan, each such agreement or plan which is described in “10b5-1 Plan”) meets the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide thirdrequirements of Rule 10b5-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee1(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), provided, however, that such plan does not provide for, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after permit, the expiration sale of any Common Stock during the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, Act or other public filingannouncement is voluntarily made or required regarding such plan during the Restricted Period; (G) any transfers or dispositions made by or on behalf of the undersigned solely to satisfy tax withholding obligations pursuant to the Company’s equity incentive plans or arrangements disclosed in the Prospectus, report provided that no filing under Section 16(a) of the Exchange Act or other public announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with is voluntarily made regarding such transfer or distribution shall be legally required transfers during the Restricted Period, such filingand provided, report or announcement further, that any filing required under Section 16(a) of the Exchange Act shall clearly indicate in the codes and footnotes thereto that any such disposition of shares was made solely to satisfy the nature undersigned’s tax withholding obligations; (H) any transfers made by the undersigned by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement; (I) to the Company pursuant to agreements under which the Company has the option to repurchase shares or shares are forfeited upon termination of service of the undersigned[; and] (J) dispositions solely in connection with the “cashless” exercise of stock options or warrants to acquire shares of Common Stock described in the Prospectus or issued pursuant to an equity plan or arrangement described in the Prospectus (the term “cashless” exercise being intended to include the sale of a portion of the shares issuable upon exercise of the stock options or warrants or previously owned shares to the Company to cover payment of the exercise price) for the purpose of exercising such stock options or warrants, in any event, solely if such stock options or warrants would otherwise expire, provided that any shares of Common Stock received upon such exercise shall be subject to all of the restrictions set forth in this Letter Agreement and conditions provided, further, that any filing required under Section 16(a) of the Exchange Act shall clearly indicate in the codes and footnotes thereto that any disposition of shares in connection with a “cashless” exercise was made solely to the Company;[ and] (K) [transfers of up to [ ] shares of Common Stock by the undersigned pursuant a 10b5-1 Plan established prior to the date hereof, which 10b5-1 Plan shall not be amended during the Restricted Period but may be terminated during the Restricted Period, provided that to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding sales made under the undersigned’s 10b5-1 Plan, such transfer;announcement or filing shall include a statement to the effect that such sales of Common Stock are being made pursuant to the undersigned’s 10b5-1 Plan established prior to the date hereof;]1 [and] (L) [distributions by funds affiliated with one of our institutional shareholders to their limited partners of up to 850,000 shares of common stock, starting 30 days after the date of this prospectus supplement];2

Appears in 1 contract

Samples: Underwriting Agreement (Quanterix Corp)

Pricing Information Provided Orally by Underwriters. Public offering price per shareOffering Price: $2.10 [·] per Share Number of Underwritten Shares: 43,500,000 [·] Number of Option Shares: 6,525,000 ], 2020 J.X. Xxxxxx Securities ] X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity XXXXXX XXXXXXX & CO. LLC XXXXXXXXX LLC EVERCORE GROUP L.L.C. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Morgan Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, XX 00000 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Evercore Group L.L.C. 00 Xxxx Xxxxxx00xx Xxxxxx Xxx Xxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx XX 00000 Re: FuelCell EnergyAkero Therapeutics, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that youundersigned, as Representatives a director, officer or securityholder of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyAkero Therapeutics, Inc., a Delaware corporation (the “Company”), understands that you, as representatives (the “Representatives”) of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.0001 per share (“Common Stock”) of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lendhedge, lend or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securitiesshares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (and, for the avoidance of doubt, the undersigned hereby waives any and all notice requirements and rights with respect to the registration of any securities pursuant to any agreement, instrument, understanding or otherwise, including any stockholders or registration rights agreement or similar agreement, to which the undersigned is a party or under which the undersigned is entitled to any right or benefit) or (4) publicly disclose the intention to do any of the foregoing, in each case other than (A) the Securities, if any, to be sold by the undersigned pursuant to the Underwriting Agreement, (B) sales or transfers of shares of Common Stock acquired in open market transactions after the consummation of the Public Offering, (C) transfers of shares of Common Stock (i) as a bona fide gift or gifts, (ii) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned in a transaction ot involving a disposition for value or (iii) by operation of law, such as pursuant to a qualified domestic order or as required by a divorce settlement, (D) if the undersigned is an individual, transfers of shares of Common Stock or any security directly or indirectly convertible into Common Stock in a transaction not involving a disposition for value to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or limited partnerships the partners of which are the undersigned and/or the immediate family members of the undersigned, in each case for estate planning purposes, (E) if the undersigned is a trust, distributions of shares of Common Stock or any security directly or indirectly convertible into Common Stock to its beneficiaries in a transaction not involving a disposition for value, (F) if the undersigned is a corporation, limited liability company, partnership (whether general, limited or otherwise) or other entity, distribution of shares of Common Stock or any security directly or indirectly convertible into Common Stock to current or former members, stockholders, limited partners, general partners, subsidiaries or affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or to any investment fund or other entity that controls or manages the undersigned (including, for the avoidance of doubt, a fund managed by the same manager or managing member or general partner or management company or by an entity controlling, controlled by, or under common control with such manager or managing member or general partner or management company as the undersigned or who shares a common investment advisor with the undersigned) in a transaction not involving a disposition for value, (G) transfers of shares of Common Stock to the Company in connection with the exercise of options, warrants or other rights to acquire Common Stock or any security convertible into or exercisable for Common Stock of the Company by way of net exercise and/or to cover withholding tax obligations in connection with such exercise pursuant to an employee benefit plan, option, warrant or other right disclosed in the Prospectus, provided that any such shares issued upon exercise of such option, warrant or other right shall be subject to the restrictions set forth herein; provided that no public report or filing required to be made under Section 16(a) of the Exchange Act or other public filing, report or announcement shall be required or shall be voluntarily made during the period beginning on the date hereof and continuing to and including the date that is 30 days after the date of the Prospectus (the “30 Day Period”), and after such 30th day, if the undersigned is required to file a report under Section 16(a) of the Exchange Act during the Restricted Period, the undersigned shall clearly indicate in the footnotes thereto that such transfer is pursuant to the circumstances described in this clause (G), and provided, further that no other public announcement shall be made voluntarily in connection with such transfer; (H) transfers of shares of Common Stock to a bona fide third party pursuant to a merger, consolidation, tender offer or other similar transaction made to all holders of Common Stock and involving a “Change of Control” of the Company after the Public Offering and approved by the Company’s Board of Directors (with “Change of Control” meaning the transfer of the Company’s voting securities in one transaction or a series of related transactions to a person or group of affiliated persons if, after such transfer, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities of the Company (or the surviving entity)), provided that in the event that such transaction is not completed, the shares of Common Stock held by the undersigned shall remain subject to the restrictions contained in this Letter Agreement, and provided further that in the event any shares of Common Stock not transferred in the Change of Control shall remain subject to the restrictions contained in this Letter Agreement, and provided that in the case of any transfer or distribution pursuant to clause (C), (D), (E), (F) or (G) each donee, transferee, heir, beneficiary or distributee shall execute and deliver to the Representative a lock-up letter in the form of this Letter Agreement; and provided, further, that in the case of any transfer or distribution pursuant to clause (B), (C), (D), (E), or (F), no filing by any party (the undersigned, beneficiary, heir, donor, donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, (“the Exchange Act”) or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 and any required Schedule 13F, 13G or 13G/A, in each case made after the expiration of the Restricted Period referred to above). The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up SecuritiesCommon Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up SecuritiesCommon Stock or any securities convertible into or exercisable or exchangeable for Common Stock, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or anything to the estate of a beneficiary of such trust (for purposes of contrary contained in this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses may (i) through exercise options or warrants to purchase Common Stock of the Company pursuant to employee benefit plans or arrangements disclosed in the Prospectus (ivprovided that (a) above, any Common Stock received upon such exercise or exchange will be subject to the restrictions provided for under this Letter Agreement and (vib) if the undersigned is required to file 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 report under the Securities Act of 1933, as amendedSection 16(a) of the undersignedExchange Act during the Restricted Period, 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 shall clearly indicate in the undersigned (including, for the avoidance of doubt, where the undersigned footnotes thereto that such transfer is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to the circumstances described in this clause) and (ii) enter into any plan designed to satisfy the requirements of Rule 10b5-1 (a qualified domestic order, divorce settlement, divorce decree or separation agreement, “10b5-1 Plan”) under the Exchange Act (viii) other than the entry into such a plan in such a manner as to allow the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (includingwithin the Restricted Period); provided, in each casehowever, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares no sale of Common Stock received upon may be made under such exercise, vesting or settlement shall be subject to 10b5-1 Plan during the terms of this Letter AgreementRestricted Period, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions establishment of such transfer;plan.

Appears in 1 contract

Samples: Underwriting Agreement (Akero Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 5,000,000 shares of Common Stock Option Shares: 6,525,000 [·], 2020 J.X. 750,000 shares of Common Stock Public Offering Price Per Share: $100.00 FORM OF LOCK-UP AGREEMENT X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity TD Securities (USA) LLC Xxxxxxxxx LLC Xxxxxx, Xxxxxxxx & Company, Incorporated As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10179 c/o Barclays Capital Inc. 700 TD Securities (USA) LLC 0 Xxxxxxxxxx Xxxxxx New York, NY 10017 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10022 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxxx & Company, Incorporated Xxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergySuite 3700 San Francisco, Inc. --- Public Offering California 94104 Ladies and Gentlemen: The undersigned understands that youX.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”), Xxxxx and Company (“Xxxxx”), LLC, Xxxxxxxxx LLC (“Xxxxxxxxx”) and Xxxxxx, Xxxxxxxx & Company, Incorporated, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyNuvalent, Inc., Inc. a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of the Shares (as defined in the Underwriting Agreement), which consists of Class A common stock stock, par value $0.0001 per share of the Company ([together with the Company’s Class B common stock, par value $0.001 per share,] the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the SecuritiesShares, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC X.X. Xxxxxx, Xxxxx and Xxxxxxxxx on behalf of the Underwriters, the undersigned will not, and, [to the extent the undersigned is not (i) an investment company (a “40 Act Fund”) registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), advised or controlled by multiple investment managers or the investment manager of such ‘40 Act Fund, (ii) an investment fund that is exempt from the registration requirements under the Investment Company Act and managed by an investment advisor registered with the SEC pursuant to the Investment Advisors Act of 1940, as amended, or (iii) an affiliate of the entities described in clauses (i) and (ii) (clauses (i), (ii) and (iii) collectively, “Specified Persons”),] will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 30 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up SecuritiesSecurities [(other than an Underwritten Sale in connection with a Triggering Release (as defined herein))], or (4) publicly disclose the intention to do any of the foregoing. [For the avoidance of doubt, to the extent the undersigned has demand and/or piggyback registration rights, the foregoing shall not prohibit the undersigned from notifying the Company privately that it is or will be exercising its demand and/or piggyback registration rights following the expiration of the Restricted Period and undertaking preparations related thereto; provided that the foregoing notification and/or preparations do not request, require or result in the filing or confidential submission of a registration statement with the Securities and Exchange Commission or any other public announcement or activity regarding such registration by the undersigned, the Company or any third party during the Restricted Period (and no such filing, confidential submission, public announcement or activity shall be voluntarily made or taken by the undersigned, the Company or any third party during the Restricted Period without the prior written consent of X.X. Xxxxxx, Xxxxx and Xxxxxxxxx).] The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in, or[, to the extent the undersigned is not a Specified Person,] directing any affiliate to engage in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. [The undersigned further confirms that neither the undersigned nor any of its affiliates, is a party, as of the date hereof, to a transaction that would have been restricted by this Letter Agreement if it had been entered into by the undersigned during the Restricted Period.] Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, or to a charitable organization or educational institution in a transfer not involving a disposition for value, (ii) by will or other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned upon the death of the undersigned intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor grantor, trustor, trustee or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and and/or the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control [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), or (B) as part of a distribution distribution, transfer or disposition to members members, limited partners, general partners, stockholders or shareholders other equityholders of the undersignedundersigned or to the estate of any such members, limited partners, general partners, stockholders or equityholders, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreementagreement or other court order, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale sale[, transfer or other disposition] of the undersigned’s Lock-Up Securities acquired [(A) from the Underwriters in the Offering or (B) from the Company in a registered direct offering, or (C)] in open market transactions [on or after the date of the Prospectus][after the closing date for the Public Offering][, and the undersigned may otherwise enter into or effectuate any transaction involving any Lock-Up Securities acquired in a transaction described in clause (A), (B) or (C)], (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of of, Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or, (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entityentity )); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;,

Appears in 1 contract

Samples: Underwriting Agreement (Nuvalent, Inc.)

Pricing Information Provided Orally by Underwriters. Number of Underwritten Shares to be sold: 4,188,481 Number of Option Shares: 628,272 Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 9.55 January [·], 2020 J.X. Xxxxxx Securities 2018 X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity XXXXX AND COMPANY, LLC XXXXX XXXXXXX & CO. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Cowen and Company, LLC 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxxx Xxxxxxx & Co. 000 Xxxx Xxxxxx, 00xx Xxxxx 0000 XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000 Re: FuelCell EnergySyros Pharmaceuticals, Inc. --- Public Offering Ladies and Gentlemenof Shares of Common Stock Dear Sir or Madam: The undersigned understands that you, as Representatives of This Agreement is being delivered to you in connection with the several Underwriters, propose to enter into an proposed underwriting agreement (the “Underwriting Agreement”) with FuelCell Energyby and among Syros Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”), Xxxxx and Company, LLC and Xxxxx Xxxxxxx & Co. (Xxxxx and Company, LLC and Xxxxx Xxxxxxx & Co., together with X.X. Xxxxxx, the “Representatives”) as Representatives of the several Underwriters named in Schedule A to the Underwriting Agreement (the “Underwriters”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to of shares of the Underwriting Agreement common stock, par value $0.001 per share (the “UnderwritersCommon Stock”), of common stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting AgreementCompany. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the SecuritiesCommon Stock, and for other good and valuable consideration consideration, the receipt and sufficiency of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf with each of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate toRepresentatives that, during the period beginning on the date of this letter agreement (this “Letter Agreement”) hereof through and ending at on the close of business 90 days date that is the sixtieth (60th) day after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Lock-Up Period”), the undersigned will not, without the prior written consent of X.X. Xxxxxx, directly or indirectly, (1i) offer, sell, assign, transfer, 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, lend, or otherwise transfer or dispose of, directly or indirectlyannounce the intention to otherwise dispose of, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amendedamended (such shares, the “Beneficially Owned Shares,” and such act, the “Securities Act”)), or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap, hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the undersignedBeneficially Owned Shares or securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or to any investment fund or other entity controlling, controlled by, managing or managed hereafter acquired by or under common control with the undersigned or affiliates with respect to which the undersigned has or hereafter acquires the power of disposition, or (iii) engage in any short selling of the undersigned Common Stock or securities convertible into or exercisable or exchangeable for Common Stock. The restrictions set forth in the second paragraph shall not apply to: (including, for the avoidance of doubt, where 1) if the undersigned is a partnershipnatural person, to its general partner or a successor partnership or fund, or any other funds managed transfers made by such partnership), or the undersigned (Ba) as part a bona fide gift, (b) to any member of the immediate family (as defined below) of the undersigned or to a distribution to trust the beneficiaries of which are exclusively the undersigned or members or shareholders of the undersigned, ’s immediate family, (viic) by will or intestate succession upon the death of the undersigned; or (d) by operation of law, such as pursuant to a qualified domestic order, order or in connection with a divorce settlement, divorce decree or separation agreement,; (viii2) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfers to any stockholder, partner or member of, or owner of a similar equity interest in, the Company from an employee of undersigned, as the Company upon deathcase may be, disability or termination of employmentif, in each any such case, of such employee,transfer is not for value; and (ix3) as part if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned (a) in connection with the sale or other bona fide transfer in a single transaction of a sale all or substantially all of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vestingcapital stock, settlementpartnership interests, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation membership interests or other similar transaction equity interests, as the case may be, or all or substantially all of the Company that undersigned’s assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this agreement or (b) to another corporation, partnership, limited liability company or other business entity so long as the transferee is made to all holders of the Company’s capital stock involving a Change of Control an affiliate (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the undersigned and such 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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completedfor value; provided, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided however, that (A) in the case of any transfer or distribution pursuant to described in clause (a)(i1), (ii)2) or (3) above, (iii), (iv), (v), (vi) and (vii), such transfer it shall not involve be a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver condition to the Representatives transfer that (A) the transferee executes and delivers to the Representatives, not later than one (1) business day prior to such transfer, a lock-up letter written agreement, in substantially the form of this Letter Agreementagreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to X.X. Xxxxxx, and (B) in the case of any transfer or distribution pursuant to described in clause (a)(i1), (ii)2) or (3) above, (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributeeif the undersigned is required to file a report under Section 16(a) under of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock or Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares during the Lock-Up Period, the undersigned shall include a statement in such report to the effect that, (i) in the case of any transfer pursuant to clause (1) above, such transfer is being made as a gift or by will or intestate succession, (ii) in the case of any transfer pursuant to clause (2) above, such transfer is being made to a stockholder, partner or member of, or owner of a similar equity interest in, the undersigned and is not a transfer for value, and (iii) in the case of any transfer pursuant to clause (3) above, such transfer is being made either (a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets or (b) to another corporation, partnership, limited liability company or other business entity that is an affiliate of the undersigned and such transfer is not for value. For purposes of this paragraph, “immediate family” shall mean a spouse, child, grandchild or distribution other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act. For avoidance of doubt, nothing in this Agreement prohibits the undersigned from exercising any options or warrants to purchase Common Stock (which exercises may be legally required during effected on a cashless basis to the Restricted Periodextent the instruments representing such options or warrants permit exercises on a cashless basis), it being understood that any Common Stock issued upon such filing, report or announcement shall clearly indicate in exercises will be subject to the footnotes thereto the nature and conditions restrictions of such transfer;this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Syros Pharmaceuticals, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]set out key information included in script that will be used by Underwriters to confirm sales] Written Testing-the-Waters Communications [None] FORM OF LOCK-UP AGREEMENT X. X. XXXXXX SECURITIES LLC XXXXXXX LYNCH, 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X. X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned undersigned, understands that you, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyEidos Therapeutics, Inc., a Delaware corporation (the “Company”), providing for the initial public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.001 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X. X. Xxxxxx Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at 180 days (the close of business 90 days “Lock-up Period”) after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) lend, 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;the

Appears in 1 contract

Samples: Underwriting Agreement (Eidos Therapeutics, Inc.)

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Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 20,000,000 shares of Common Stock of the Company and has granted an option to the Underwriters to purchase up to an additional 3,000,000 shares of Common Stock of the Company. 2. The public offering price per share: $2.10 Number share for the shares of Underwritten Shares: 43,500,000 Number Common Stock of Option Shares: 6,525,000 [·]the Company shall be as to each investor, 2020 J.X. the price paid by such investor. A. Directors of the Company: 1. Xxxxx X. Xxxx 2. Xxx Xxxxxxx 3. Xxxxxx van Dokkum 4. Xxxxx Xxxxxx 5. Xxxxx Xxxxxxxx 6. Xxxxxxx Xxxxx 7. Xxxxxx X. Xxxxxx 8. Xxxxxx X. Xxxxxxxxx 9. Xxxxx X. Xxxxxxxxxx B. Officers of the Company: 1. Xxxxx X. Xxxxxx 2. Xxxxxxxx Xxxxxxxxxx 3. Xxxxx X. Xxxxxxx 4. Xxxx Xxxx 5. Xxxxxxxxx Xxxx 6. Xxxxxx Xxxxxxx 7. Xxxx Xxxxxx 8. Xxxxxxx Xxxxxxx 9. Xxxxxxx Xxxxx 10. Xxxx Xxxxxxxxxxx 11. Xxxxx Xxxxxx 12. Xxxxx Xxxxxx 13. Xxxxxx Jincheng Zhu C. Selling Stockholder: 1. VPE Holdings, LLC D. E&I Sellers: 1. Powerbar Limited 2. Xxxxxx XxXxxxxx 3. Xxxxxx XxXxxxxxxx 4. Xxxxxx Xxxxxxxx 5. Xxxx Xxxxxxxx 6. Xxxxxxx Xxxxxx FORM OF LOCK-UP AGREEMENT FORM OF LOCK-UP AGREEMENT X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Vertiv Holdings Co — Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc.Vertiv Holdings Co, a Delaware corporation (the “Company”), and VPE Holdings, LLC (the “Selling Stockholder”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (collectively, the “Underwriters”), of Class A common stock stock, par value $0.0001 per share, of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Common Stock and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 on the date that is [60/30] days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make take any demand for or exercise any right action that shall require the Company to file with respect the Commission a registration statement under the Act relating to the registration of any Lock-Up SecuritiesSecurities during the Restricted Period; provided that, the Company may make a confidential or non-public submission with the Commission of a registration statement under the Act relating to the Lock-Up Securities during the Restricted Period, so long as any such confidential or non-public submission shall not become a publicly available registration statement during the Restricted Period, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) , or may cause any direct or indirect affiliate to, transfer the undersigned’s Lock-Up Securities: (iA) to be sold by the undersigned pursuant to the Underwriting Agreement in connection with the Public Offering; (B) as a bona fide gift gift, gifts or gifts, charitable contributions or for bona fide estate planning purposes,; (iiC) by will to limited partners, members, stockholders or intestacy,other equity holders of the undersigned, or to limited partners, members, stockholders or other equity holders of any such persons, or to the estate of any such persons; (iiiD) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousincousins),; (ivE) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, ’s affiliates or to any investment fund or other entity controlling, controlled by, managing or managed by the undersigned; (F) at death by will, other testamentary document or under common control with intestate succession to the undersigned legal representative, heir, beneficiary or affiliates a member of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders immediate family of the undersigned,; and (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ixG) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause clauses (a)(iB) through (F), (ii)i) any such transfer or distribution is not “for value”, (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and ii) each donee, deviseedistributee or transferee, transferee or distributee as applicable, shall execute and deliver to the Representatives Underwriters a lock-up letter substantially in the form of this Letter Agreement, (B) with a term lasting for the balance of the Restricted Period; and provided, further, that in the case of any transfer or distribution pursuant to clause clauses (a)(i), B) through (ii), (iii), (iv), (v), and (viG), no filing by any party to such transfer or distribution (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), reporting a reduction in the beneficial ownership thereof or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution distribution, in each case during the Restricted Period (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to Period). Furthermore, notwithstanding the restrictions contained above) and (C) in , the case of undersigned may, or may cause any transfer direct or distribution pursuant to clause (a)(vii)indirect affiliate to, (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) without the prior written consent of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;Underwriters:

Appears in 1 contract

Samples: Underwriting Agreement (Vertiv Holdings Co)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 8,000,000 Number of Option Shares: 6,525,000 [·]1,200,000 Price to public: $11.00 per share FORM OF LOCK-UP AGREEMENT , 2020 J.X. Xxxxxx Securities 20 X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity LLC CITIGROUP GLOBAL MARKETS INC. EVERCORE GROUP L.L.C. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Evercore Group L.L.C. 00 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOraSure Technologies, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOraSure Technologies, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.000001 per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect controlled affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 0.000001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stockcollectively, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) as a bona fide gift to charity or education institution, (iii) by will or intestacy, (iiiiv) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (ivv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (vvi) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vivii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (viiviii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viiiix) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ixx) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (xxi) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xixii) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (viiviii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, Agreement and (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi), (vii), (x) and (vixi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Orasure Technologies Inc)

Pricing Information Provided Orally by Underwriters. Public The public offering price per share: share for the Shares is $2.10 14.00. Number of Underwritten Shares: 43,500,000 7,150,000 Number of Option Shares: 6,525,000 [·]1,072,500 Crinetics Pharmaceuticals, 2020 J.X. Xxxxxx Securities Inc. Pricing Term Sheet None SVB LEERINK LLC Barclays Capital Inc. Canaccord Genuity LLC PXXXX XXXXXXX & CO. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities SVB Leerink LLC 300 Oxx Xxxxxxx Xxxxxx Xxx XxxxXxxxxx, Xxx Xxxx 00xx Xxxxx Xxxxxx, XX 00000 c/o Barclays Capital Inc. 700 Pxxxx Xxxxxxx Xxxxxx Xxx & Co. 800 Xxxxxxxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 XxxxxxXxxxxxxxxxx, Xxxxxxxxxxxxx XX 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that youundersigned, as Representatives a stockholder of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyCrinetics Pharmaceuticals, Inc., a Delaware corporation (the “Company”), understands that you, as representatives (the “Representatives”) of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.001 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities SVB Leerink LLC and Pxxxx Xxxxxxx & Co. on behalf of the Underwriters, the undersigned will not, not (and will not cause any direct spouse or indirect affiliate immediate family member of the spouse or the undersigned living in the undersigned’s household not to, ) during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) lend, 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, lendhedge, lend or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securitiesshares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (and, for the avoidance of doubt, the undersigned hereby waives any and all notice requirements and rights with respect to the registration of any securities pursuant to any agreement, instrument, understanding or otherwise, including any stockholders or registration rights agreement or similar agreement, to which the undersigned is a party or under which the undersigned is entitled to any right or benefit) or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that , in each case other than (A) the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other personpursuant to the Underwriting Agreement, (B) transfers of any economic consequences shares of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) Common Stock as a bona fide gift or gifts, (C) distributions of shares of Common Stock to limited or for bona fide estate planning purposes, general partners, members or stockholders of the undersigned, (iiD) by will transfers to an immediate family member or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the an immediate family of the undersignedmember, or if the undersigned is a trust(E) transfers to any corporation, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the undersigned and undersigned, (F) transfers by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned are undersigned, (G) transfers pursuant to a court or regulatory agency order, a qualified domestic order or in connection with a divorce settlement, (H) transfers to the legal and beneficial owner Company in connection with the “net” or “cashless” exercise of all options or other rights to purchase shares of Common Stock granted pursuant to an equity incentive plan, stock purchase plan or other arrangement described in the Prospectus (including the documents incorporated by reference) in satisfaction of any tax withholding obligations through cashless surrender or otherwise, provided, that, any shares of Common Stock issued upon exercise of such option or other rights shall continue to be subject to the restrictions set forth herein until the expiration of the outstanding equity securities or similar interests, Restricted Period, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (viI) if the undersigned is an investment company registered under the Investment Company Act of 1940, as amended (a corporation“Mutual Fund”), partnershiptransfers pursuant to a merger or reorganization with or into another Mutual Fund that shares the same investment adviser registered pursuant to the requirements of the Investment Advisers Act of 1940, limited liability companyas amended, trust or other business entity, and (AJ) transfers to another corporation, partnership, limited liability company, trust or other business entity that is an any affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, undersigned or to any investment fund or other entity controlling, controlled by, managing or managed by the undersigned or under common management or control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause clauses (a)(iB), (iiC), (iiiD), (ivE), (vF), (vi) and (viiG), such transfer shall not involve a disposition for value and (I) or (J), each doneetransferee, devisee, transferee donee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreementparagraph; provided, (B) further, that in the case of any transfer or distribution pursuant to clause clauses (a)(iC), (iiD), (iiiE), (ivF), (vG) and (J), such transfer shall not involve a disposition for value; and provided, further, that in the case of any transfer or distribution pursuant to clauses (viB) through (J), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) ). If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the case Public Offering. Further, a transfer of Securities to the Company in connection with any transfer contractual arrangement in effect on the date of the Prospectus that provides for the repurchase of the undersigned’s shares by the Company in connection with the termination of the undersigned’s employment or distribution pursuant to clause (a)(vii)other services with the Company is permitted, (viii), (ix) and (x) it shall be a condition to such transfer provided that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally voluntarily made and if the undersigned is required during to file a report under Section 16 of the Restricted Period, such filing, report or announcement shall clearly indicate Exchange Act reporting a reduction in the footnotes thereto the nature and conditions of such transfer;beneficial

Appears in 1 contract

Samples: Underwriting Agreement (Crinetics Pharmaceuticals, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 10,000,000 Price to Public: $29.50 per share Underwriting Discounts and Commissions: $1.77 per share Persons Signing a Lock-Up Agreement Executive Officers • Xxxxxx Mates, Ph.D. • Xxxxxxxx X. Xxxxxxxx • Xxxxxxx X. Xxxxxxxx • Xxxxxx Xxxxxx, M.D. • Xxxx Xxxxxxx Directors • Xxxxxxxxxxx Xxxxx, Ph.D. • Xxxxxxx Xxxxxx, M.D. • Xxxx X. Xxxxxx • Xxxx X. Xxxxx • Xxxxxx X. Xxx Xxxxxxxx Stockholders • Alafi Capital Company, LLC • Xxxxxxxxxxx X. Xxxxx as Trustee of Option Shares: 6,525,000 [·]The Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx Generation-Skipping Trust • Xxxxxxxxxxx X. Xxxxx Family Trust • Xxxxxx Family Trust UAD 11/14/94 • Alexandria Equities, 2020 J.X. LLC • Alexandria Real Estate Equities, Inc. • Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx Family Trust • New Ventures I, LLC FORM OF LOCK-UP AGREEMENT X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity SVB Leerink LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below hereto c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 SVB Leerink LLC Xxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, 00xx Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyIntra-Cellular Therapies, Inc. --- — Follow-on Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyIntra-Cellular Therapies, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.0001 per share par value (the “Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives, on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any other derivative transaction security convertible into or instrument, however described exercisable or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownershipexchangeable for Common Stock, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned mayeach case other than: (aA) transfer the undersigned’s Lock-Up Securities: (i) transfers of shares of Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiB) by will transfers or intestacy,distributions of shares of Common Stock to limited or general partners, members or stockholders or direct or indirect affiliates of the undersigned, including funds or other entities under common control or management with the undersigned; (iiiC) transfers of shares of Common Stock to any immediate family member, any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, undersigned or if any of their successors upon death or any partnership or limited liability company the partners or members of which consist of the undersigned is and one or more members of the undersigned’s immediate family, provided that such transfers shall not involve a trust, disposition of value; (D) transfers of shares of Common Stock to a trustor or any beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) undersigned pursuant to a partnershipwill, limited liability company other testamentary document or other entity applicable laws of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigneddescent, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified including domestic order, divorce settlement, divorce decree or separation agreement,relations orders; (viiiE) transfers of shares of Common Stock to the Company from for the primary purpose of satisfying any tax or other governmental withholding obligation with respect to shares of Common Stock issued upon the exercise of an option or warrant or the vesting of a restricted stock unit (or upon the exchange of another security or securities) outstanding on or prior to the date of the Prospectus, or issued under an employee equity or benefit plan in existence on or prior to the date of the Company upon death, disability or termination of employment, in each case, of such employee,Prospectus; (ixF) as part dispositions of a sale shares of the undersigned’s Lock-Up Securities Common Stock or any security convertible into or exercisable or exchangeable for shares of Common Stock acquired in open market transactions after the closing date for completion of the Public Offering,; (xG) to the Company in connection with the vesting, settlement, or exercise establishment of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned trading plan pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide thirdRule 10b5-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) 1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period and no filing or other public announcement regarding such plan shall be required or voluntarily made during the Restricted Period; and (H) if the undersigned is an individual, sales pursuant to a trading plan pursuant to Rule 10b5-1 under the Exchange Act established before the date of the Prospectus; provided, that any filing made under the Exchange Act in connection with such transfer or distribution a sale shall be legally required during disclose that the Restricted Period, such filing, report or announcement shall clearly indicate in sale was made pursuant to a Rule 10b5-1 trading plan entered into on a date before the footnotes thereto date of the nature and conditions of such transferProspectus;

Appears in 1 contract

Samples: Underwriting Agreement (Intra-Cellular Therapies, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 12,000,000 Underwritten Shares. 2. The Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,800,000 Option Shares. 3. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 20.00. 4. The lock up period for the company, certain directors affiliated with the Selling Stockholder, executive officers and the Selling Stockholder is 60 days. None 1. HC Group Holdings I, LLC 2. Hxxxx X. Xxxxxx Kxxxxxx, Jr. 3. Exxxxxxxx X. Xxxxxx 4. Txxxxxx X. Xxxxxxxx 5. Mxxx Xxxxxxx 6. Jxxx X. Xxxxxxxxxx 7. Cxxxxxxx X. Xxxxxx 8. Hxxxxxx Xxxxxx 9. Rxxxxxx Xxxxxxx 10. Rxxxxx X. Xxxxxxxx 00. Mxxxxxx Xxxxxxx March [·], 2020 J.X. Xxxxxx Securities 2021 Gxxxxxx Sxxxx & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sachs & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 4,750,000 Price to Public: $24.00 per share Underwriting Discounts and Commissions: $1.44 per share None Executive Officers • Xxxxxx Mates, Ph.D. • Xxxxxxxx X. Xxxxxxxx • Xxxxx X. Xxxxxxxx, Ph.D. • Xxxx X. Xxxxxxx • Xxxxxxxx X. Xxxxxxxx, Ph.D. • Xxxxxxxx X. Xxxxxxx, Ph.D. • Xxxxxxx Xxxxxxxx Directors • Xxxxxxxxxxx Xxxxx, Ph.D. • Xxxxxxx Xxxxxx, M.D. • Xxxx X. Xxxxxx • Xxxx Xxxxx • Xxxxxx Xxx Xxxxxxxx Stockholders • Alafi Capital Company, LLC • Xxxxx Xxxxx • Xxxxxxxxxxx X. Xxxxx as Trustee of Option Shares: 6,525,000 [·]The Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx Generation-Skipping Trust • Xxxxxx Family Trust UAD 11/14/94 • Alexandria Equities, 2020 J.X. LLC • Alexandria Real Estate Equities, Inc. • Xxxx X. Xxxxxx Securities and Xxxxxxx X. Xxxxxx Family Trust • New Ventures I, LLC Barclays Capital Inc. Canaccord Genuity , 2015 Leerink Partners LLC Xxxxx and Company, LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below hereto c/o J.X. Leerink Partners LLC 0000 Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Cowen and Company, LLC 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx XX 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyIntra-Cellular Therapies, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, $0.0001 per share par value (the “Common Stock”) of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities Leerink Partners LLC and Xxxxx and Company, LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction or instrument, however described or definedthan: (A) designed or intended, or which would reasonably any Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement; (aB) transfer the undersigned’s Lock-Up Securities: (i) transfers of shares of Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiC) by will transfers or intestacy,distributions of shares of Common Stock to limited or general partners, members or stockholders or direct or indirect affiliates of the undersigned, including funds or other entities under common control or management with the undersigned; (iiiD) transfers of shares of Common Stock to any immediate family member, any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, undersigned or if any of their successors upon death or any partnership or limited liability company the partners or members of which consist of the undersigned is and one or more members of the undersigned’s immediate family, provided that such transfers shall not involve a trust, disposition of value; (E) transfers of shares of Common Stock to a trustor or any beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) undersigned pursuant to a partnershipwill, limited liability company other testamentary document or other entity applicable laws of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigneddescent, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified including domestic order, divorce settlement, divorce decree or separation agreement,relations orders; (viiiF) transfers of shares of Common Stock to the Company from for the primary purpose of satisfying any tax or other governmental withholding obligation with respect to shares of Common Stock issued upon the exercise of an option or warrant (or upon the exchange of another security or securities) outstanding on or prior to the date of the Prospectus, or issued under an employee equity or benefit plan in existence on or prior to the date of the Company upon death, disability or termination of employment, in each case, of such employee,Prospectus; (ixG) as part dispositions of a sale shares of the undersigned’s Lock-Up Securities Common Stock or any security convertible into or exercisable or exchangeable for shares of Common Stock acquired in open market transactions after the closing date for completion of the Public Offering,; and (xH) to the Company in connection with the vesting, settlement, or exercise establishment of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned trading plan pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide thirdRule 10b5-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) 1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with for the transfer of shares of Common Stock, provided that such plan does not provide for the transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock during the restricted period specified in connection with this Letter Agreement and no filing or other public announcement regarding such transfer or distribution plan shall be legally required or voluntarily made during the Restricted Period, such filing, report or announcement shall clearly indicate restricted period specified in the footnotes thereto the nature and conditions of such transfer;this Letter Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Intra-Cellular Therapies, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number 5,357,143 shares of Common Stock Option Shares: 6,525,000 [·]803,571 shares of Common Stock Public Offering Price Per Share: $56.00 FORM OF LOCK-UP AGREEMENT X.X. XXXXXX SECURITIES LLC XXXXX AND COMPANY, 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC XXXXX XXXXXXX & CO. BMO CAPITAL MARKETS CORP. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10179 c/x Xxxxx and Company, LLC 000 Xxxxxxxxx Xxxxxx New York, New York, 10022 c/o Barclays Capital Inc. 700 Xxxxx Xxxxxxx & Co. 0000 Xxxxxx Xxx Xxxxxx xxx Xxxxxxxx New York, Xxx Xxxx 00000 New York 10020 c/o Canaccord Genuity LLC 90 BMO Capital Markets Corp. 000 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxxxxx32nd Floor New York, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering New York 10036 Ladies and Gentlemen: The undersigned understands that youX.X. Xxxxxx Securities LLC, Xxxxx and Company, LLC, Xxxxx Xxxxxxx & Co. and BMO Capital Markets Corp., as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyNuvalent, Inc., Inc. a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of the Shares (as defined in the Underwriting Agreement), which consists of Class A common stock stock, par value $0.0001 per share of the Company ([together with the Company’s Class B common stock, par value $0.001 per share,] the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the SecuritiesShares, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC the Representatives, on behalf of the Underwriters, the undersigned will not, and, [to the extent the undersigned is not (i) an investment company (a “40 Act Fund”) registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), advised or controlled by multiple investment managers or the investment manager of such ‘40 Act Fund, (ii) an investment fund that is exempt from the registration requirements under the Investment Company Act and managed by an investment advisor registered with the SEC pursuant to the Investment Advisors Act of 1940, as amended, or (iii) an affiliate of the entities described in clauses (i) and (ii) (clauses (i), (ii) and (iii) collectively, “Specified Persons”),] will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 [45][60] days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up SecuritiesSecurities [(other than an Underwritten Sale in connection with a Triggering Release (as defined herein))], or (4) publicly disclose the intention to do any of the foregoing. [For the avoidance of doubt, to the extent the undersigned has demand and/or piggyback registration rights, the foregoing shall not prohibit the undersigned from notifying the Company privately that it is or will be exercising its demand and/or piggyback registration rights following the expiration of the Restricted Period and undertaking preparations related thereto; provided that the foregoing notification and/or preparations do not request, require or result in the filing or confidential submission of a registration statement with the Securities and Exchange Commission or any other public announcement or activity regarding such registration by the undersigned, the Company or any third party during the Restricted Period (and no such filing, confidential submission, public announcement or activity shall be voluntarily made or taken by the undersigned, the Company or any third party during the Restricted Period without the prior written consent of the Representatives).] The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in, or[, to the extent the undersigned is not a Specified Person,] directing any affiliate to engage in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. [The undersigned further confirms that neither the undersigned nor any of its affiliates, is a party, as of the date hereof, to a transaction that would have been restricted by this Letter Agreement if it had been entered into by the undersigned during the Restricted Period.] Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, or to a charitable organization or educational institution in a transfer not involving a disposition for value, (ii) by will or other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned upon the death of the undersigned intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor grantor, trustor, trustee or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and and/or the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control [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), or (B) as part of a distribution distribution, transfer or disposition to members members, limited partners, general partners, stockholders or shareholders other equityholders of the undersignedundersigned or to the estate of any such members, limited partners, general partners, stockholders or equityholders, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreementagreement or other court order, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale sale[, transfer or other disposition] of the undersigned’s Lock-Up Securities acquired [(A) from the Underwriters in the Public Offering or (B) from the Company in a registered direct offering, or (C)] in open market transactions [on or after the date of the Prospectus][after the closing date for the Public Offering][, and the undersigned may otherwise enter into or effectuate any transaction involving any Lock-Up Securities acquired in a transaction described in clause (A), (B) or (C)], (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of of, Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or, (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entityentity )); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;,

Appears in 1 contract

Samples: Underwriting Agreement (Nuvalent, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Selling Stockholder is selling 15,000,000 Underwritten Shares. 2. The Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 2,250,000 Option Shares. 3. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·]20.00. 4. The lock up period for the company, 2020 J.X. certain directors affiliated with the Selling Stockholder, executive officers and the Selling Stockholder is 60 days. None 1. HC Group Holdings I, LLC 2. Hxxxx X. Xxxxxx Securities Kxxxxxx, Jr. 3. Exxxxxxxx X. Xxxxxx 4. Txxxxxx X. Xxxxxxxx 5. Mxxx Xxxxxxx 6. Jxxx X. Xxxxxxxxxx 7. Cxxxxxxx X. Xxxxxx 8. Hxxxxxx Xxxxxx 9. Rxxxxxx Xxxxxxx 10. Rxxxxx X. Xxxxxxxx 00. Mxxxxxx Xxxxxxx Gxxxxxx Sxxxx & Co. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx 200 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several UnderwritersUnderwriter, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement Gxxxxxx Sachs & Co. LLC (the “UnderwritersUnderwriter), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersUnderwriter, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price Price per share: $2.10 37.00 Number of Underwritten Shares: 43,500,000 10,810,810 Number of Option Shares: 6,525,000 1,621,621 [·], 2020 J.X. Xxxxxx Securities Form of Lock-up Agreement] X. X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity XXXXX XXXXXXX & CO. XXXXXXXXX LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X. X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 c/o Xxxxx Xxxxxxx & Co. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as the Representatives (“Representatives”) of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyDeciphera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock Common Stock, $0.01 per share par value, of the Company (the “Securities”). Capitalized terms used herein in this agreement (this “Lock-Up Agreement”) and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, that the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) Lock-Up Agreement and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stockCommon Stock, $0.0001 0.01 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, Lock-Up SecuritiesUndersigned’s Shares”), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesUndersigned’s Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction or instrument, however described or definedthan: (A) designed or intended, or which would reasonably any Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding pursuant to the foregoing, the undersigned may:Underwriting Agreement, (aB) transfer transfers of shares of the undersignedUndersigned’s Lock-Up Securities: (i) Shares as a bona fide gift or gifts, provided that the donee or for bona fide estate planning purposesdonees thereof agree to be bound in writing by the restrictions set forth herein, (iiC) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, the undersigned may transfer the Undersigned’s Shares (x) to another corporation, partnership, limited liability company, trust or other affiliate as defined in Rule 405 promulgated under the Securities Act of 1933, as amended, of the undersigned (including, for the avoidance of doubt, a fund managed by will the same manager or intestacymanaging member or general partner or management company or by an entity controlling, controlled by, or under common control with such manager or managing member or general partner or management company as the undersigned or who shares a common investment advisor with the undersigned) or (y) as part of a distribution without consideration by the undersigned to its stockholders, partners, members or other equity holders, provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding the Undersigned’s Shares subject to the provisions of this Lock-Up Agreement and there shall be no further transfer of such Undersigned’s Shares except in accordance with this Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value, (iiiD) sales or other transfers of the Undersigned’s Shares acquired in the Public Offering, or transactions relating the Undersigned’s Shares acquired in open market transactions after the date of the Underwriting Agreement for the Public Offering, (E) transfers of the Undersigned’s Shares to any member of the immediate family of the undersigned or any trust or other legal entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or any beneficiary (including such beneficiary’s estate) of the trust or undersigned, provided that the transferee agrees to be bound in writing by the estate of restrictions set forth in this Lock-Up Agreement, and provided further that any such transfer shall not involve a beneficiary of such trust disposition for value (for purposes of this Letter Agreement, hereof “immediate family” shall mean any relationship by blood, current or former marriagedomestic partnership, domestic partnership marriage or adoption, not nor more remote removed than first cousin), (ivF) to a partnership, limited liability company or other entity of which the undersigned and the immediate family transfers of the undersigned are Undersigned’s Shares by will or intestate succession upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders death of the undersigned, (viiG) transfers of the Undersigned’s Shares by operation of law, such as law or by order of a court of competent jurisdiction pursuant to a qualified domestic order, order or in connection with a divorce settlement, divorce decree or separation agreement, (viiiH) the surrender or forfeiture of the Undersigned’s Shares to the Company from an employee of to satisfy (x) tax withholding obligations upon exercise or vesting or (y) the Company exercise price upon death, disability or termination of employmenta cashless net exercise, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vestingshare options, settlement, or exercise of restricted stock units, optionsequity awards, warrants or other rights right to purchase shares of acquire Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject pursuant to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or Company’s equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is plans as described in the Registration Statement, (I) the exercise of any option, warrant or other rights to acquire shares of Common Stock or other securities, the Pricing Disclosure Package and settlement of any share-settled share appreciation rights, restricted shares or restricted share units or the Prospectusconversion of any convertible security into Common Stock, orprovided that the underlying Common Stock or other securities continue(s) to be subject to the restrictions of this Lock-Up Agreement, (xiJ) transfers pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is in each case made to all holders of the Company’s capital stock Common Stock, involving a Change of Control (as defined below), provided that (x) of in the Company (for purposes hereof, “Change of Control” shall mean event that the transfer (whether by tender offer, merger, consolidation or other similar transaction)such transaction is not completed, in one transaction the Undersigned’s Shares shall remain subject to the terms of this Lock-Up Agreement and (y) no such transfer of Common Stock or a series of related transactions, other Undersigned’s Shares shall be permitted pursuant to a person or group of affiliated persons, of shares of capital stock if, after this clause (J) if such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such bona fide third-party tender offer, merger, consolidation or other similar transaction is not completedapproved by the board of directors of the Company, unless either (i) such transfer is required pursuant to mandatory take-over or squeeze-out provisions under applicable law or (ii) the failure to so transfer such Undersigned’s Shares would result in such Undersigned’s Shares being extinguished without value being received by the undersigned, (K) any transfers of the Undersigned’s Lock-Up Securities shall remain subject Shares to the provisions Company arising as a result of this Letter Agreement; the termination of employment of the undersigned and pursuant to employment agreements under which the Company has the option to repurchase the Undersigned’s Shares or a right of first refusal with respect to transfers of the Undersigned’s Shares, (L) transfers of the Undersigned’s Shares made pursuant to a contract, instruction or plan adopted pursuant to Rule 10b5-1 of the Exchange Act (a “Plan”) prior to the date hereof, provided that (A1) no amendment shall be made to any such existing Plan during the Restricted Period, and (2) any filing under Section 16(a) of the Exchange Act that is made in connection with any such sales during the case of any transfer or distribution Restricted Period shall state that such sales have been executed under a trading plan pursuant to clause Rule 10b5-1 under the Exchange Act, or (a)(i)M) transfers of the Undersigned’s Shares with the prior written consent of X.X. Xxxxxx Securities LLC, (ii)Xxxxx Xxxxxxx & Co. and Xxxxxxxxx LLC on behalf of the Underwriters. In addition, (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver with respect to the Representatives a lock-up letter in the form of this Letter Agreement, clauses (B) in the case of any through (I) above, it shall be a condition to such transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), that no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or ) nor any other public announcement filing or disclosure of such transfer by or on behalf of the undersigned shall be required or shall be voluntarily made voluntarily in connection with such transfer or distribution during the Restricted Period (other than a filing on a Form 5 made after the expiration of the Restricted Period referred and any required Schedule 13G (or 13G/A) or 13F (or 13F/A) filing, provided that such filing clearly indicates in the footnotes thereto an explanation of the type of transaction giving rise to abovethe change in ownership and, with respect to clauses (B), (C), (E) and (C) in the case of any transfer or distribution pursuant to clause (a)(viiI), (viiithat the footnotes thereto also indicate the securities so transferred or distributed are subject to this Lock-Up Agreement). Furthermore, (ix) and nothing in this Lock-Up Agreement shall be deemed to prevent the undersigned from establishing a Plan, provided that (x) it shall be a condition to such Plan does not provide for the transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with during the Restricted Period and (y) to the extent a public announcement or filing under the Exchange Act regarding the establishment of such Plan is required of or is voluntarily made by or on behalf of the undersigned or the Company, such announcement or filing shall include a statement to the effect that no transfer or distribution shall of Common Stock may be legally required made under such Plan during the Restricted Period. The undersigned now has, such filingand, report or announcement shall clearly indicate in except as contemplated by the footnotes thereto above, for the nature duration of this Lock-Up Agreement will have, good and conditions marketable title to the Undersigned’s Shares, free and clear of such transfer;all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Undersigned’s

Appears in 1 contract

Samples: Underwriting Agreement (Deciphera Pharmaceuticals, Inc.)

Pricing Information Provided Orally by Underwriters. Public Offering Price Per Share: Variable Price Reoffering Issuer: IMS Health Holdings, Inc. Symbol: IMS Total Firm Shares Offered by Issuer: 0 common shares Total Shares Offered by Selling Shareholders: 20,000,000 common shares Greenshoe Shares Offered by Selling Shareholders: 0 common shares Price to Public: Variable Trade Date: August 6, 2015 Closing Date: August 11, 2015 CUSIP No: 00000X000 Underwriters: X.X. Xxxxxx Securities LLC, Xxxxxx Xxxxxxx & Co. LLC The issuer has filed a registration statement (and a preliminary prospectus supplement) with the Securities and Exchange Commission (the “SEC”) for the offering price per shareto which this communication relates, which has become effective by rule of the SEC. Before you invest, you should read the preliminary prospectus supplement for more complete information about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC web site at xxx.xxx.xxx. Alternatively, you may request a copy of the preliminary prospectus from: $2.10 Number X.X. Xxxxxx Securities LLC, c/o Broadridge Financial Solutions, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, or by telephone at (000) 000-0000; or Xxxxxx Xxxxxxx & Co. LLC, Attention: Prospectus Department, 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, by email at xxxxxxxxxx@xxxxxxxxxxxxx.xxx or by toll-free call to (000) 000-0000. This communication shall not constitute an offer to sell or the solicitation of Underwritten Shares: 43,500,000 Number any offer to buy, nor shall there be any sale of Option Shares: 6,525,000 [·]the securities in any jurisdiction in which such offer, 2020 J.X. solicitation or sale would be unlawful prior to the registration or qualification under the securities law of any such jurisdiction. X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxx Xxxxxxx Xxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Re: FuelCell EnergyIMS Health Holdings, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, X.X. Xxxxxx Securities LLC and Xxxxxx Xxxxxxx & Co. LLC, acting as Representatives of the several Underwriters (the “Underwriters”), propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyIMS Health Holdings, Inc., a Delaware corporation (the “Company”)) and the Selling Stockholders listed on Schedule 2 to the Underwriting Agreement, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC on behalf of the Underwritersand Xxxxxx Xxxxxxx & Co. LLC, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 60 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stockCommon Stock, $0.0001 0.01 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (4except for purposes of clause (3) publicly disclose for such demands or exercises as will not require any public filing or other public disclosure to be made in connection therewith or will permit any required public filing or other public disclosure to be made after the intention to do any expiration of the foregoing. The undersigned acknowledges and agrees that 60-day period referred to above), in each case other than with respect to: (A) the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably Securities to be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned pursuant to the Underwriting Agreement; (B) transfers of shares of Common Stock or any other person) of any economic consequences of ownership, in whole security convertible into or in part, directly exercisable or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided exchangeable for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes,; (iiC) by will if the undersigned is a corporation, partnership or intestacy,other business entity, transfers or distributions of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to limited or general partners, members, stockholders or direct or indirect affiliates of the undersigned, including investment funds or other entities under common control or management with the undersigned; (iiiD) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a result of the operation of law through estate, other testamentary document or intestate succession; (E) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to any immediate family member of the undersigned or any trust for the direct or indirect benefit of the undersigned or the any immediate family member of the undersigned, 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 (for purposes of this Letter Agreementhereof, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership marriage or adoption, not more remote than first cousin),; (ivF) to a partnership, limited liability company or other entity transfers of which the undersigned and the immediate family shares of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, Common Stock or any other funds managed by such partnership), security convertible into or (B) as part of a distribution to members exercisable or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities exchangeable for Common Stock acquired in open market transactions after the closing date for completion of the Public Offering,; (xG) the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock and any related transfer to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way i) deemed to occur upon the cashless exercise of “net” such securities or “cashless” exercise), including (ii) for the payment purpose of paying the exercise price and tax and remittance payments of such securities or for paying taxes (including estimated taxes) due as a result of the vesting, settlement, or exercise of such restricted securities; (H) the settlement with the Company of stock units, options, warrants or rights, provided that any such appreciation rights disclosed in the Prospectus; or (I) transfers to the Company of shares of Common Stock received upon such exercise, vesting or settlement shall be subject to any security convertible into or exercisable or exchangeable for Common Stock in connection with the terms termination of this Letter Agreement, and provided further that any such restricted stock units, options, warrants service of an employee or rights are held by the undersigned other service provider pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of agreements that provide the Company that is made with an option to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after repurchase such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreementshares; provided that in the case of any gift, transfer or distribution pursuant to clause (AB), (C), (D) or (E), each donee, transferee or distributee shall execute and deliver to the Underwriters a lock-up letter in the form of this paragraph; and provided, further, that in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, clauses (B) in the case of any transfer or distribution pursuant to clause through (a)(i), (ii), (iii), (iv), (v), and (viI), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)amended, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution other than: (other than i) a filing made on Form 4 solely in connection with transfers described in clause (G) above, which shall specify in such Form 4 that (a) the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock or (b) the related transfer to the Company of shares of Common stock, in each case as applicable, that required such filing of a Form 4, was (x) deemed to occur upon the cashless exercise of such securities or (y) for the purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such exercises, as applicable, and in the case of clause (b) above, was a transfer to the Company; (ii) a filing made on Form 4 solely in connection with transfers described in clause (H) above, which shall specify in such Form 4 that the settlement of stock appreciation rights disclosed in the Prospectus that required such filing of a Form 4 was settlement with the Company; or (iii) a filing on a Form 5 made after the expiration of the Restricted Period 60-day period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (IMS Health Holdings, Inc.)

Pricing Information Provided Orally by Underwriters. Underwritten shares: 8,700,000 Option shares: 1,305,000 Public offering price per share: $2.10 5.00 Number of Underwritten Sharesshares purchased by THP: 43,500,000 2,000,000 Number of Option Sharesshares purchased by PSC: 6,525,000 [·]800,000 Number of shares purchased by the Insiders: 709,718 , 2020 J.X. Xxxxxx Securities 2023 MXXXXX SXXXXXX & CO. LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below PXXXX XXXXXXX & CO. c/o J.X. Xxxxxx Securities Morgan Sxxxxxx & Co. LLC 300 Xxxxxxx Xxxxxx Xxx Xxxx1000 Xxxxxxxx New York, Xxx Xxxx 00000 New York 10036 c/o Barclays Capital Inc. 700 Pxxxx Xxxxxxx Xxxxxx Xxx Xxxx& Co. U.S. Bancorp Center, Xxx 800 Xxxxxxxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx XxxxxxMinneapolis, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 Minnesota 55402 Re: FuelCell EnergyAkoya Biosciences, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyAkoya Biosciences, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.00001 per share, of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby hxxxxx agrees that, without the prior written consent of J.X. Xxxxxx Securities Mxxxxx Sxxxxxx & Co. LLC and Pxxxx Xxxxxxx & Co., on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, par value $0.0001 0.00001 per share par valueshare, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging during the Restricted Period in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer or dispose of the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will will, other testamentary document or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a corporation, partnership, limited liability company company, trust or other entity of which the undersigned and one or more members of the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution or other transfer or distribution to general or limited partners, members or shareholders of, or other holders of equity interests, in the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree decree, separation agreement or separation agreementcourt order, (viii) to the Company from an employee or other service provider of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants employee 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;service provider,

Appears in 1 contract

Samples: Underwriting Agreement (Akoya Biosciences, Inc.)

Pricing Information Provided Orally by Underwriters. Underwritten Shares: [•] Option Shares: [•] Public offering price per share: $2.10 Number of Underwritten Shares[•] Trade Date: 43,500,000 Number of Option Shares[•] Settlement Date: 6,525,000 [·], 2020 J.X. Xxxxxx Securities •] Written Testing-the-Waters Communications [None.] [FORM OF LOCK-UP AGREEMENT] X.X. XXXXXX SECURITIES LLC Barclays Capital Inc. Canaccord Genuity CREDIT SUISSE SECURITIES (USA) LLC XXXXXXX SACHS & CO. LLC XXXXXXXXX LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Credit Suisse Securities (USA) LLC 00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity Goldman Xxxxx & Co. LLC 90 000 Xxxx XxxxxxXxxxxx Xxx Xxxx, Xxxxx 0000 XxxxxxXxx Xxxx 00000 c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000 Re: FuelCell Energy, Inc. --- XXXXXX HEALTH COMPANY — Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several underwriters named in Schedule I to the Underwriting Agreement (as defined below) (the “Underwriters”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc., a Delaware corporation Xxxxxx Health Company (the “Company”)) and the Selling Stockholders listed on Schedule 2 to the Underwriting Agreement, providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to Underwriters, of shares of the Underwriting Agreement Common Stock, par value $0.01 per share (the UnderwritersCommon Stock”), of common stock of the Company (such shares to be sold in the Public Offering, the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. X.X. Xxxxxx Securities LLC LLC, on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate (provided, that any “portfolio company” (as such term is customarily used among institutional investors) of the undersigned, or any entity controlled by any such portfolio company, shall not be considered an affiliate of the undersigned) to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business on the date that is 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, except as those demands or exercises that do not involve any public disclosure or filing during the Restricted Period (provided that the Company shall provide written notice to the Representatives at least two business days prior to any confidential or non-public submission of a registration statement made during the Restricted Period) or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would could reasonably be expected to lead to or result in, a sale sale, loan, pledge or other disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise, or to publicly disclose the intention to undertake any of the foregoing. The undersigned represents and warrants that the undersigned is not, has not caused or directed any of its affiliates to be or become, and is not aware of any of its affiliates (provided, that any “portfolio company” (as such term is customarily used among institutional investors) of the undersigned, or any entity controlled by any such portfolio company, shall not be considered an affiliate of the undersigned) being, currently a party to any agreement or arrangement that is designed to or which reasonably could be expected to lead to or result in any activity prohibited by this Letter Agreement during the Restricted Period. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) upon death or by will will, testamentary document or intestacy, (iii) to any member of the undersigned’s immediate family (as defined below), any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members members, partners, shareholders or shareholders other equity holders of the undersigned, (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) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, shares of 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 (including estimated taxes) and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, shares of restricted stock, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, shares of restricted stock, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in or filed as an exhibit to the Registration Statement, the Pricing Disclosure Package and or the Prospectus, oras applicable, (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company that is and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;

Appears in 1 contract

Samples: Underwriting Agreement (Sotera Health Co)

Pricing Information Provided Orally by Underwriters. Public 1. The Company is selling 7,142,858 shares of Class A Common Stock. 2. The Company has granted an option to the Underwriters to purchase up to an additional 1,071,428 shares of Class A Common Stock. 3. The public offering price per share: share of Class A Common Stock shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 [·], 2020 J.X. 42.00. Written Testing-the-Waters Communications TTW Presentation dated October 2024. Testing-the-Waters Authorization X.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity Xxxxxxx Xxxxx & Co. LLC Evercore Group L.L.C. Cantor Xxxxxxxxxx & Co. As Representatives of the several Underwriters listed in Schedule 1 to (the Underwriting Agreement referred to below “Representatives”) c/o J.X. X.X. Xxxxxx Securities LLC 300 000 Xxxxxxx Xxxxxx Xxx XxxxNew York, Xxx New York 10179 c/x Xxxxxxx Xxxxx & Co. LLC 000 Xxxx 00000 Xxxxxx New York, New York 10282 c/o Barclays Capital Inc. 700 Xxxxxxx Evercore Group L.L.C. 00 Xxxx 00xx Xxxxxx Xxx XxxxNew York, Xxx Xxxx 00000 New York 10055 and c/o Canaccord Genuity LLC 90 Cantor Xxxxxxxxxx & Co. 000 Xxxx Xxxxxx00xx Xxxxxx New York, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 ReNew York 10022 RE: FuelCell Energy, Inc. --- Public Offering “Testing the Waters” Authorization Ladies and Gentlemen: The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell Energy, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur reliance on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, “Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other personSection 5(d) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes, (ii) by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) 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 and/or Rule 405 promulgated 163B under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (B) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution Xxxx Therapeutics, Inc. (other than a filing the “Issuer”) hereby authorizes X.X. Xxxxxx Securities LLC, Xxxxxxx Xxxxx & Co. LLC, Evercore Group L.L.C. and Cantor Xxxxxxxxxx & Co. and their respective affiliates and employees (together, the “Underwriters”) to engage on a Form 5 made after the expiration behalf of the Restricted Period referred Issuer in oral and written communications with potential investors that are or are reasonably believed to above) and (C) be “qualified institutional buyers,” as defined in Rule 144A under the case Act, or institutions that are “accredited investors,” within the meaning of any transfer or distribution pursuant to clause (a)(viiRule 501(a)(1), (viiia)(2), (ixa)(3), (a)(7), (a)(8), (a)(9), (a)(12) and or (xa)(13) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with to determine whether such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate investors might have an interest in the footnotes thereto the nature and conditions of such transfer;Issuer’s contemplated public offering (“Testing-the-Waters Communications”).

Appears in 1 contract

Samples: Underwriting Agreement (Vera Therapeutics, Inc.)

Pricing Information Provided Orally by Underwriters. Public offering price per share: $2.10 Number of Underwritten Shares: 43,500,000 Number of 5,000,000 Option Shares: 6,525,000 [·]750,000 Public Offering Price per Share: $20.00 None. In the form agreed upon by the Underwriters and the Company. In the form agreed upon by the Underwriters and the Company. Avalon Ventures VIII, 2020 J.X. L.P. Xxxx XxXxx Avalon Ventures X, L.P. Xxxx Xxxxx OrbiMed Private Investments IV, LP Xxxxx Xxxxx TPG Biotechnology Partners III, L.P. Xxxxxx Securities Xxxxx Xxx Xxxxxxx Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx X. Xxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxx Xxxxxxxxx Xxxxxx Xxxxxx December , 2015 XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED XXXXX AND COMPANY, LLC Barclays Capital Inc. Canaccord Genuity LLC XXXXX XXXXXXX & CO. As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Merrill Lynch, Pierce, Xxxxxx Securities LLC 300 Xxxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Cowen and Company, LLC 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxxx Xxxxxxx & Co. 000 Xxxxxxxx Xxxx XxxxxxXxxxxxxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx Xxxxxxxxx 00000 Re: FuelCell Energy, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives representatives (the “Representatives”) of the several Underwriters, propose to enter into an underwriting agreement Underwriting Agreement (the “Underwriting Agreement”) with FuelCell EnergyOtonomy, Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of common stock stock, par value $0.001 per share (“Common Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxxx Lynch, Pierce, Xxxxxx Securities LLC & Xxxxx Incorporated (“BAML”), on behalf of the Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning commencing on the date of this letter agreement hereof and ending 90 days (this the Letter AgreementLock-up Period”) and ending at the close of business 90 days after the date of the final prospectus supplement (the “Prospectus”) relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Public Offering Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with collectively, the Common Stock, Lock-Up Equity Securities”), or publicly disclose the intention to make any offer, sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Equity Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Equity Securities, or in each case other than (4A) publicly disclose the intention Securities to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether sold by the undersigned pursuant to the Underwriting Agreement; (B) Common Stock acquired in open market transactions on or any other personafter the Public Offering Date; (C) transfers of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) Common Stock as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiD) by will or intestacy, (iii) transfers of Common Stock to any trust for the direct or indirect benefit of the undersigned or the immediate family member of the undersigned, or if the undersigned is a trust, to a trustor or any beneficiary (including such beneficiary’s estate) of the trust undersigned; (E) transfers of Common Stock by will or to intestate succession upon the estate of a beneficiary of such trust (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family death of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, undersigned; (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (viF) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, transfers of Common Stock (Ai) to another corporation, partnership, limited liability company, trust or other business entity that is an a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (Bii) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, (ix) as part of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, 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 and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held without consideration by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan stockholders, beneficiaries, partners, members or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreementholders; provided that (A) in the case of any transfer or distribution pursuant to clause contemplated in clauses (a)(iC), (iiD), (iii)E) or (F) above, (iv), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, deviseeheir, distributee or other transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreementparagraph, (B) and provided, further, that in the case of any transfer or distribution pursuant to clause contemplated in clauses (a)(iB) (C), (iiD), (iii), E) or (iv), (v), and (vi)F) above, no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred Lock-up Period); (G) the “net” or “cashless” exercise of options to above) purchase Common Stock or settlement of restricted stock units pursuant to the Company’s equity incentive plans or of warrants to purchase Equity Securities, or the exchange or conversion of any Equity Securities convertible or exchangeable for Common Stock granted pursuant to the Company’s equity incentive plans, in each case which equity incentive plans and (C) warrants are described in the case Prospectus, provided that any exercise or settlement does not involve a sale of Equity Securities to any transfer person or distribution pursuant entity other than the Company, whether to clause (a)(vii)cover the applicable exercise price, (viii)withholding tax obligation or otherwise, (ix) and (x) it shall be a condition to provided, further, that the Equity Securities received upon such transfer that no public filingexercise, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Actsettlement, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;ex-

Appears in 1 contract

Samples: Underwriting Agreement (Otonomy, Inc.)

Pricing Information Provided Orally by Underwriters. Public 1. The Company is selling 10,000,000 Underwritten Shares and the Selling Stockholder is selling 8,000,000 Underwritten Shares. 2. The Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 2,700,000 Option Shares. 3. The public offering price per share: share for the Securities shall be $2.10 Number of Underwritten Shares: 43,500,000 Number of Option Shares: 6,525,000 12.50. 4. The lock up period for the Company, directors, executive officers and the Selling Stockholder is 45 days. None 1. HC Group Holdings I, LLC 2. Hxxxx X. Xxxxxx Kxxxxxx, Jr. 3. Jxxx X. Xxxxxxx 4. Exxxxxxxx X. Xxxxxx 5. Dxxxx X. Xxxxxxx 6. Axxx Xxxxxxx 7. R. Xxxxxx Pxxx 8. Nxxxx Xxxxxx 9. Txxxxxx X. Xxxxxxxx 10. Mxxx Xxxxxxx 11. Jxxx X. Xxxxxxxxxx 12. Cxxxxxxx X. Xxxxxx 13. Hxxxxxx Xxxxxx 14. Rxxxxxx Xxxxxxx 15. Rxxxxx X. Xxxxxxxx 00. Mxxxxxx Xxxxxxx [·], 2020 J.X. Xxxxxx Securities LLC Barclays Capital Inc. Canaccord Genuity LLC As Representatives of the several Underwriters listed in Schedule 1 to the Underwriting Agreement referred to below c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 700 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Canaccord Genuity LLC 90 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxxxxxxx 00000 UNDERWRITER[S] NAME] [UNDERWRITER ADDRESS] [UNDERWRITER ADDRESS] Re: FuelCell EnergyOption Care Health, Inc. --- Public Offering Ladies and Gentlemen: The undersigned understands that you, as Representatives of Underwriter[s] for whom BofA Securities, Inc. has agreed to act as representative (the several Underwriters“Representative”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) with FuelCell EnergyOption Care Health, Inc., a Delaware corporation (the “Company”), and the Selling Stockholder[s], providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement [●] (the “UnderwritersUnderwriter[s]), ) of common stock of the Company (the “SecuritiesCommon Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of order to induce you to enter into the Underwriters’ agreement to purchase and make the Public Offering of the Securities, Underwriting Agreement and for other good and valuable consideration receipt of which is hereby acknowledged, so long as the Prospectus Date (as defined below) shall occur on or prior to October 14, 2020, the undersigned hereby agrees that, without the prior written consent of J.X. Xxxxxx Securities LLC on behalf of the UnderwritersRepresentative, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 90 45 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”; and the date of such final prospectus supplement is herein referred to as the “Prospectus Date”) (such period, the “Restricted Period”), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock, $0.0001 per share par value, of the Company (the “Common Stock”) Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with ), or publicly disclose the Common Stockintention to make any offer, “Lock-Up Securities”)sale, pledge or disposition, (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up SecuritiesCommon Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up SecuritiesCommon Stock or such other securities, in cash or otherwise, otherwise or (3) make cause to be filed or confidentially submitted any demand registration statement for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any shares of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in each case other derivative transaction than (A) the shares of Common Stock to be sold or instrument, however described or defined) designed or intended, or which would reasonably be expected to lead to or result in, a sale or disposition or transfer (whether transferred by the undersigned or any other personto the Underwriter[s] pursuant to the Underwriting Agreement; (B) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, the undersigned may: (a) transfer the undersigned’s Lock-Up Securities: (i) transfers as a bona fide gift or gifts, or for bona fide estate planning purposes, ; (iiC) by will distributions, transfers or intestacy, exchanges of shares of Common Stock or any security, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock to or with limited or general partners, members, stockholders or affiliates (iiias defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the undersigned; (D) transfers to any trust immediate family members of the undersigned, trusts for the direct or indirect benefit of the undersigned or the immediate family members of the undersigned, 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 (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to a partnershippartnerships, limited liability company companies or other entity entities the only partners, members or equity holders of which are the undersigned and the and/or immediate family members of the undersigned are undersigned; (E) transfers by will or intestacy upon the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) death of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or shareholders of the undersigned, (vii) by operation of lawlaw or pursuant to an order of a court or regulatory authority, such as pursuant to a qualified domestic order, divorce settlement, divorce settlement or decree or separation agreement, ; (viiiF) transfers to, or exchanges with, any investment fund controlled or managed by the undersigned; (G) transfers of shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering; (H) transfers to conduct a “net” or “cashless” settlement, via a disposition to the Company, of any equity awards issued pursuant to an employee benefit plan maintained by the Company or any of its subsidiaries, including for the payment of exercise price and tax and remittance payments due, provided that (i) any Common Stock received upon such exercise shall be subject to the restrictions contained herein and (ii) if the undersigned is required to file a report under the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period related to such an exercise by the undersigned, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of net share settlement or tax withholding obligations of the undersigned in connection with such settlement; (I) to the Company from an employee of or service provider of the Company upon death, disability or termination of employment, in each case, of such employee, employee or service provider and (ixJ) as part transfers of a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date for the Public Offering, (x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any security convertible into or exercisable or exchangeable for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction of the Company that is made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes hereofapproved by the Company’s board of directors, “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 if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that, that in the event that such tender offer, merger, consolidation or other similar transaction the Change of Control is not completed, the undersigned’s Lock-Up Securities Common Stock owned by the undersigned shall remain subject to the provisions of this Letter Agreementrestrictions contained herein; provided that (A) in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE) or (F), (v), (vi) and (vii), such transfer shall not involve a disposition for value and each donee, devisee, distributee or transferee or distributee shall execute and deliver to the Representatives Underwriter[s] a lock-up letter in the form of this Letter Agreementparagraph; and provided, (B) further, that in the case of any transfer or distribution pursuant to clause (a)(iB), (iiC), (iiiD), (ivE), (v), and F) or (viG), no filing by any party (donor, donee, devisee, transferor, transferor or transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above) and (C) in the case of any transfer or distribution pursuant to clause (a)(vii), (viii), (ix) and (x) it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;.

Appears in 1 contract

Samples: Underwriting Agreement (Option Care Health, Inc.)

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