Exhibit 1.1
8,461,542 Shares
769,230 Pre-funded Warrants
Xenon Pharmaceuticals Inc.
UNDERWRITING AGREEMENT
November 29, 2023
J.P. MORGAN SECURITIES LLC
JEFFERIES LLC
BOFA SECURITIES, INC.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
RBC CAPITAL MARKETS, LLC
As Representatives of the several Underwriters
c/o | J.P. MORGAN SECURITIES LLC |
| 383 Madison Avenue |
| New York, New York 10179 |
c/o | JEFFERIES LLC |
| 520 Madison Avenue |
| New York, New York 10022 |
c/o | BOFA SECURITIES, INC. |
| One Bryant Park |
| New York, New York 10036 |
c/o | STIFEL, NICOLAUS & COMPANY, INCORPORATED |
| 787 Seventh Avenue, 11th Floor |
| New York, New York 10019 |
c/o | RBC CAPITAL MARKETS, LLC |
| 200 Vesey Street, 8th Floor |
| New York, New York 10019 |
Ladies and Gentlemen:
Introductory. Xenon Pharmaceuticals Inc., a corporation continued under the federal laws of Canada (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A (the “Underwriters”) (i) an aggregate of 8,461,542 common shares in the capital of the Company (the “Shares”) and (ii) pre-funded warrants of the Company to purchase an aggregate of 769,230 Shares (the “Pre-Funded Warrants”). The 8,461,542 Shares to be sold by the Company are called the “Firm Shares” and together with the Pre-Funded Warrants are referred to herein as the “Firm Securities.” In addition, the Company has granted to the Underwriters an option to purchase up to an additional 1,384,615 Shares as provided in Section 2. The additional 1,384,615 Shares to be sold by the Company pursuant to such option are collectively called the “Optional Shares.” The Firm Shares and, if and to the extent such option is exercised, the Optional Shares are collectively called the “Offered Shares” and together with the Pre-Funded Warrants are referred to herein as the “Offered Securities.” J.P. Morgan Securities LLC (“J.P. Morgan”), Jefferies LLC (“Jefferies”), BofA Securities, Inc. (“BofA Securities”), Stifel, Nicolaus & Company, Incorporated (“Stifel”) and RBC Capital Markets, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection with the offering and sale of the Offered Securities. To the extent there are no additional underwriters listed on Schedule A, the term “Representatives” as used herein shall mean you, as Underwriter, and the term “Underwriters” shall mean either the singular or the plural, as the context requires. As used herein, “Warrant Shares” means the Shares issuable upon exercise of the Pre-Funded Warrants.
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The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S‑3, File No. 333‑260010, including a base prospectus (the “Base Prospectus”) to be used in connection with the public offering and sale of the Offered Securities. Such automatic registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A or 430B under the Securities Act, is called the “Registration Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the Offered Securities is called the “Rule 462(b) Registration Statement,” and from and after the date and time of filing of any such Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The preliminary prospectus supplement dated November 29, 2023 describing the Offered Securities and the offering thereof (the “Preliminary Prospectus Supplement”), together with the Base Prospectus, is called the “Preliminary Prospectus,” and the Preliminary Prospectus and any other prospectus supplement to the Base Prospectus in preliminary form that describes the Offered Securities and the offering thereof and is used prior to the filing of the Prospectus (as defined below), together with the Base Prospectus, is called a “preliminary prospectus.” As used herein, the term “Prospectus” shall mean the final prospectus supplement to the Base Prospectus that describes the Offered Securities and the offering thereof (the “Final Prospectus Supplement”), together with the Base Prospectus, in the form first used by the Underwriters to confirm sales of the Offered Securities or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act. References herein to the Preliminary Prospectus, any preliminary prospectus and the Prospectus shall refer to both the prospectus supplement and the Base Prospectus components of such prospectus. As used herein, “Applicable Time” is 7:00 p.m. (New York City time) on November 29, 2023. As used herein, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus” means the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable Time, together with the free writing prospectuses, if any, identified in Schedule B hereto and the pricing information set forth on Schedule B hereto. As used herein, “Road Show” means a “road show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Offered Securities contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act). “Marketing Materials” means any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Offered Securities, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically).
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All references in this Agreement to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include the documents incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial statements and schedules and other information which are “contained,” “included” or “stated” in, or “part of” the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus and all other references of like import, shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be. All references in this Agreement to amendments or supplements to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”) that is or is deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus or the Prospectus, as the case may be. All references in this Agreement to (i) the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus or the Prospectus, any amendments or supplements to any of the foregoing, or any free writing prospectus, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), and (ii) the Prospectus shall be deemed to include any “electronic Prospectus” provided for use in connection with the offering of the Offered Securities as contemplated by Section 3(o) of this Agreement.
In the event that the Company has only one subsidiary, then all references herein to “subsidiaries” of the Company shall be deemed to refer to such single subsidiary, mutatis mutandis.
The Company hereby confirms its agreement with the Underwriters as follows:
The Company hereby represents, warrants and covenants to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
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The Company has a reasonable basis for making each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsels to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
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The Company further covenants and agrees with each Underwriter as follows:
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If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any time on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all times be effective and shall survive such termination.
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The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 9(c) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 10; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 9(c) for purposes of indemnification.
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The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 10.
Notwithstanding the provisions of this Section 10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions received by such Underwriter in connection with the Offered Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 10 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their respective names on Schedule A. For purposes of this Section 10, each affiliate, director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 11. Any action taken under this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
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If to the Representatives: |
| J.P. Morgan Securities LLC |
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| 383 Madison Avenue |
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| New York, New York 10179 |
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| Attention: Equity Syndicate Desk |
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| Facsimile: (212) 622-8358 |
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| Jefferies LLC |
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| 520 Madison Avenue |
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| New York, New York 10022 |
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| Attention: General Counse1 |
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| Facsimile: (646) 619-4437 |
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| BofA Securities, Inc. |
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| One Bryant Park |
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| New York, New York 10036 |
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| Email: dg.ecm_execution_services@bofa.com |
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| Attention: Syndicate Department |
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| with a copy to: |
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| Email: dg.ecm_legal@bofa.com |
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| Attention: ECM Legal |
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| Stifel, Nicolaus & Company, Incorporated |
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| 1 South Street, 15th Floor |
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| Baltimore, Maryland 21202 |
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| Attention: Syndicate |
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| Facsimile: (443) 224-1273 |
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| RBC Capital Markets, LLC |
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| 200 Vesey Street, 8th Floor |
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| New York, New York 10281 |
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| Attention: Equity Capital Markets |
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with a copy to: |
| Cooley LLP |
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| 3 Embarcadero Center, 20th Floor |
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| San Francisco, CA 94111 |
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| Facsimile: (415) 693-2222 |
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| Attention: Jonie Kondracki |
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If to the Company: |
| Xenon Pharmaceuticals Inc. |
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| 200-3650 Gilmore Way |
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| Burnaby, British Columbia V5G 4W8 |
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| Facsimile: (604) 484-3450 |
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| Attention: Chief Financial Officer |
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with a copy to: |
| Wilson Sonsini Goodrich & Rosati, Professional Corporation |
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| 701 Fifth Avenue, Suite 5100 |
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| Seattle, Washington 98104 |
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| Facsimile: (206) 883-2699 |
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| Attention: Jeffrey D. Saper, Steven V. Bernard and Bryan D. King |
Any party hereto may change the address for receipt of communications by giving written notice to the others.
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For purposes of this Agreement, (A) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the New York Courts, and with respect to any Related Judgment, each party waives any such immunity in the New York Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
All references to “$” in this Agreement refer to United States dollars. The obligations of the Company pursuant to this Agreement in respect of any sum due to any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by any Underwriter of any sum adjudged to be so due in such other currency, on which such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter in United States dollars hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter hereunder.
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All payments made by the Company under this Agreement, if any, will be made without withholding or deduction for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature (other than taxes on net income) imposed or levied by or on behalf of Canada or any political subdivision or any taxing authority thereof or therein unless the Company is or becomes required by law to withhold or deduct such taxes, duties, assessments or other governmental charges. In such event, the Company will pay such additional amounts as will result, after such withholding or deduction, in the receipt by each Underwriter and each person controlling any Underwriter, as the case may be, of the amounts that would otherwise have been receivable in respect thereof.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 9 and the contribution provisions of Section 10, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 9 and Section 10 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as contemplated by the Securities Act and the Exchange Act.
[signature page follows]
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
XENON PHARMACEUTICALS INC.
By: | /s/ Sherry Aulin |
Name: | Sherry Aulin |
Title: | Chief Financial Officer |
[Signature Page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives in New York, New York as of the date first above written.
J.P. MORGAN SECURITIES LLC
JEFFERIES LLC
BOFA SECURITIES, INC.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
RBC CAPITAL MARKETS, LLC
Acting individually and as Representatives
of the several Underwriters named in
the attached Schedule A.
J.P. MORGAN SECURITIES LLC
By: | /s/ Benjamin Burdett |
Name: | Benjamin Burdett |
Title: | Managing Director |
JEFFERIES LLC
By: | /s/ Michael Brinkman |
Name: | Michael Brinkman |
Title: | Managing Director |
BOFA SECURITIES, INC.
By: | /s/ Greg Butz |
Name: | Greg Butz |
Title: | Managing Director |
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By: | /s/ Seth Rubin |
Name: | Seth Rubin |
Title: | Senior Managing Director |
RBC CAPITAL MARKETS, LLC
By: | /s/ Noël K. Brown |
Name: | Noël K. Brown |
Title: | Managing Director |
[Signature Page to Underwriting Agreement]
Schedule A
Underwriters | Number of Firm Shares to be Purchased | Number of Pre-Funded Warrants to be Purchased |
J.P. Morgan Securities LLC | 2,623,078 | 238,462 |
Jefferies LLC | 2,200,001 | 200,000 |
BofA Securities, Inc. | 1,438,462 | 130,769 |
Stifel, Nicolaus & Company, Incorporated | 1,353,847 | 123,077 |
RBC Capital Markets, LLC | 846,154 | 76,922 |
Total | 8,461,542 | 769,230 |
Schedule B
Free Writing Prospectuses Included in the Time of Sale Prospectus
None.
Pricing Information Included in the Time of Sale Prospectus
Price per share to the public: | $32.50 |
Number of shares being sold by the Company: | 8,461,542 |
Number of shares potentially issuable pursuant to the option to purchase additional shares: | 1,384,615 |
Price per pre-funded warrant to the public: | $32.4999 |
Number of pre-funded warrants being sold by the Company: | 769,230 |
Underwriting discounts and commissions per share: | $1.95 |
Underwriting discounts and commissions per pre-funded warrant: | $1.95 |
Exhibit A-1
Form of Opinion of U.S. Company Counsel
Exhibit A-2
Form of Opinion of Canadian Company Counsel
Exhibit B
Form of Lock-up Agreement
____________, 2023
J.P. Morgan Securities LLC
Jefferies LLC
BofA Securities, Inc.
Stifel, Nicolaus & Company, Incorporated
RBC Capital Markets, LLC
As Representatives of the Several Underwriters
c/o | J.P. MORGAN SECURITIES LLC |
| 383 Madison Avenue |
| New York, New York 10179 |
c/o | JEFFERIES LLC |
| 520 Madison Avenue |
| New York, New York 10022 |
c/o | BOFA SECURITIES, INC. |
| One Bryant Park |
| New York, New York 10036 |
c/o | STIFEL, NICOLAUS & COMPANY, INCORPORATED |
| 787 Seventh Avenue, 11th Floor |
| New York, New York 10019 |
c/o | RBC CAPITAL MARKETS, LLC |
| 200 Vesey Street, 8th Floor |
| New York, New York 10019 |
RE: Xenon Pharmaceuticals Inc. (the “Company”)
Ladies & Gentlemen:
The undersigned is an owner of common shares of the Company (“Shares”) or of Related Securities of the Company. The Company proposes to conduct a public offering of equity securities (the “Offering”) for which J.P. Morgan Securities LLC (“J.P. Morgan”), Jefferies LLC (“Jefferies”), BofA Securities (“BofA Securities”), Inc., Stifel, Nicolaus & Company, Incorporated (“Stifel”) and RBC Capital Markets, LLC (the “Representatives”) will act as 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 the Company with respect to the Offering.
Annex A sets forth definitions for capitalized terms used in this letter agreement that are not defined in the body of this letter agreement. Those definitions are a part of this letter agreement.
In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period, the undersigned will not (and will use best efforts to cause any Family Member not to), without the prior written consent of the J.P. Morgan, Jefferies, BofA Securities and Stifel, which may withhold their consent in their sole discretion:
The foregoing will not apply to the registration of the offer and 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 restrictions shall not apply to (i) Shares or Related Securities acquired in open market transactions on or after the date of the final prospectus supplement relating to the Offering (the “Prospectus”), provided that prior to the expiration of the Lock-up Period, no public disclosure or filing under the Exchange Act shall be required, or made voluntarily, reporting a reduction in beneficial ownership of Shares or Related Securities in connection with any transfer of such Shares or Related Securities; (ii) the receipt of Shares or Related Securities in connection with the vesting of restricted stock or the exercise of options to purchase Shares or Related Securities, including any transfer for the payment of taxes due as a result of such vesting or exercise, whether by means of “net settlement” or otherwise (provided any such transfer shall only be permitted to the Company), insofar as such option or restricted stock is issued pursuant to an employee benefit plan disclosed in the preliminary prospectus supplement relating to the Offering and the Prospectus, provided that any such Shares or Related Securities received upon such vesting or exercise shall be subject to the terms of this letter agreement and no public disclosure or filing under the Exchange Act shall be required or shall be voluntarily made during the Lock-up Period; (iii) the transfer of Shares or Related Securities to the Company in connection with the repurchase of Shares issued pursuant to an employee benefit plan; (iv) the transfer of Shares or Related Securities pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a change of control of the Company, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the Shares and Related Securities held by the undersigned shall remain subject to the provisions of this letter agreement; (v) the transfer of Shares or Related Securities solely by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, provided that each transferee executes and delivers to the Representatives an agreement 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 Swap or engage in any other activities restricted under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory hereto); (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity the transfer of Shares or Related Securities (A) to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act) of the undersigned or (B) as part of a distribution without consideration by the undersigned to its shareholders, partners, members or other equity holders; (vii) the transfer of Shares or Related Securities by (A) gift, or (B) by will or intestate succession; (viii) the transfer of Shares or Related Securities to a Family Member or to a trust whose beneficiaries consist
exclusively of one or more of the undersigned (or, if the undersigned is a trust, to any trustee or beneficiary of the undersigned) and/or a Family Member; provided, however, that in the case of clauses (vi), (vii) and (viii), it shall be a condition to such transfer that:
The undersigned may enter into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act relating to the sale of Shares or Related Securities of the Company, provided that the Shares or Related Securities subject to such plan may not be sold and no public disclosure of any such plan shall be required or shall be voluntarily made by any person until after the expiration of the Lock-up Period.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of Shares or 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 take, and will use best efforts to 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. This letter agreement shall lapse and become null and void, and the undersigned shall be released from all obligations under this letter agreement, 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 on or before December 15, 2023 or (iii) if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for, and delivery of, the Firm Shares (as defined therein) to be sold thereunder, whichever of clauses (i), (ii) and (iii) occurs first.
This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws principles thereof.
The undersigned acknowledges and agrees that the underwriters have not provided any recommendation or investment advice nor have the underwriters solicited any action from the undersigned with respect to the Offering and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Offering, the Representatives and the other underwriters are not making a recommendation to you to enter into this letter agreement, and nothing set forth in such disclosures is intended to suggest that the Representatives or any underwriter is making such a recommendation.
This letter agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[signature page follows]
Very truly yours,
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Name of Security Holder (Print exact name) |
By: |
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| Signature |
If not signing in an individual capacity:
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Name of Authorized Signatory (Print) |
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Title of Authorized Signatory (Print) |
(indicate capacity of person signing if signing as custodian, trustee, or on behalf of an entity)
[Signature Page to Lockup Agreement]
Certain Defined Terms
Used in Lock-up Agreement
For purposes of the letter agreement to which this Annex A is attached and of which it is made a part:
in each case whether effected directly or indirectly.
Capitalized terms not defined in this Annex A shall have the meanings given to them in the body of this lock-up agreement.