UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Day One Biopharmaceuticals, Inc.
(Name of Issuer)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
23954D109
(CUSIP Number)
Alejandro Moreno
c/o Access Industries, Inc.
40 West 57th Street, 28th Floor
New York, New York 10019
(212) 247-6400
with copies to:
Matthew E. Kaplan
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
(212) 909-6000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
June 1, 2021
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. ☐
CUSIP No. 23954D109
1 |
NAME OF REPORTING PERSON.
AI Day1 LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ | |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
9,377,776 shares | ||||
8 | SHARED VOTING POWER
0 shares | |||||
9 | SOLE DISPOSITIVE POWER
9,377,776 shares | |||||
10 | SHARED DISPOSITIVE POWER
0 shares |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,377,776 shares | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
☐ | |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11);
15.1%(1) | |||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO (Limited Liability Company) |
(1) | Based on an aggregate of 61,928,939 shares of Common Stock outstanding immediately following the Issuers initial public offering, which assumes full exercise of the underwriters option to purchase additional shares, as reported in the Issuers prospectus filed pursuant to Rule 424(b)(4) with the Securities and Exchange Commission (the SEC) on May 27, 2021. |
CUSIP No. 23954D109
1 |
NAME OF REPORTING PERSON.
Access Industries Holdings LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ | |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
0 shares | ||||
8 | SHARED VOTING POWER
9,377,776 shares | |||||
9 | SOLE DISPOSITIVE POWER
0 shares | |||||
10 | SHARED DISPOSITIVE POWER
9,377,776 shares |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,377,776 shares | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
☐ | |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11);
15.1%(1) | |||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO (Limited Liability Company) |
(1) | Based on an aggregate of 61,928,939 shares of Common Stock outstanding immediately following the Issuers initial public offering, which assumes full exercise of the underwriters option to purchase additional shares, as reported in the Issuers prospectus filed pursuant to Rule 424(b)(4) with the SEC on May 27, 2021. |
CUSIP No. 23954D109
1 |
NAME OF REPORTING PERSON.
Access Industries Management, LLC | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ | |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
0 shares | ||||
8 | SHARED VOTING POWER
9,377,776 shares | |||||
9 | SOLE DISPOSITIVE POWER
0 shares | |||||
10 | SHARED DISPOSITIVE POWER
9,377,776 shares |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,377,776 shares | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
☐ | |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11);
15.1%(1) | |||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO (Limited Liability Company) |
(1) | Based on an aggregate of 61,928,939 shares of Common Stock outstanding immediately following the Issuers initial public offering, which assumes full exercise of the underwriters option to purchase additional shares, as reported in the Issuers prospectus filed pursuant to Rule 424(b)(4) with the SEC on May 27, 2021. |
CUSIP No. 23954D109
1 |
NAME OF REPORTING PERSON.
Len Blavatnik | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF | |||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ | |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
0 shares | ||||
8 | SHARED VOTING POWER
9,377,776 shares | |||||
9 | SOLE DISPOSITIVE POWER
0 shares | |||||
10 | SHARED DISPOSITIVE POWER
9,377,776 shares |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,377,776 shares | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
☐ | |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11);
15.1%(1) | |||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN |
(1) | Based on an aggregate of 61,928,939 shares of Common Stock outstanding immediately following the Issuers initial public offering, which assumes full exercise of the underwriters option to purchase additional shares, as reported in the Issuers prospectus filed pursuant to Rule 424(b)(4) with the SEC on May 27, 2021. |
CONTINUATION PAGES TO SCHEDULE 13D
This Schedule 13D is being filed by AI Day1 LLC (AI Day1), Access Industries Holdings LLC (AIH), Access Industries Management, LLC (AIM) and Len Blavatnik (collectively, the Reporting Persons, and each, a Reporting Person), in respect of the common stock, par value $0.0001 per share (the Common Stock), of Day One Biopharmaceuticals, Inc. (the Issuer).
Item 1 Security and Issuer
This Schedule 13D relates to the Common Stock of the Issuer. The address of the Issuers principal executive office is: 395 Oyster Point Blvd., Suite 217, South San Francisco, CA 94080.
Item 2 Identity and Background
Name |
Address of Business/Principal Office |
Principal Business/Occupation |
Jurisdiction
of | |||
AI Day1 LLC | c/o Access Industries, Inc. 40 West 57th Street, 28th Fl. New York, NY 10019 |
Holding company for a strategic investment | Delaware | |||
Access Industries Holdings LLC | c/o Access Industries, Inc. 40 West 57th Street, 28th Fl. New York, NY 10019 |
Holding strategic investments in a variety of industries worldwide | Delaware | |||
Access Industries Management, LLC | c/o Access Industries, Inc. 40 West 57th Street, 28th Fl. New York, NY 10019 |
Manager of holdings of strategic investments in a variety of industries worldwide | Delaware | |||
Len Blavatnik | c/o Access Industries, Inc. 40 West 57th Street, 28th Fl. New York, NY 10019 |
Chairman of Access Industries, Inc., the principal business of which is holding strategic investments in a variety of industries worldwide | United States of America |
The agreement among the Reporting Persons relating to the joint filing of this Schedule 13D is filed as Exhibit 99.3 hereto.
None of the Reporting Persons has, during the last five years: (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3 Source and Amount of Funds or Other Considerations
In three closings in December 2019, November 2020 and December 2020, AI Day1 acquired 3,338,228 shares of Series A redeemable convertible preferred stock of Day One Biopharmaceuticals Holding Company, LLC (Day One) at a per share price of $6.7401 in cash. In February 2021, AI Day1 acquired 318,880 shares of Series B redeemable convertible preferred stock of Day One at a per share price of $31.3597 in cash. AI Day1 funded these purchases using capital contributed from affiliated entities, which funded that capital using cash on hand.
On May 23, 2021, Day One effected a forward split of its capital stock at a 2.325-for-1 ratio (the Stock Split). Following the Stock Split, AI Day1 held 7,761,380 shares of Series A redeemable convertible preferred stock of Day One and 741,396 shares of Series B redeemable convertible preferred stock of Day One.
Immediately prior to the effectiveness of the Issuers registration statement on Form S-1 on May 27, 2021, Day One converted from a Delaware limited liability company to a Delaware corporation and changed its name to Day One Biopharmaceuticals, Inc. (the Conversion). In connection with the Conversion, AI Day1 received one share of Series A redeemable convertible stock of the Issuer for each share of Series A redeemable convertible preferred stock of Day One and received one share of Series B redeemable convertible stock of the Issuer for each share of Series B redeemable convertible preferred stock of Day One. Following the Conversion and immediately prior to the completion of the Issuers initial public offering on June 1, 2021, each outstanding share of the Issuers Series A redeemable convertible preferred stock and Series B redeemable convertible preferred stock automatically converted into one share of Common Stock, and AI Day1 received an aggregate of 8,502,776 shares of Common Stock.
On June 1, 2021, AI Day1 purchased 875,000 shares of Common Stock in the Issuers initial public offering at the public offering price of $16.00 per share. AI Day1 funded this purchase using capital contributed from affiliated entities, which funded that capital using cash on hand.
Item 4 Purpose of Transaction
The Reporting Persons who hold Common Stock directly acquired those securities as an investment in the regular course of their businesses. The Reporting Persons may engage in discussions with management, the Issuers board of directors, other stockholders of the Issuer and other relevant parties concerning the business, operations, board composition, management, strategy and future plans of the Issuer. Daniel Becker, M.D., Ph.D., a biotechnology principal of Access Industries, Inc., which is an affiliate of AI Day1, currently serves on the Issuers board of directors. Subject to the terms of the Investors Rights Agreement (as defined below), the Reporting Persons intend to re-examine their investment from time to time and, depending on prevailing market conditions, other investment opportunities, liquidity requirements or other investment considerations the Reporting Persons deem material, the Reporting Persons may from time to time acquire additional Common Stock in the open market, block trades, negotiated transactions, or otherwise and may also dispose of all or a portion of the Issuers securities, in open market or privately negotiated transactions, and/or enter into derivative transactions with institutional counterparties with respect to the Issuers securities, in each case, subject to limitations under applicable law. The Reporting Persons have not yet determined which, if any, of the above courses of action they may ultimately take. The Reporting Persons future actions with regard to the Issuer are dependent on their evaluation of the factors listed above, circumstances affecting the Issuer in the future, including prospects of the Issuer, general market and economic conditions and other factors deemed relevant. The Reporting Persons reserve the right to determine in the future whether to change the purpose or purposes described above or whether to adopt plans or proposals of the type specified above or otherwise.
Item 5 Interest in Securities of the Issuer
(a) and (b) The responses of each of the Reporting Persons with respect to Rows 11, 12, and 13 of the cover pages of this Schedule 13D that relate to the aggregate number and percentage of common stock (including but not limited to footnotes to such information) are incorporated herein by reference.
The responses of each of the Reporting Persons with respect to Rows 7, 8, 9, and 10 of the cover pages of this Schedule 13D that relate to the number of common stock as to which each of the persons or entities referenced in Item 2 above has sole or shared power to vote or to direct the vote of and sole or shared power to dispose of or to direct the disposition of (including but not limited to footnotes to such information) are incorporated herein by reference.
9,377,776 shares of Common Stock are owned directly by AI Day1 and may be deemed to be beneficially owned by AIH, AIM and Mr. Blavatnik because (i) AIH indirectly controls all of the outstanding voting interests in AI Day1, (ii) AIM controls AIH and (iii) Mr. Blavatnik controls AIM and holds a majority of the outstanding voting interests in AIH. Each of the Reporting Persons (other than AI Day1), and each of their affiliated entities and the officers, partners, members and managers thereof, disclaims beneficial ownership of these securities.
(c) The following transactions in the Issuers securities have been effected by Reporting Persons within the 60 days prior to this filing:
The information set forth in Item 3 of this Schedule 13D is incorporated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6 Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
Lock-up Agreement
In connection with the Issuers initial public offering, on March 18, 2021, AI Day1 entered into a lock-up agreement (the Lock-up Agreement) with J.P. Morgan Securities LLC, as representative of the underwriters. The Lock-up Agreement prohibits AI Day1 and any of its direct or indirect affiliates from, among other things, offering for sale, selling, contracting to sell, granting any option for the sale of, transferring or otherwise disposing of any shares of Common Stock, options or warrants to acquire shares of Common Stock or any security or instrument related to Common Stock, or entering into any swap, hedge or other arrangement that transfers any of the economic consequences of ownership of Common Stock, for a period of 180 days following May 27, 2021, the date of the Issuers prospectus filed pursuant to Rule 424(b)(4) with the SEC, without the prior written consent of J.P. Morgan Securities LLC, subject to certain exceptions. J.P. Morgan Securities LLC may, in its sole discretion and at any time from time to time before the termination of the 180-day period, release all or any portion of the securities subject to the Lock-up Agreement.
The foregoing description of the Lock-up Agreement does not purport to be complete and is qualified in its entirety by reference to such, which is filed as an exhibit and incorporated herein by reference.
Investors Rights Agreement
On February 1, 2021, AI Day1 entered into an amended and restated investors rights agreement (the Investors Rights Agreement), by and among Day One and certain of its stockholders. Pursuant to the terms of the Investors Rights Agreement, beginning 180 days after the completion of the Issuers initial public offering, holders of collectively at least 60% of the Common Stock issued or issuable upon conversion of the Issuers redeemable convertible preferred stock, which shall include at least one holder of solely the Issuers Series B redeemable convertible preferred stock (the Required Holders), have the right to require the Issuer to file a registration statement on Form S-1 to register an underwritten offering at least 40% of the Common Stock with an anticipated aggregate offering price, net of selling expenses, of at least $10 million, subject to customary terms and conditions. Beginning 180 days after the completion of the Issuers initial public offering, the Required Holders have the right to require the Issuer to file a registration statement on Form S-3 to register outstanding Common Stock of the Required Holders with an anticipated aggregate offering price, net of selling expenses, of at least $2.5 million, subject to customary terms and conditions. Pursuant to the Investors Rights Agreement, AI Day1 and its permitted transferees have customary piggyback registration rights, subject to customary terms and conditions.
The foregoing description of the Investors Rights Agreement does not purport to be complete and is qualified in its entirety by reference to such, which is filed as an exhibit and incorporated herein by reference.
Joint Filing Agreement
A Joint Filing Agreement, dated June 9, 2021, by and among the Reporting Persons has been executed by the Reporting Persons, a copy of which is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
Item 7 Materials to Be Filed as Exhibits
Exhibit | Description | |
99.1 | Lock-up Agreement, dated as of March 18, 2021, by and between AI Day1 LLC and J.P. Morgan Securities LLC. | |
99.2 | Amended and Restated Investors Rights Agreement, dated as of February 1, 2021, by and among Day One Biopharmaceuticals Holding Company, LLC and certain of its stockholders (incorporated herein by reference to Exhibit 4.2 to the Issuers Amendment No. 2 to the Form S-1 filed with the Securities and Exchange Commission on May 26, 2021). | |
99.3 | Joint Filing Agreement, dated as of June 9, 2021. | |
99.4 | Limited Power of Attorney. |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: June 9, 2021
AI DAY1 LLC | By: Access Industries Management, LLC, its Manager | |||||
/s/ Alejandro Moreno | ||||||
Name: Alejandro Moreno Title: Executive Vice President | ||||||
ACCESS INDUSTRIES HOLDINGS LLC | By: Access Industries Management, LLC, its Manager | |||||
/s/ Alejandro Moreno | ||||||
Name: Alejandro Moreno Title: Executive Vice President | ||||||
ACCESS INDUSTRIES MANAGEMENT, LLC | /s/ Alejandro Moreno | |||||
Name: Alejandro Moreno Title: Executive Vice President | ||||||
/s/ * | ||||||
Name: Leonard Blavatnik |
* The undersigned, by signing his name hereto, executes this Schedule 13D pursuant to the Limited Power of Attorney executed on behalf of Mr. Blavatnik and filed herewith.
By: | /s/ Alejandro Moreno | |
Name: Alejandro Moreno | ||
Attorney-in-Fact |
Exhibit 99.1
LOCK-UP AGREEMENT
March 18, 2021
J.P. MORGAN SECURITIES LLC
COWEN AND COMPANY, LLC
PIPER SANDLER & CO.
As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
c/o Cowen and Company, LLC
599 Lexington Avenue
New York, NY 10022
c/o Piper Sandler & Co.
345 Park Avenue
New York, NY 10154
Re: | Day One Biopharmaceuticals Holding Company LLC Initial Public Offering Ladies and Gentlemen: |
The undersigned, currently an owner of membership interests in Day One Biopharmaceuticals Holding Company LLC, who will become an owner of equity interests in [Day One Biopharmaceuticals], Inc., as the successor entity thereto (together with Day One Biopharmaceuticals Holding LLC, the Company), understands that you, as representatives (the Representatives), of the several Underwriters, propose to enter into an underwriting agreement (the Underwriting Agreement) with the Company, providing for the initial public offering (the Public Offering) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the Underwriters), of common stock (the Common Stock), of the Company (the Securities). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters agreement to purchase and make the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan Securities LLC on behalf of the several Underwriters, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period beginning on the date of this letter agreement (this Letter Agreement) and ending at the close of business 180 days after the date of the final prospectus relating to the Public Offering (the Prospectus) (such period, the Restricted Period), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the Lock-Up Securities), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise, (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. The undersigned further confirms that it has furnished the Representatives with the details of any transaction the undersigned, or any of its affiliates, is a party to as of the date hereof, which transaction would have been restricted by this Letter Agreement if it had been entered into by the undersigned during the Restricted Period.
Notwithstanding the foregoing, the undersigned may:
(a) transfer or dispose of the undersigneds Lock-Up Securities:
(i) as a bona fide gift or gifts, or for bona fide estate planning purposes,
(ii) by will or intestacy,
(iii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this Letter Agreement, immediate family shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),
(iv) to a corporation, partnership, limited liability company or other entity of which the undersigned or the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests,
(v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above,
(vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned
(including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members, partners, shareholders or other equityholders of the undersigned,
(vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, or related court order,
(viii) to the Company (A) from an employee of the Company upon death, disability or termination of employment, in each case, of such employee, or (B) pursuant to a right of first refusal that the Company has with respect to transfers of such Common Stock or other securities, provided that such right is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
(ix) as part of a sale of the undersigneds Lock-Up Securities acquired in the Public Offering or in open market transactions after the closing date for the Public Offering,
(x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of net or cashless exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement (other than such shares as are transferred or surrendered to the Company in connection with such vesting, settlement or exercise event) shall be subject to the terms of this Letter Agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided no public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common
Stock shall be required or shall be voluntarily made during the Restricted Period within 30 days after the date of the Prospectus, and after such 30th day, if the undersigned is required to file a report reporting a reduction in beneficial ownership of shares of Common Stock during the Restricted Period, the undersigned shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause and that the shares of Common Stock received upon exercise of the stock option or warrant or restricted stock unit or other right or vesting event are subject to this agreement, and no public filing, report or announcement shall be voluntarily made, or
(xi) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Companys capital stock involving a Change of Control (as defined below) of the Company (for purposes hereof, Change of Control shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold more than 75% of the outstanding voting securities of the Company (or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigneds Lock-Up Securities shall remain subject to the provisions of this Letter Agreement;
provided that (A) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv) and (v), such transfer shall not involve a disposition for value, (B) in the case of any transfer or distribution pursuant to clauses (a)(i), (ii), (iii), (iv), (v), (vi) and (vii), each donee, devisee, transferee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this Letter Agreement, (C) in the case of any transfer or distribution pursuant to clause (a) (i), (ii), (iii), (iv), (v) and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange Act of 1934, as amended (the Exchange Act), or other public announcement reporting a reduction in beneficial ownership of shares of Common Stock shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above, the filing of a required Schedule 13F, 13G or 13D or, in the case of a clause (vi) only, a required filing under Section 16 of the Exchange Act, provided that any filing does not report an overall reduction in beneficial ownership of the Lock-up Securities among the transferor and transferee(s) and shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described clause (vi)) and (D) in the case of any transfer or distribution pursuant to clauses (a)(vii), (viii) and (ix), it shall be a condition to such transfer that no public filing, report or announcement shall be voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer;
(b) exercise outstanding options, settle restricted stock units or other equity awards or exercise outstanding warrants pursuant to plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided that any Lockup Securities received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement;
(c) convert outstanding preferred stock, warrants to acquire preferred stock or convertible securities into shares of Common Stock or warrants to acquire shares of Common Stock; provided that any such shares of Common Stock or warrants received upon such conversion shall be subject to the terms of this Letter Agreement;
(d) convert or transfer membership interests in Day One Biopharmaceuticals Holding Company, LLC for equity interests in [Day One Biopharmaceuticals, Inc.] in connection with the consummation of the Public Offering and disclosed in the Prospectus, it being understood that any such shares of Common Stock or other securities of [Day One Biopharmaceuticals, Inc] received by the undersigned upon such transfer shall be subject to the restrictions on transfer set forth in this Lock-Up Agreement; and
(e) establish trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Lock-Up Securities; provided that (1) such plans do not provide for the transfer of Lock-Up Securities during the Restricted Period and (2) no filing by any party under the Exchange Act or other public announcement shall be required or made voluntarily in connection with such trading plan during the Restricted Period in contravention of this Lock-Up Agreement.
If the undersigned is not a natural person, the undersigned represents and warrants that no single natural person, entity or group (within the meaning of Section 13(d)(3) of the Exchange Act other than a natural person, entity or group (as described above) that has executed a Letter Agreement in substantially the same form as this Letter Agreement, beneficially owns, directly or indirectly, 50% or more of the common equity interests, or 50% or more of the voting power, in the undersigned.
If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the Public Offering.
If the undersigned is an officer or director of the Company, (i) J.P. Morgan Securities LLC on behalf of the several Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Lock-Up Securities, J.P. Morgan Securities LLC on behalf of the several Underwriters will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by J.P. Morgan Securities LLC on behalf of the several Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such announcement. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration or that is to an immediate family member as defined in FINRA Rule 5130(i)(5) and (b) the transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
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 Public Offering of the Securities 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 Public 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.
The undersigned understands that, (i) if the Underwriting Agreement does not become effective by September 30, 2021 (provided, however, that the undersigned agrees that this Letter Agreement shall be automatically extended by three months if the Company provides written notice to the undersigned that the Company is still pursuing the Public Offering contemplated by the Underwriting Agreement), (ii) if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, (iii) the Company notifies the Representatives in writing prior to the execution of the Underwriting Agreement that it does not intend to proceed with the Public Offering, or (iv) prior to payment for the Securities, the registration statement filed with the Securities and Exchange Commission in connection with the Public Offering is withdrawn prior to the execution of the Underwriting Agreement, the Letter Agreement shall automatically terminate and be of no further force or effect and undersigned shall be released from all obligations under this Letter Agreement. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
The undersigned hereby consents to receipt of this Letter Agreement in electronic form and understands and agrees that this Letter Agreement may be signed electronically. In the event that any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent to sign this Letter Agreement, such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original. Execution and delivery of this Letter Agreement by facsimile transmission, electronic mail or other electronic transmission is legal, valid and binding for all purposes.
[Signature page follows]
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Very truly yours, | ||||
AI DAY1 LLC | ||||
By: Access Industries Management, LLC, | ||||
Its Manager | ||||
By: | /s/ Suzette Del Giudice | |||
Name: | Suzette Del Giudice | |||
Title: | Executive Vice President | |||
By: | /s/ Alejandro Moreno | |||
Name: | Alejandro Moreno | |||
Title: | Executive Vice President |
[Signature page to Lock-up Agreement]
Exhibit 99.3
Joint Filing Agreement
The undersigned hereby agree that they are filing this statement jointly pursuant to Rule 13d-1(k)(1). Each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.
In accordance with Rule 13d-1(k)(1) promulgated under the Securities and Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each other on behalf of each of them of such a statement on Schedule 13D (and any amendments thereto) with respect to the Common Stock owned by each of them, of Day One Biopharmaceuticals, Inc., a corporation incorporated under the laws of the State of Delaware. This Joint Filing Agreement shall be included as an exhibit to such Schedule 13D.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the 9th day of June, 2021.
AI DAY1 LLC | By: Access Industries Management, LLC, its Manager
/s/ Alejandro Moreno Name: Alejandro Moreno Title: Executive Vice President | |
ACCESS INDUSTRIES HOLDINGS LLC | By: Access Industries Management, LLC, its Manager
/s/ Alejandro Moreno Name: Alejandro Moreno Title: Executive Vice President | |
ACCESS INDUSTRIES MANAGEMENT, LLC | /s/ Alejandro Moreno Name: Alejandro Moreno Title: Executive Vice President | |
/s/ *_______________________ Name: Len Blavatnik |
* | The undersigned, by signing his name hereto, executes this Joint Filing Agreement pursuant to the Limited Power of Attorney executed on behalf of Mr. Blavatnik and filed herewith. |
By: | /s/ Alejandro Moreno | |
Name: Alejandro Moreno | ||
Attorney-in-Fact |
Exhibit 99.4
LIMITED POWER OF ATTORNEY
Know all by these presents, that the undersigned hereby constitutes and appoints Lincoln Benet and Alejandro Moreno, and each of them individually, the undersigneds true and lawful attorney-in-fact to:
| execute for and on behalf of the undersigned, in the undersigneds capacity as a beneficial owner of Day One Biopharmaceuticals, Inc. (the Company), (i) Forms 3, 4 and 5 and any other forms required to be filed in accordance with Section 16(a) of the Securities Exchange Act of 1934 (the Exchange Act) and the rules thereunder (a Section 16 Form), (ii) all forms and schedules in accordance with Section 13(d) of the Exchange Act and the rules thereunder, including all amendments thereto (a Section 13 Schedule), (iii) a Form ID Application, Passphrase Update Application and/or request to convert from paper only to electronic filer with the US Securities and Exchange Commission and to obtain access codes to file on EDGAR and any other forms required to be filed or submitted in accordance with Regulation S-T promulgated by the United States Securities and Exchange Commission (or any successor provision) in order to file a Section 13 Schedule or a Section 16 Form electronically (a Form ID, and, together with a Section 13 Schedule and Section 16 Form, the Forms and Schedules) and (iv) any Joint Filing Agreement or similar agreement with respect to the filing of any of the Forms or Schedules in (i) through (iii) above; |
| do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Forms and Schedules, complete and execute any amendment or amendments thereto, and timely file such Forms and Schedules with the U.S. Securities and Exchange Commission and any stock exchange or similar authority; and |
| take any other action of any type whatsoever in connection with the foregoing which, in the opinion of each such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by each such attorney-in-fact on behalf of the undersigned pursuant to this Limited Power of Attorney shall be in such form and shall contain such terms and conditions as he may approve in his discretion. |
The undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that each such attorney-in-fact, or his substitute or substitutes, shall lawfully do or cause to be done by virtue of this Limited Power of Attorney and the rights and powers herein granted.
The undersigned acknowledges that each such attorney-in-fact is serving in such capacity at the request of the undersigned, and is not assuming, nor is the Company assuming, any of the undersigneds responsibilities to comply with Section 13 or Section 16 of the Exchange Act.
The Limited Power of Attorney shall remain in full force and effect until the undersigned is no longer required to file any Forms and Schedules with respect to the undersigneds holdings of and transactions in securities issued by the Company, unless earlier revoked by the undersigned in a signed writing delivered to each such attorney-in-fact.
From and after the date hereof, any Limited Power of Attorney previously granted by the undersigned concerning the subject matter hereof is hereby revoked.
IN WITNESS WHEREOF, the undersigned has executed this Limited Power of Attorney as of May 24, 2021.
LEONARD BLAVATNIK |
/s/ Leonard Blavatnik |