As filed with the Securities and Exchange Commission
on November 7, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
Under
The
Securities Act of 1933
EDGEWISE THERAPEUTICS, INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
82-1725586 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
1715
38th Street
Boulder, CO 80301
(720) 262-7002
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal executive
offices)
Edgewise Therapeutics, Inc. 2024 Inducement
Equity Incentive Plan
Stock Option Agreement with Dr. Alan Russell
(Full title of the plan)
Kevin Koch, Ph.D.
President and Chief Executive Officer
Edgewise Therapeutics, Inc.
1715
38th Street
Boulder, CO 80301
(720) 262-7002
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Kenneth A. Clark
Tony Jeffries
Jennifer Knapp
Wilson Sonsini Goodrich & Rosati
Professional Corporation
1881 9th Street, Suite 110
Boulder, CO 80302-5148
(303) 256-5900 |
|
R. Michael Carruthers
Chief Financial Officer
Edgewise Therapeutics, Inc.
1715
38th Street
Boulder, CO 80301
(720) 262-7002 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated
filer |
|
¨ |
|
Accelerated
filer |
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¨ |
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| Non-accelerated filer |
|
x |
|
Smaller reporting company |
|
x |
| |
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| |
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|
Emerging growth company |
|
x |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item
2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (this “Registration Statement”)
in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and
the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8
will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under
the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents by Reference. |
Edgewise Therapeutics, Inc. (the “Registrant”)
hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange
Commission (the “Commission”):
| (3) | The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2024, June 30, 2024, and September 30, 2024, filed with the Commission on May 9, 2024, August 8, 2024, and November 7, 2024; |
| (4) | The
Registrant’s Current Reports on Form 8-K filed with the Commission on January 19, 2024, January 19, 2024, May 7, 2024, May 10, 2024, June 11, 2024,
and August 12, 2024; |
| (5) | All other reports filed with the Commission pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) since the end of the fiscal year covered by the Registrant’s Annual Report
referred to in (1) above; and |
All documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have
been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this
Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
| Item 4. |
Description of Securities. |
Not applicable.
| Item 5. |
Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation
Law empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that the person acted in good faith and in a manner the person reasonably
believed to be in our best interests, and, with respect to any criminal action, had no reasonable cause to believe the person’s
actions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not
be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any
agreement, a vote of stockholders or otherwise. The Amended and Restated Certificate of Incorporation of the Registrant provides for
the indemnification of the Registrant’s directors and officers to the fullest extent permitted under the Delaware General Corporation
Law. In addition, the Amended and Restated Bylaws of the Registrant require the Registrant to fully indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was
a director or officer of the Registrant serving at the Registrant’s request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, to
the fullest extent permitted by applicable law.
Section 102(b)(7) of the Delaware
General Corporation Law permits a corporation to provide in its certificate of incorporation that a director or officer of the
corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director or officer, except (1) for any breach of the director’s or officer’s duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions by a director or officer not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock repurchases or
redemptions made to a director, (4) for any transaction from which the director or officer derived an improper personal benefit
or (5) an officer in any action by or in the right of the corporation. The Amended and Restated Certificate of Incorporation of
the Registrant provides that the Registrant’s directors and officers shall not be personally liable to it or its stockholders
for monetary damages for breach of fiduciary duty as a director or officer and that if the Delaware General Corporation Law is
amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the
liability of the Registrant’s directors or officers shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended. Any amendment, repeal or elimination of these provisions will not eliminate or
reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment,
repeal or elimination. If the Delaware General Corporation Law is amended to provide for further limitations on the personal
liability of directors or officers of corporations, then the personal liability of the Registrant’s directors and officers
will be further limited to the greatest extent permitted by the Delaware General Corporation Law.
Section 174 of the Delaware General Corporation
Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful
stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved,
or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes
of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice
of the unlawful acts.
As permitted by the Delaware General Corporation
Law, the Registrant has entered into separate indemnification agreements with each of the Registrant’s directors and certain of
the Registrant’s officers which require the Registrant, among other things, to indemnify them against certain liabilities which
may arise by reason of their status as directors, officers or certain other employees.
The Registrant expects to obtain and maintain
insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of those policies,
against certain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits
or proceedings to which they are parties by reason of being or having been directors or officers. The coverage provided by these policies
may apply whether or not the Registrant would have the power to indemnify such person against such liability under the provisions of
the Delaware General Corporation Law.
These indemnification provisions and the indemnification
agreements entered into between the Registrant and the Registrant’s officers and directors may be sufficiently broad to permit
indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act of 1933, as amended.
| Item 7. |
Exemption from Registration Claimed. |
Not applicable.
| * | Filed herewith. |
| + | Portions of this exhibit have been redacted in compliance with
Regulation S-K Item 601(a)(6). |
(a) The
undersigned Registrant hereby undertakes:
(1) to
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Filing Fee Table” in the effective Registration Statement;
and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) that,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) to
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boulder, Colorado, on November 7, 2024.
| EDGEWISE THERAPEUTICS, INC. |
|
| |
|
|
| By: |
/s/
Kevin Koch |
|
| |
Kevin
Koch, Ph.D. |
|
| |
President
and Chief Executive Officer |
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kevin Koch, Ph.D., R. Michael Carruthers and John R. Moore as his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all
capacities, to sign this Registration Statement and any and all amendments thereto (including post-effective amendments), and to file
the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the premises, as fully for all intents and purposes as they, he or she might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or their, his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Kevin Koch |
|
President,
Chief Executive Officer and Director (Principal
Executive Officer) |
|
November 7,
2024 |
| |
| Kevin
Koch, Ph.D. |
|
|
|
|
|
|
|
|
| /s/
R. Michael Carruthers |
Chief Financial Officer (Principal Financial
and Accounting Officer) |
|
November 7,
2024 |
| |
| R.
Michael Carruthers |
|
|
|
|
|
|
|
|
|
| /s/
Peter Thompson |
|
Co-Founder,
Chairman and Director |
|
November 7,
2024 |
| Peter
Thompson, M.D. |
|
|
|
|
|
|
|
| /s/
Alan Russell |
|
Chief
Scientific Officer and Director |
|
November 7,
2024 |
| Alan
Russell, Ph.D. |
|
|
|
| |
|
|
|
|
| /s/
Laura A. Brege |
|
Director |
|
November 7,
2024 |
| Laura
A. Brege |
|
|
|
| |
|
|
|
|
| /s/
Badreddin Edris |
|
Co-Founder
and Director |
|
November 7,
2024 |
| Badreddin
Edris, Ph.D. |
|
|
|
| |
|
|
|
|
| /s/
Jonathan Fox |
|
Director |
|
November 7,
2024 |
| Jonathan
Fox, M.D., Ph.D., FACC |
|
|
|
| |
|
|
|
|
| /s/
Arlene Morris |
|
Director |
|
November 7,
2024 |
| Arlene
Morris |
|
|
|
|
| |
|
|
|
|
| /s/
Jonathan Root |
|
Director |
|
November 7,
2024 |
| Jonathan
Root, M.D. |
|
|
|
Exhibit 5.1
 |
Wilson Sonsini Goodrich & Rosati
Professional Corporation
1155 Canyon Blvd., Suite 400
Boulder, Colorado 80302-5148
o: 650.493.9300
f: 866.974.7329 |
November 7, 2024
Edgewise Therapeutics, Inc.
1715 38th St.
Boulder, CO 80301
| |
Re: |
Registration Statement on Form S-8 |
Ladies and Gentlemen:
At your request, we have
examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Edgewise Therapeutics, Inc.,
a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”)
on or about the date hereof, relating to the registration under the Securities Act of 1933, as amended (the “Act”)
of shares of your common stock, par value $0.0001 per share, consisting of: (i) 2,000,000 shares of common stock (the “Plan
Shares”) to be issued under the Edgewise Therapeutics, Inc. 2024 Inducement Equity Incentive Plan (the “Plan”)
and (ii) 1,456,780 shares of common stock (the “Russell Shares” and together with the Plan Shares, the “Shares”)
to be issued pursuant to a stock option agreement (the “Stock Option Agreement”) granted to Dr. Alan Russell on
September 19, 2017 outside of the Company’s compensatory benefit plans. As your legal counsel, we have reviewed the actions
proposed to be taken by you in connection with the issuance and sale of: (i) the Plan Shares to be issued under the Plan and (ii) the
Russell Shares to be issued pursuant to the Stock Option Agreement dated September 19, 2017 between the Company and Dr. Alan
Russell.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that: (i) the Plan Shares, when issued and sold in the manner described in the Plan
and pursuant to the agreements that accompany the Plan, will be legally and validly issued, fully paid, and nonassessable and (ii) the
Russell Shares when issued and sold in the manner described in the Stock Option Agreement, will be legally and validly issued, fully paid,
and nonassessable.
We hereby consent to the
filing of this opinion as an exhibit to the above referenced Registration Statement and to the use of our name wherever it appears in
the Registration Statement and in any amendments thereto. In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Wilson Sonsini Goodrich & Rosati, P.C. |
| |
WILSON SONSINI GOODRICH & ROSATI |
| |
Professional Corporation |
austin
beijing boston BOULDER brussels hong kong london los angeles new york palo alto
SALT LAKE CITY san diego san francisco seattle shanghai washington, dc wilmington, de
Exhibit 10.2
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
EDGEWISE THERAPEUTICS, INC.
NOTICE OF STOCK OPTION GRANT
| Alan Russell | | |
| (Name) | | |
| | | |
| [***] | | |
| (Address) | | |
| | | |
| [***] | | |
| (Address) | | |
You (the “Optionee”)
have been granted an option (the “Option”) to purchase Common Stock of Edgewise Therapeutics, Inc., a Delaware
corporation (the “Company”) as follows. This Option is granted under and governed by the terms and conditions
of the Stock Option Agreement attached hereto:
| Board Approval Date: |
|
September 19, 2017 |
| |
|
|
| Date of Grant: |
|
September 19, 2017 |
| |
|
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| Vesting Commencement Date: |
|
June 27, 2017 |
| |
|
|
| Exercise Price per Share: |
|
$0.10 |
| |
|
|
| Total Number of Shares Granted: |
|
3,400,000 shares of Common Stock (the “Shares”) |
| |
|
|
| Total Exercise Price: |
|
$ 340,000.00 |
| |
|
|
| Type of Option: |
|
Non-Qualified Stock Option, Issued Pursuant to
Section 4(a)(2) of the Securities Act of 1933, as amended. |
| |
|
|
| Expiration Date: |
|
June 27, 2032, subject to adjustment as set forth
in Section 19 of the Stock Option Agreement. |
| |
|
|
| Vesting Schedule: |
|
This Option shall vest
and become exercisable, in whole or in part, as to 1/48th of the Shares on each monthly anniversary of the Vesting Commencement Date
so that all the Shares shall vest and become exercisable within four years of the Vesting Commencement Date. |
| |
|
Subject to
the provisions below, no unvested or unexercisable Shares shall become vested or become exercisable, as the case may be, after Optionee’s
Termination. Optionee shall in no event be entitled under this Option to purchase a number of Shares of the Company’s Common Stock
greater than the “Total Number of Shares Granted” indicated above. If the application of this vesting schedule results
in a fractional Share, such Share shall be rounded down to the nearest whole Share for each month except for the last month of the
Vesting Schedule when the balance of all Shares shall become exercisable. |
| |
|
|
| Accelerated Vesting: |
|
In the event that at any
time while any of the Shares is not yet vested (i) Optionee has not been previously Terminated and (ii) the Company undergoes
a Change of Control and Optionee is Terminated other than for Cause or he resigns with Good Reason upon or within twelve (12) months
following a Change of Control (as each term is defined below), then automatically and without any further action on the part of the
Company or Optionee, one hundred percent (100%) of the then unvested Shares underlying the Option shall be deemed to be exercisable
and no longer subject to vesting requirements. |
| |
|
|
| |
|
Notwithstanding anything
in this Option to the contrary, if acceleration of the vesting of the Shares or other actions with respect to the Shares (which actions
could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other payments
that the Optionee has the right to receive from the Company or any entity which is a member of an “affiliated group” (as
defined in Section 1504(a) of the Code without regards to Section 1504(b) of the Code) of which the Company is
a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), such deemed
“payments” will be reduced to the largest amount as will result in no portion of such deemed “payments” being
subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such “payments” shall only
be reduced if such reduction would result in Optionee receiving a greater net benefit, on an after-tax basis (including after payment
of any excise tax imposed by Section 4999 of the Code), than Optionee would have received had such reduction not occurred. If
a reduction in payments or benefits constituting “parachute payments” is necessary so that the payments equal a reduced
amount, reduction shall occur in the following order unless Optionee elects in writing a different order: by first reducing or eliminating
the portion of the payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse
order beginning with payments or benefits which are to be paid the farthest in time from the Change of Control or other event. This
Option shall comply with all applicable laws, including, without limitation, Section 409A of the Code. |
| |
|
As used herein,
“Cause” means Optionee’s (i) willful, material violation of any law or regulation applicable to the
business of the Company (or any subsidiaries, parent company, affiliates, successors or assigns of the Company, (each an “Affiliated Entity”),
(ii) conviction for, or guilty plea to, any felony, (iii) commission of fraud, embezzlement, or material theft against
the Company or any Affiliated Entity, (iv) material breach of any applicable invention assignment and/or confidentiality agreement
or similar agreement with the Company or any Affiliated Entity, provided that, with respect to any such material breach that may
be cured, prior to terminating Optionee, the Company will have given Optionee written notice of the breach and the opportunity to
cure such breach within thirty (30) days of such notice, or (v) willful and continued failure or refusal to perform the material,
lawful duties required of Optionee, provided that, with respect to any such willful and continued failures or refusals to perform,
prior to terminating Optionee, the Company will have given Optionee written notice of the failure or refusal and the opportunity
to cure such failure or refusal within thirty (30) days of such notice. |
| |
|
|
| |
|
As used herein, “Change
of Control” means (i) any merger or consolidation of the Company in which the Company shall not be the surviving
entity (or survives only as a subsidiary of another entity whose stockholders did not own all or substantially all of the stock of
the Company in substantially the same proportions as immediately prior to such transaction) or (ii) the sale of all or substantially
all of the Company’s assets or equity to any other person or entity (other than a sale to a wholly-owned subsidiary or a sale of
one or more business lines of the Company such that the Company does not liquidate and continues to operate at least one business
line after such sale, or a bona fide financing transaction). |
| |
|
As used herein,
“Good Reason” means (i) a material diminution in Optionee’s base salary that is not accompanied by a
material diminution in the base salary of other similarly ranked employees (or consultants, as the case may be) of the Company or
Affiliated Entities; (ii) a relocation of Optionee’s principal place of employment more than fifty (50) miles from its location
as of the Date of Grant; or (iii) a substantial diminution in Optionee’s responsibilities, provided, however that if Optionee
is an officer of the Company, a change from one officer position to another shall not alone be deemed to be a substantial diminution
in Optionee’s responsibilities. |
| |
|
|
| Early Exercise: |
|
At any time prior to the
Termination Date (as defined in the Stock Option Agreement) and the Expiration Date, Optionee may elect to exercise the Option as
to any part or all of the Shares subject to the Option prior to the full vesting of such Shares. Any unvested Shares so purchased
shall be subject to repurchase by the Company at the exercise price therefor within ninety (90) days after Optionee’s Termination
Date, and to any other terms or restrictions the Board determines to be appropriate, and conditioned upon the Optionee executing
an early exercise agreement in a form approved by the Board. |
| |
|
|
| Termination Period: |
|
To the extent this Option
is vested and exercisable as of the Termination Date, this Option may be exercised no later than the Expiration Date set forth above. |
By
your signature and the signature of the Company’s representative below, you agree that you have received a copy of the Stock Option Agreement,
and you and the Company agree that the Option described herein shall be subject to the terms of such Stock Option Agreement.
| OPTIONEE |
| EDGEWISE THERAPEUTICS, INC. |
| |
| |
| /s/
Alan Russell |
| By: |
/s/ Kevin
Koch |
| Alan Russell |
| |
Kevin Koch |
| |
| |
President and Chief Executive Officer |
EDGEWISE THERAPEUTICS, INC.
STOCK OPTION AGREEMENT
1. Grant
of Option. Edgewise Therapeutics, Inc., a Delaware corporation (the “Company”), hereby grants to
Alan Russell (“Optionee”), an option (the “Option”) to purchase up to such number of
shares of Common Stock (the “Shares”) as is set forth in the Notice of Stock Option Grant, at the exercise price
per share set forth in the Notice of Stock Option Grant (the “Exercise Price”). Any terms capitalized but not
earlier defined herein shall have the meaning ascribed to them in Section 20 hereof
2. Representations.
Optionee hereby makes the following certifications and representations with respect to the issuance of the Option:
(a) Optionee
is sufficiently aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire this Option. Optionee either has a preexisting personal or business relationship
with the Company or any of its officers, directors or controlling persons, or by reason of Optionee’s business or financial experience
has the capacity to protect his own interests in connection with the issuance of this Option and any exercise of this Option. Optionee
is acquiring the Option and any underlying shares (together, the “Securities”), for investment for his own account,
and not with a view to, or for resale in connection with any “distribution” thereof within the meaning of the Securities Act
or under any applicable provision of state law. Optionee does not have any present intention to transfer the Securities, to any person
or entity. Optionee is aware that his investment in the Company is a speculative investment that has limited liquidity and is subject
to the risk of complete loss. Optionee is able, without impairing his financial condition to hold the Securities for an indefinite period
and have the Securities never result in any value and suffer a complete loss of his investment in any Shares.
(b) Optionee
understands that the Securities have not been registered under the Securities Act by reason of the specific exemption set forth in Section 4(a)(2) thereof,
which exemption depends upon, among other things, the bona fide nature of Optionee’s investment intent and the representations set forth
herein.
(c) Optionee
understands that the Securities are “restricted securities” under applicable U.S. federal and state securities laws and that,
pursuant to these laws, he must hold the Securities indefinitely unless they are registered with the SEC and qualified by state authorities,
or an exemption from such registration and qualification requirements is available. Optionee acknowledges that the Company has no obligation
to register or qualify the Securities for resale. Optionee further acknowledges that if an exemption from registration or qualification
is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period
for the Securities, and requirements relating to the Company which are outside of his control, and which the Company is under no obligation
to and may not be able to satisfy.
(d) Optionee
understands that Optionee may suffer adverse tax consequences as a result of any exercise of the Option or disposition of the Shares.
Optionee represents that Optionee has consulted any tax consultants Optionee deems advisable in connection with the issuance and exercise
of the Option and Optionee is not relying on the Company for any tax advice.
(e)
Optionee understands that Optionee may not transfer any Securities unless
such Securities are registered under the Securities Act or unless, in the opinion of counsel to the Company, an exemption from such registration
is available. Optionee understands that only the Company may file a registration statement with the SEC and that the Company is under
no obligation to do so with respect to the Securities. Optionee has also been advised that an exemption from registration may not be
available or may not permit Optionee to transfer all or any of the Securities.
(f)
Optionee has been advised that under SEC Rule 144
promulgated under the Securities Act, which permits certain limited sales of unregistered securities, is not presently available with
respect to the Securities and, in any event, requires that the Securities be held for a minimum of six months, and in certain cases one
year, after they have been purchased and paid for (within the meaning of Rule 144), before they may be resold under Rule 144.
Optionee acknowledges and understands that the conditions for resale set forth in Rule 144 have not been satisfied and that the
Company has no plans to satisfy these conditions in the foreseeable future
3. Right
to Exercise.
(a) Generally.
This Option shall be exercisable during its Term in accordance with the Vesting Schedule set forth in the Notice of Stock Option Grant
as follows:
(i) This
Option may not be exercised for a fraction of a Share.
(ii) In
the event of Optionee’s death, Disability or other Termination, the exercisability of the Option is governed by Sections 6, 7 and 8 below,
subject to the limitation contained in Section 3(i) above.
(iii) In
no event may this Option be exercised after the Expiration Date of this Option as set forth in the Notice of Stock Option Grant.
(b)
Early Exercise. At any time prior to the
full vesting of this Option and prior to the Termination Date, Optionee may elect, prior to the Expiration Date, to exercise all or part
of this Option, including the unvested portion of this Option; provided, however, that:
(i) a
partial exercise of this Option shall be first for the vested Shares, and second for any unvested Shares;
(ii) any
Shares so purchased from installments that have not vested as of the date of exercise shall be subject to a repurchase option in favor
of the Company, at the per-share exercise price therefor, within ninety (90) days of the Termination Date, as further described in the
Company’s Early Exercise Stock Purchase Agreement in the form approved by the Board (the “Early Exercise Agreement”);
(iii) the
Early Exercise Agreement shall have a vesting schedule that will result in the same vesting as if no early exercise had occurred; and
(iv)
Optionee shall execute and deliver to the Company the Early Exercise Agreement
and all attachments thereto (in lieu of the Exercise Agreement) and shall deliver to the Company full payment for all Shares subject
to the early exercise election.
4. Method
of Exercise; Number of Shares of Warrant Stock. Subject to the terms and conditions of this Option, Optionee may exercise this
Option in whole or in part for the amount of Shares that are vested, at any time or from time to time, on any business day on or before
the Expiration Date, for up to the number of Shares that are vested at the Exercise Price, by surrendering this Option at the principal
offices of the Company, with the Notice of Exercise attached hereto as Exhibit A
duly executed by Optionee, and payment of an amount equal to the product obtained by multiplying (a) the number of Shares
to be purchased by Optionee by (b) the Exercise Price, as determined in accordance with the terms hereof
(a) Form of
Payment. Payment may be made by (i) a check payable to the Company’s order, (ii) wire transfer of funds to the Company,
(iii) cancellation of indebtedness of the Company to Optionee, (iv) upon approval of the Board, a full-recourse promissory
note, (v) net exercise pursuant to Section 4(c) below, or (vi) any combination of the foregoing.
(b) Date
of Exercise. This Option shall be deemed to be exercised upon receipt by the Company of a duly executed Notice of Exercise accompanied
by the full and applicable form of payment.
(c) Net
Exercise Election. Subject to the other terms and conditions herein, Optionee may elect to convert all or a portion of this Option,
without the payment by Optionee of any additional consideration, by the surrender of this Option, or such portion hereof, to the Company,
with the net exercise election selected in the Notice of Election attached hereto at Exhibit A duly executed by Optionee,
into the number of Shares that is obtained under the following formula:
X = Y (A-B)
A
| where | X = the number
of net Shares of Common Stock to be issued to the Holder pursuant to this Section 4(c) as
a result of exercising Y (as defined below). |
| | |
| | Y = the
number of Shares of this Option that Optionee elects to exercise. |
| | |
| | A = the
Fair Market Value of one share of Common Stock. |
| | |
| | B = the
Exercise Price. |
The Company will promptly
respond in writing to an inquiry by Optionee as to the then current Fair Market Value of one share of Common Stock.
5. Restrictions
on Exercise. This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of consideration
for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, or any requirement
of any stock exchange upon which the Shares may then be listed. Assuming compliance with such laws and requirements, for income tax purposes
the Shares shall be considered transferred to Optionee on the date on which the Option is exercised with respect to such Shares. As a
condition to the exercise of this Option, the Company may require Optionee to make any representation and warranty to the Company as
may be required by any applicable law or regulation.
6. Termination
of Relationship. In the event of a Termination of Optionee, Optionee may, to the extent otherwise so entitled at the date of
such Termination (the “Termination Date”),
exercise this Option during the Term. To the extent that Optionee was not entitled to exercise this Option at such Termination
Date (after giving effect to any acceleration of vesting and exercisability), or if Optionee does not exercise this Option within the
Term, the Option shall terminate.
7. Disability
of Optionee.
(a) Notwithstanding
the provisions of Section 6 above, in the event of Termination of Optionee as a result of Optionee’s total and permanent disability
(as defined in Section 22(e)(3) of the Code), Optionee may, no event later than the Expiration Date set forth in the Notice
of Stock Option Grant, exercise this Option to the extent Optionee was entitled to exercise it as of such Termination Date. To the extent
that Optionee was not entitled to exercise the Option as of the Termination Date, or if Optionee does not exercise such Option (to the
extent so entitled) within the time specified in this Section 7(a), the Option shall terminate.
(b)
Notwithstanding the provisions of Section 6 above, in the event
of Termination of Optionee as a result of Disability not constituting a total and permanent disability (as set forth in Section 22(e)(3) of
the Code), Optionee may, no event later than the Expiration Date set forth in the Notice of Stock Option Grant, exercise this Option
to the extent Optionee was entitled to exercise it as of such Termination Date. To the extent that Optionee was not entitled to exercise
the Option at the Termination Date, or if Optionee does not exercise such Option (to the extent so entitled) within the time specified
in this Section 7(b), the Option shall terminate.
8. Death
of Optionee. Notwithstanding the provisions of Section 6 above, in the event of the death of Optionee (a) during the
Term of this Option and while an employee, officer, director or consultant of the Company or a Parent or Subsidiary of the Company and
having been in continuous status as an employee, officer, director or consultant since the date of grant of the Option, or (b) after
Optionee’s Termination Date, the Option may be exercised at any time but in no event later than the Expiration Date set forth in the
Notice of Stock Option Grant, by Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent of the right to exercise that had accrued at the Termination Date.
9. Non-Transferability
of Option. This Option may not be transferred in any manner other than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by him. The terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of Optionee.
10. Term
of Option. This Option may be exercised only within the Term.
11. Tax
Consequences.
(a) Tax
Advice. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A
RESULT OF EXERCISE OF THIS OPTION OR DISPOSITION OF THE SHARES EXERCISED. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH OR WILL
CONSULT WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE PRIOR TO THE EXERCISE OF THIS OPTION OR DISPOSITION OF THE EXERCISED
SHARES. OPTIONEE CONFIRMS THAT IT IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
(b) Exercise
of Non-Qualified Stock Option. There may be a regular federal income tax liability and state income tax liability upon the exercise
of the Option. Optionee may be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. If Optionee is an employee, the Company
will be required to withhold from Optionee’s compensation or collect from Optionee and pay to the applicable taxing authorities an amount
equal to a percentage of this compensation income at the time of exercise.
(c) Disposition
of Shares. If Shares are held for at least one year, any gain realized on disposition of the Shares will be treated as long-term
capital gain for federal income tax purposes. The long-term capital gain will be taxed for federal income tax and alternative minimum
tax purposes at then-prevailing tax rates upon a transfer of the Shares. There may be additional long-term holding requirements under
state law.
12. Withholding
Tax Obligations. Prior to the issuance of the Shares upon exercise of this Option, Optionee must pay or make adequate provision
for any applicable federal or state withholding obligations of the Company. If Optionee is subject at the time of exercise of this Option
to Section 16(b) of the Exchange Act (an “Insider”), Optionee may provide for payment of Optionee’s
minimum statutory withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value
equal to the minimum amount of taxes required to be withheld. In such case, the Company shall issue the net number of Shares to Optionee
by deducting the Shares retained from the Shares exercised.
13. Market
Standoff Agreement. In connection with the IPO and upon request of the Company or the underwriters managing such underwritten
offering of the Company’s securities, Optionee agrees not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any securities of the Company (other than those included in the registration) without the prior written consent
of the Company or such underwriters, as the case may be, for such period of time (not to exceed one hundred eighty (180) days, except
that such period may be increased as reasonably deemed necessary by the managing underwriter(s) to comply with Conduct Rule 2711
of the National Association of Securities Dealers or Rule 472 of the New York Stock Exchange or similar requirements) from the effective
date of such registration as may be requested by the Company or such managing underwriters and to execute an agreement reflecting the
foregoing as may be requested by the underwriters at the time of the Company’s IPO.
14. Limitations
on Transfer of Exercised Shares. In addition to any other limitation on transfer created by applicable securities laws, following
exercise of this Option, Optionee shall not assign, encumber or dispose of any interest in the exercised Shares except in compliance
with the provisions below and applicable securities laws.
(a) Right
of First Refusal. Before any Shares exercised by Optionee or held by any transferee of Optionee (either being sometimes referred
to herein as the “Holder”) may be sold or otherwise transferred (including transfer by gift or operation of law),
the Company or its assignee(s) shall have a right of first refusal to purchase such Shares on the terms and conditions set forth
in this Section 14(a) (the “Right of First Refusal”).
(i) Notice
of Proposed Transfer. The Holder of the Shares shall deliver to the Company a written notice (the “Notice”)
stating: (i) the Holder’s bona fide intention to sell or otherwise transfer such Shares; (ii) the name of each proposed purchaser
or other transferee (“Proposed Transferee”); (iii) the number of Shares to be transferred to each Proposed
Transferee; and (iv) the terms and conditions of each proposed sale or transfer. The Holder shall offer the Shares at the same price
(the “Offered Price”) and upon the same terms (or terms as similar as reasonably possible) to the Company or
its assignee(s).
(ii) Exercise
of Right of First Refusal. At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may,
by giving written notice to the Holder, elect to purchase all, but not less than all, of the Shares proposed to be transferred to any
one or more of the Proposed Transferees, at the purchase price determined in accordance with subsection (iii) below.
(iii) Purchase
Price. The purchase price (“Purchase Price”) for the Shares purchased by the Company or its assignee(s) under
this Section 14(a) shall be the Offered Price. If the Offered Price includes consideration other than cash, the cash equivalent
value of the non-cash consideration shall be determined by the Board in good faith.
(iv) Payment.
Payment of the Purchase Price shall be made, at the option of the Company or its assignee(s), in cash (by check), by cancellation of
all or a portion of any outstanding indebtedness of the Holder to the Company (or, in the case of repurchase by an assignee, to the assignee),
or by any combination thereof within thirty (30) days after receipt of the Notice or in the manner and at the times set forth in the
Notice.
(v) Holder’s
Right to Transfer. If all of the Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased
by the Company and/or its assignee(s) as provided in this Section 14(a), then the Holder may sell or otherwise transfer such
Shares to that Proposed Transferee at the Offered Price or at a higher price, provided that such sale or other transfer is consummated
within sixty (60) days after the date of the Notice and provided further that any such sale or other transfer is effected in accordance
with any applicable securities laws and the Proposed Transferee agrees in writing that the provisions of this Section 14 shall continue
to apply to the Shares in the hands of such Proposed Transferee. If the Shares described in the Notice are not transferred to the Proposed
Transferee within such period, or if the Holder proposes to change the price or other terms to make them more favorable to the Proposed
Transferee, a new Notice shall be given to the Company, and the Company and/or its assignees shall again be offered the Right of First
Refusal before any Shares held by the Holder may be sold or otherwise transferred.
(vi) Exception
for Certain Family Transfers. Anything to the contrary contained in this Section 14(a) notwithstanding, the transfer
of any or all of the Shares during Optionee’s lifetime or on Optionee’s death by will or intestacy to Optionee’s Immediate Family (as
defined below) or a trust for the benefit of Optionee’s Immediate Family shall be exempt from the provisions of this Section 14(a).
“Immediate Family” as used herein shall mean spouse, child or other lineal descendant, antecedent, father, mother,
brother or sister. In such case, the transferee or other recipient shall receive and hold the Shares so transferred subject to the provisions
of this Section 14, and there shall be no further transfer of such Shares except in accordance with the terms of this Section 14.
(b)
Company’s Right to Purchase upon Involuntary Transfer. In the
event, at any time after the date of this Stock Option Agreement, of any transfer by operation of law or other involuntary transfer (including
divorce or death, but excluding, in the event of death, a transfer to Immediate Family as set forth in Section 14(a)(vi) above)
of all or a portion of the Shares by the record holder thereof, the Company shall have the right to purchase all of the Shares transferred
at the greater of the purchase price paid by Optionee pursuant to this Stock Option Agreement or the Fair Market Value of the Shares
on the date of transfer. Upon such a transfer, the person acquiring the Shares shall promptly notify the Secretary of the Company of
such transfer. The right to purchase such Shares shall be provided to the Company for a period of 30 days following receipt by the Company
of written notice by the person acquiring the Shares.
(c) Assignment.
The right of the Company to purchase any part of the Shares may be assigned in whole or in part to any stockholder or stockholders of
the Company or other persons or organizations.
(d) Restrictions
Binding on Transferees. All transferees of Shares or any interest therein will receive and hold such Shares or interest subject
to the provisions of this Stock Option Agreement. Any sale or transfer of the Shares shall be void unless the provisions of this Stock
Option Agreement are satisfied.
(e)
Termination of Rights. The Right of First Refusal, the Company’s
right to repurchase the Shares in the event of an involuntary transfer pursuant to Section 14(b) above, and the other provisions
of this Section 14 shall terminate upon the first sale of Common Stock of the Company to the general public pursuant to a registration
statement filed with and declared effective by the SEC under the Securities Act.
15. Ancillary
Agreements.
(a) Voting
Agreement. As a condition to receipt of this Option, and concurrently with the exercise of this Option, Optionee shall execute
and be deemed to be a “Common Holder” under, and shall be bound by the provisions of, that certain Voting Agreement dated June 13,
2017 by and among the Company and certain equity holders of the Company thereto, as such agreement may be amended, modified or superseded
from time to time (the “Voting Agreement”). Optionee also agrees to execute a counterpart signature page to
the Voting Agreement concurrently with the exercise of this Option or at any other time if requested by the Company. A copy of the Voting
Agreement is available from the Company.
(b) Co-Sale
Agreement. As a condition to receipt of this Option, and concurrently with the exercise of this Option, Optionee shall execute
and be deemed to be a “Common Holder” under, and shall be bound by the provisions of, that certain Right of First Refusal and
Co-Sale Agreement dated June 13, 2017 by and among the Company and certain equity holders of the Company thereto, as such agreement
may be amended, modified or superseded from time to time (the “Co-Sale Agreement”). Optionee also agrees to execute
a counterpart signature page to the Co-Sale Agreement concurrently with the exercise of this Option or at any other time if requested
by the Company. In the event there is any conflict between any term of the Co-Sale Agreement and any term set forth herein, the term
set forth in the Co-Sale Agreement shall govern and control. A copy of the Co-Sale Agreement is available from the Company.
16. Adjustment
of Shares. In the event that the number of outstanding shares of the Company’s Common Stock is changed by a stock dividend, recapitalization,
stock split, reverse stock split, subdivision, combination, reclassification or similar change in the capital structure of the Company
without consideration, consolidation, subdivision of the Shares, a rights offering, a reorganization, merger, spin-off, or split-up,
then the Exercise Prices of and number of Shares subject to this Option while outstanding will be proportionately adjusted, subject to
any required action by the Board or the stockholders of the Company and compliance with applicable securities laws; provided, however,
that fractions of a Share will not be issued but will either be paid in cash at the Fair Market Value of such fraction of a Share or
will be rounded down to the nearest whole Share, as determined by the Board, and provided, further, that the Exercise Price of the Option
may not be decreased to below the par value of the Shares.
17. Privileges
of Stock Ownership. Optionee shall not have any of the rights of a stockholder with respect to any Shares until the Shares are
issued to the Optionee. After Shares are issued to the Optionee, the Optionee will be a stockholder and have all the rights of a stockholder
with respect to such Shares, including the right to vote and receive all dividends or other distributions made or paid with respect to
such Shares.
18. No
Obligation to Employ. Nothing in this Option will confer or be deemed to confer on the Optionee any right to continue in the
employ of, or to continue any other relationship with, the Company or any Parent or Subsidiary of the Company or limit in any way the
right of the Company or any Parent or Subsidiary of the Company to terminate Optionee’s employment or other relationship at any time,
with or without cause.
19. Corporate
Transactions. In the event of an IPO prior to the full exercise of this Option, the Expiration Date may, at the sole written
election of the Company, be amended to mean the closing of the IPO. In addition, in the event of a Liquidation Event prior to the full
exercise of this Option and prior to an IPO, the Expiration Date may, at the sole written election of the Company, be amended to mean
the effective date of such Liquidation Event.
20. Definitions.
As used in this Option, the following terms will have the following meanings:
“Board”
means the Board of Directors of the Company.
“Code” means the Internal Revenue
Code of 1986, as amended.
“Disability”
means a disability, whether temporary or permanent, partial or total, as determined by the Board.
“Exercise
Price” means the price at which a holder of an Option may purchase the Shares issuable upon exercise of the Option.
“Liquidation
Event” has the meaning set forth in the Company’s Amended and Restated Certificate of Incorporation, as may be amended
from time to time.
“Fair
Market Value” means, as of any date, the value of a share of the Company’s Common Stock determined as follows:
| (a) | if the Common Stock is publicly traded
and listed on a national securities exchange, its closing price on the date of determination
on the principal national securities exchange on which the Common Stock is listed or admitted
to trading, as reported in The Wall Street Journal (or, if not so reported, as otherwise
reported by any newspaper or other source as the Board may determine); |
| (b) | if the Common Stock is publicly traded
but is not listed or admitted to trading on a national securities exchange, the average of
the closing bid and asked prices on the date of determination as reported by The Wall
Street Journal (or, if not so reported, as otherwise reported by any newspaper or other
source as the Board may determine); |
| (c) | if none of the foregoing is applicable,
by the Board in good faith. |
“IPO”
means an underwritten initial public offering of the Company’s Common Stock.
“Parent”
means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of such corporations
other than the Company owns stock representing fifty percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
“SEC” means the Securities and Exchange
Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
“Subsidiary”
means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock representing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.
“Term”
means the period commencing with the Date of Grant and ending on the Expiration Date.
“Terminate”,
“Terminated” or “Termination” means, for purposes of this Option with respect
to the Optionee, that the Optionee has for any reason ceased to provide services as an employee, officer, director, or consultant to
the Company or a Parent or Subsidiary of the Company, as determined in the sole discretion of the Board. The Optionee will not be deemed
to have ceased to provide services in the case of (i) sick leave, (ii) military leave, or (iii) any other leave of absence
approved by the Board, provided that such leave is for a period of not more than ninety (90) days (a) unless reinstatement upon
the expiration of such leave is guaranteed by contract or statute, or (b) unless provided otherwise pursuant to formal policy adopted
from time to time by the Board and issued and promulgated in writing. If the Optionee is on (i) sick leave, (ii) military leave
or (iii) an approved leave of absence, the Board may make such provisions respecting suspension of vesting of this Option while
on leave from the Company or a Parent or Subsidiary of the Company as it may deem appropriate, except that in no event may this Option
be exercised after the expiration of the Term. The Board will have sole discretion to determine when and whether Optionee has ceased
to provide services to the Company.
20. Miscellaneous.
(a) Governing
Law. This Option and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts
of law.
(b) Entire
Agreement; Enforcement of Rights. The Option Notice is hereby incorporated by reference. This Stock Option Agreement (including
the Option Notice) sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges
all prior discussions between them. No modification of or amendment to this Stock Option Agreement, nor any waiver of any rights under
this Stock Option Agreement, shall be effective unless in writing signed by the parties to this Stock Option Agreement. The failure by
either party to enforce any rights under this Stock Option Agreement shall not be construed as a waiver of any rights of such party.
(c) Severability.
If one or more provisions of this Stock Option Agreement are held to be_ unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision,
then (i) such provision shall be excluded from this Stock Option Agreement, (ii) the balance of this Stock Option Agreement
shall be interpreted as if such provision were so excluded and (iii) the balance of this Stock Option Agreement shall be enforceable
in accordance with its terms.
(c) Construction.
This Stock Option Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Stock Option Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity
shall be construed in favor of or against any one of the parties hereto.
(d) Notices.
Any and all notices required or permitted to be given to a party pursuant to the provisions of this Stock Option Agreement will be in
writing and will be effective and deemed to provide such party sufficient notice under this Stock Option Agreement on the earliest of
the following: (i) at the time of personal delivery, if delivery is in person; (ii) at the time of sending, if sent during
normal business hours of the recipient, by confirmed e-mail or confirmed facsimile with such confirmation printed, and if not sent at
normal business hours, then on the next business day; (iii) at the time of delivery if sent by express overnight courier; or (iv) forty
eight (48) hours after deposit in the United States mail by certified or registered mail (return receipt requested) for United States
deliveries. All notices for delivery outside the United States will be sent by facsimile or by express courier. All notices not delivered
personally or by facsimile or e-mail will be sent with postage and/or other charges prepaid and properly addressed to the party to be
notified at the address or facsimile number or e-mail set forth below the signature lines of this Stock Option Agreement or at such other
address or facsimile number or email as such other party may designate by one of the indicated means of notice herein to the other party
hereto.
(e) Counterparts.
This Stock Option Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together
shall constitute one instrument.
(f) Successors
and Assigns. The rights and benefits of this Stock Option Agreement shall inure to the benefit of, and be enforceable by the
Company’s successors and assigns. Except as provided in Section 9, the rights and obligations of Optionee under this Stock Option
Agreement may only be assigned with the prior written consent of the Company.
[Signature
Page Follows]
This Stock Option Agreement may be executed in
two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one document.
| EDGEWISE THERAPEUTICS, INC. |
|
ALAN RUSSELL |
| |
|
|
| |
|
|
| By: |
/s/ Kevin Koch |
|
By: |
/s/ Alan Russell |
| Name: |
Kevin Koch |
|
Name: |
Alan Russell |
| Title: |
President and Chief Executive Officer |
|
|
| |
|
|
| Address: |
|
Address: |
| 4430 Arapahoe Avenue, Suite 220 |
|
[***] |
| Boulder, CO 80303 |
|
|
| Attention: Chief Executive Officer |
|
E-mail: [***] |
| E-mail: kkoch@edgewisetx.com |
|
|
| |
|
|
| Dated: September 19, 2017 |
|
Dated: September 19, 2017 |
EXHIBIT A
NOTICE OF EXERCISE
Edgewise Therapeutics, Inc.
4430 Arapahoe Avenue, Suite 220
Boulder, CO 80303
Ladies and Gentlemen:
This constitutes notice under my stock option
identified below that I elect to purchase the number of shares of Common Stock of Edgewise Therapeutics, Inc. (the “Company”)
set forth below for the price set forth below.
| Stock
Option dated: |
_______________________ |
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| Number
of shares as to which Option is exercised: |
_______________________ |
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| |
|
|
| Certificates
to be issued in name of: |
_______________________ |
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| |
|
|
| Total
exercise price: |
$______________________ |
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| Select (a) or (b) below: |
|
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|
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| (a) Cash
payment delivered herewith: |
$______________________ |
|
or
(b) The
undersigned elects to convert the Option into shares of Common Stock by net exercise election pursuant to Section 4(c) of the
Option. This conversion is exercised with respect to the number shares set forth above covered by the Option.
By this exercise, I
agree (i) to provide such additional documents as the Company may require or reasonably request; and (ii) to provide for the
payment by me to the Company (in the manner designated by the Company) of the Company’s withholding obligations, if any, relating to
the exercise of this Option.
I hereby make the following
certifications and representations with respect to the number of shares of Common Stock of the Company listed above (the “Shares”),
which are being acquired by me for my own account upon exercise of the Option as set forth above:
I am sufficiently aware of
the Company’s business affairs and financial condition and have acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the Shares. I am purchasing the Shares for investment for my own account, and not with a view to,
or for resale in connection with any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the
“1933 Act”) or under any applicable provision of state .law. I do not have any present intention to transfer
the Shares to any person or entity. I am aware that my investment in the Company is a speculative investment that has limited liquidity
and is subject to the risk of complete loss. I am able, without impairing my financial condition to hold the Shares for an indefinite
period and to suffer a complete loss of his or her investment in the Shares.
I understand that the Shares
have not been registered under the 1933 Act by reason of the specific exemption set forth in Section 4(a)(2) thereof, which
exemption depends upon, among other things, the bona fide nature of my investment intent and the representations set forth herein.
I understand that the Shares
are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, I
must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities,
or an exemption from such registration and qualification requirements is available. I acknowledge that the Company has no obligation
to register or qualify the Shares for resale. I further acknowledge that if an exemption from registration or qualification is available,
it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the
Shares, and requirements relating to the Company which are outside of my control, and which the Company is under no obligation to and
may not be able to satisfy.
I understand that I may suffer
adverse tax consequences as a result of my purchase or disposition of the Shares. I represent that I have consulted any tax consultants
I deem advisable in connection with the purchase or disposition of the Shares and that I am not relying on the Company for any tax advice.
I understand that I may not
transfer any Shares unless such Shares are registered under the 1933 Act or unless, in the opinion of counsel to the Company, an exemption
from such registration is available. I understand that only the Company may file a registration statement with the SEC and that the Company
is under no obligation to do so with respect to the Shares. I have also been advised that an exemption from registration may not be available
or may not permit me to transfer all or any of the Shares.
I have been advised that
under SEC Rule 144 promulgated under the 1933 Act, which permits certain limited sales of unregistered securities, is not presently
available with respect to the Shares and, in any event, requires that the Shares be held for a minimum of six months, and in certain
cases one year, after they have been purchased and paid for (within the meaning of Rule 144), before they may be resold under
Rule 144. I acknowledge and understand that the conditions for resale set forth in Rule 144 have not been satisfied and that
the Company has no plans to satisfy these conditions in the foreseeable future
I understand that the Shares
are subject to a right of first refusal in favor of the Company, which is applicable on both voluntary and involuntary transfers of the
Shares, as set forth in Sections 14 and 15 of the stock option agreement pursuant to which the Shares were issued. I understand that
the Shares may be subject to other restrictions on transfer or restrictions on voting. Any transferee of the Shares will be subject to
all such restrictions.
I further acknowledge that
all certificates representing any of the Shares subject to the provisions of the Option shall have endorsed thereon appropriate legends
reflecting the foregoing limitations, as well as any legends reflecting restrictions pursuant to the Company’s Certificate of Incorporation,
Bylaws and/or applicable securities laws.
In connection with the underwritten
offering of the Company’s Common Stock under the 1933 Act, I agree, upon request of the Company or the underwriters managing such
underwritten offering, not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities
of the Company (other than those included in the registration) without the prior written consent of the Company or such underwriters,
as the case may be, for such period of time (not to exceed one hundred eighty (180) days, except that such period may be increased as
reasonably deemed necessary by the managing underwriter(s) to comply with Conduct Rule 2711 of the National Association of
Securities Dealers or Rule 472 of the New York Stock Exchange or similar requirements) from the effective date of such registration
as may be requested by the Company or such managing underwriters and to execute an agreement reflecting the foregoing as may be requested
by the underwriters at the time of such offering.
| | Very truly yours, |
| | |
| | |
| | Alan Russell |
Exhibit 23.1
Consent of Independent
Registered Public Accounting Firm
We consent to the use of our report dated February 22, 2024,
with respect to the financial statements of Edgewise Therapeutics, Inc., incorporated herein by reference.
Denver, Colorado
November 7, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Edgewise Therapeutics, Inc.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered Securities
Security
Type | |
Title of Securities to be
Registered | |
Fee
Calculation
Rule | |
Amount to be Registered(1) | | |
Proposed Maximum Offering Price Per Share | | |
Maximum
Aggregate
Offering Price | | |
Fee Rate | | |
Amount of
Registration
Fee | |
| Equity | |
Common Stock, par value $0.0001 per share, reserved for issuance pursuant to the Edgewise Therapeutics, Inc. 2024 Inducement Equity Incentive Plan | |
Other | |
| 2,000,000 | (2) | |
$ | 33.80 | (3) | |
$ | 67,600,000.00 | | |
| 0.00015310 | | |
$ | 10,349.56 | |
| Equity | |
Common Stock, par value $0.0001 per share | |
Other | |
| 1,456,780 | (4) | |
$ | 0.18 | (5) | |
$ | 262,220.40 | | |
| 0.00015310 | | |
$ | 40.15 | |
| Total Offering Amounts | |
| |
| | | |
| | | |
$ | 67,862,220.40 | | |
| | | |
$ | 10,389.71 | |
| Total Fee Offset | |
| |
| | | |
| | | |
| | | |
| | | |
$ | — | |
| Net Fee Due | |
| |
| | | |
| | | |
| | | |
| | | |
$ | 10,389.71 | |
| (1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, $0.0001 par value per share ("Common Stock"), that become issuable under (i) the Registrant’s 2024 Inducement Equity Incentive Plan (the "Plan") and (ii) the currently outstanding stock option award granted to Dr. Alan Russell on September 19, 2017, pursuant to the stock option agreement between Dr. Alan Russell and the Company (the “Stock Option Agreement”) outside of the Company’s compensatory benefit plans, by reason of an event such as any stock split, stock dividend or similar adjustment effected without the Registrant’s receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
| (2) |
Reflects 2,000,000 shares of Common Stock reserved for issuance under the Plan. |
| (3) |
Estimated in accordance with Rules 457 (c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $33.80 per share, which represents the average of the high and low prices of the Registrant’s common stock on November 1, 2024, as reported on the Nasdaq Global Select Market. |
| (4) |
Reflects 1,456,780 shares of Common Stock reserved for issuance pursuant to the Stock Option Agreement. |
| (5) |
Estimated in accordance with Rule 457(h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $0.18 per share, which represents the exercise price per share for the stock option award granted to Dr. Alan Russell under the Stock Option Agreement. |
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