0000895813-17-000069.txt : 20171006 0000895813-17-000069.hdr.sgml : 20171006 20171006162214 ACCESSION NUMBER: 0000895813-17-000069 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20171006 DATE AS OF CHANGE: 20171006 GROUP MEMBERS: CHAD A. MIRKIN, C. SHAD THAXTON SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EXICURE, INC. CENTRAL INDEX KEY: 0001698530 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 815333008 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-90023 FILM NUMBER: 171127458 BUSINESS ADDRESS: STREET 1: 8045 LAMON AVE, SUITE 410 CITY: SKOKIE STATE: IL ZIP: 60077 BUSINESS PHONE: 847-673-1700 MAIL ADDRESS: STREET 1: 8045 LAMON AVE, SUITE 410 CITY: SKOKIE STATE: IL ZIP: 60077 FORMER COMPANY: FORMER CONFORMED NAME: Max-1 Acquisition Corp DATE OF NAME CHANGE: 20170221 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AURASENSE LLC CENTRAL INDEX KEY: 0001476816 IRS NUMBER: 264171829 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 8045 LAMON AVENUE STREET 2: SUITE 410 CITY: SKOKIE STATE: IL ZIP: 60077 BUSINESS PHONE: 8473315765 MAIL ADDRESS: STREET 1: 8045 LAMON AVENUE STREET 2: SUITE 410 CITY: SKOKIE STATE: IL ZIP: 60077 SC 13D 1 x13d_10052017.htm

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934 (Amendment No. ___)*

 

Exicure, Inc.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

30205M 101

(CUSIP Number)

Chad A. Mirkin

c/o AuraSense, LLC

8045 Lamon Avenue, Suite 410

Skokie, Illinois 60077

(847) 673-1700

 

 

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

September 26, 2017

(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 Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box [ ].

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 
 

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(Continued on following pages)

 

 

 

2 
 

 

 

CUSIP No. 30205M 101

 

 

13D

 

Page 3 of 11 Pages

 

1 NAMES OF REPORTING PERSONS
  AuraSense, 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)

OO

5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [  ]
6

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 Shares

8

SHARED VOTING POWER

 

11,267,824 Shares

9

SOLE DISPOSITIVE POWER

 

0 Shares

10

SHARED DISPOSITIVE POWER

 

11,267,824 Shares

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

11,267,824 Shares

12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [  ]
13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

31.7%*

14

TYPE OF REPORTING PERSON (See Instructions)

PN

       

* This percentage is based upon 35,513,987 outstanding shares of Common Stock reported in the Issuer’s Form 8-K filed with the Securities and Exchange Commission on October 2, 2017.

3 
 

 

 

CUSIP No. 30205M 101

 

 

13D

 

Page 4 of 11 Pages

 

 

1 NAMES OF REPORTING PERSONS
  Chad A. Mirkin, Ph.D.
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)

OO

5 CHECK BOX 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

 

112,500 Shares

8

SHARED VOTING POWER

 

11,267,824 Shares

9

SOLE DISPOSITIVE POWER

 

112,500 Shares

10

SHARED DISPOSITIVE POWER

 

11,267,824 Shares

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

11,380,324 Shares*

12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [  ]
13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

32.0%**

14

TYPE OF REPORTING PERSON (See Instructions)

IN

       

* Dr. Mirkin disclaims beneficial ownership of the 11,267,824 Shares held by AuraSense, LLC, except to the extent of his pecuniary interest therein.

** This percentage is based upon 35,513,987 outstanding shares of Common Stock reported in the Issuer’s Form 8-K filed with the Securities and Exchange Commission on October 2, 2017.

4 
 

 

 

CUSIP No. 30205M 101

 

 

13D

 

Page 5 of 11 Pages

 

1 NAMES OF REPORTING PERSONS
  Colby Shad Thaxton, M.D., Ph.D.
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)

OO

5 CHECK BOX 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

 

83,264 Shares

8

SHARED VOTING POWER

 

11,267,824 Shares

9

SOLE DISPOSITIVE POWER

 

83,264 Shares

10

SHARED DISPOSITIVE POWER

 

11,267,824 Shares

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

11,351,088 Shares*

12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [  ]
13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

31.9%**

14

TYPE OF REPORTING PERSON (See Instructions)

OO

       

* Dr. Thaxton disclaims beneficial ownership of the 11,267,824 Shares held by AuraSense, LLC, except to the extent of his pecuniary interest therein.

** This percentage is based upon 35,513,987 outstanding shares of Common Stock reported in the Issuer’s Form 8-K filed with the Securities and Exchange Commission on October 2, 2017.

5 
 

 

Item 1. Security and Issuer.

This statement relates to the common stock, par value $0.0001 per share (the “Common Stock”), of Exicure, Inc., a Delaware corporation formerly known as Max-1 Acquisition Corporation (the “Issuer”), whose principal executive offices are located at 8045 Lamon Avenue, Suite 410, Skokie, Illinois 60077.

Item 2. Identity and Background.
  a. This statement is filed by AuraSense, LLC, a Delaware limited liability company (“AuraSense”), and the members of its Board of Managers, Chad A. Mirkin, Ph.D., and Colby Shad Thaxton, M.D., Ph.D.
    Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons”.  Each of the Reporting Persons is party to that certain Joint Filing Agreement, as further described in Item 6 and attached hereto as Exhibit 1.  Accordingly, the Reporting Persons are hereby filing this joint Schedule 13D.
  b. The business address of each of the Reporting Persons is 8045 Lamon Avenue, Suite 410, Skokie, Illinois 60077.
  c. The primary purpose of AuraSense is engaging in any lawful act or activity for which limited liability companies may be organized under the Delaware Limited Liability Company Act.
    Dr. Mirkin’s principal occupation is Director of the International Institute for Nanotechnology at Northwestern University, as well as the George B. Rathmann Professor of Chemistry, Professor of Chemical and Biological Engineering, Professor of Biomedical Engineering, Professor of Materials Science and Engineering, and Professor of Medicine at Northwestern University.
    Dr. Thaxton’s principal occupation is Associate Professor in the Department of Urology at Northwestern University, Feinberg School of Medicine.
  d. During the last five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
  e. During the last five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order finding any violation with respect to federal or state securities laws or enjoining future violations of, or prohibiting or mandating activities subject to, such laws.  
  f. AuraSense is a Delaware limited liability company.
    Each of Dr. Mirkin and Dr. Thaxton is a citizen of the United States of America.

6 
 

Item 3. Source and Amount of Funds or Other Consideration.

The shares of Common Stock reported on this Schedule 13D were acquired in exchange for shares of preferred stock and options to purchase common stock of Exicure, Inc., a Delaware corporation (“Exicure OpCo”) pursuant to a merger (the “Merger”) effected pursuant to an Agreement and Plan of Merger and Reorganization, dated September 26, 2017 (the “Merger Agreement”), by and among the Issuer (then operating under the name Max-1 Acquisition Corporation), Max-1 Acquisition Sub, Inc., a wholly owned Delaware subsidiary of the Issuer, and Exicure OpCo.

Item 4. Purpose of Transaction.

The purpose of the Merger was to allow the former stockholders of Exicure OpCo to receive shares of a publicly traded company. In connection with the Merger, shares of preferred stock and common stock of Exicure OpCo issued and outstanding immediately prior to the closing of the Merger were exchanged for shares of the Issuer’s Common Stock, and options to purchase shares of Exicure OpCo’s common stock were assumed by the Issuer and exchanged for options to purchase shares of the Issuer’s Common Stock. Also in connection with the Merger, Drs. Mirkin and Thaxton joined the board of directors of the Issuer.

Following the Merger, the Issuer closed an offering of shares of its Common Stock. The Reporting Persons did not purchase any shares in the offering.

The Reporting Persons may purchase additional shares of Common Stock from time to time depending upon price, market conditions, availability of funds, evaluation of other investment opportunities, and other factors. Although the Reporting Persons have no present intention to sell any shares of Common Stock, any of them could determine from time to time, based upon the same factors listed above for purchases, to sell some or all of the shares held by it.

Except as set forth above, none of the Reporting Persons has any plan or proposal which relates to any of the following matters:

(a)       The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;

(b)       An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;

(c)       A sale or transfer of a material amount of assets of the Issuer or of any of its subsidiaries;

(d)       Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;

(e)       Any material change in the present capitalization or dividend policy of the Issuer;

(f)       Any other material change in the Issuer’s business or corporate structure;

7 
 

(g)        Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the issuer by any person;

(h)        Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;

(i)       A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or

(j)       Any action similar to any of those enumerated above.

Item 5. Interest in Securities of Issuer.
  (a) AuraSense’s total beneficial ownership amounts to 11,267,824 shares of Common Stock, constituting 31.7% of the outstanding shares of Common Stock of the Issuer (the “AuraSense Shares”).
    Dr. Mirkin’s total beneficial ownership amounts to 11,380,324 shares of Common Stock, constituting 32.0% of the outstanding shares of Common Stock of the Issuer, consisting of (i) 22,567 shares of Common Stock held by Dr. Mirkin, (ii) 6,669 shares of Common Stock held by the Chad A. Mirkin Living Trust over which Dr. Mirkin serves as Trustee, (iii) 83,264 shares of Common Stock issuable to Dr. Mirkin upon exercise of options exercisable within 60 days of September 26, 2017, and (iv) the 11,267,824 AuraSense Shares, which Dr. Mirkin may be deemed to share voting and dispositive power over as a member of the Board of Managers of AuraSense.  Dr. Mirkin disclaims beneficial ownership of the AuraSense Shares, except to the extent of his pecuniary interest therein.
    Dr. Thaxton’s total beneficial ownership amounts to 11,351,088 shares of Common Stock, constituting 31.9% of the Issuer, consisting of (i) 83,264 shares of Common Stock issuable to Dr. Thaxton upon exercise of options exercisable within 60 days of September 26, 2017, and (ii) the 11,267,824 AuraSense Shares, which Dr. Thaxton may be deemed to share voting and dispositive power over as a member of the Board of Managers of AuraSense.  Dr. Thaxton disclaims beneficial ownership of the AuraSense Shares, except to the extent of his pecuniary interest therein.
  (b) AuraSense holds shared investment and shared voting power over the 11,267,824 AuraSense Shares.  
    Dr. Mirkin holds sole investment and sole voting power over the (i) 22,567 shares of Common Stock held by Dr. Mirkin, (ii) 83,264 shares of Common Stock issuable to Dr. Mirkin upon exercise of options exercisable within 60 days of September 26, 2017, and (iii) 6,669 shares of Common Stock held by the Chad A. Mirkin Living Trust over which Dr. Mirkin serves as Trustee.  By reason of his status as a member of the Board of Managers of AuraSense, Dr. Mirkin may be deemed to hold shared investment and shared voting power over the 11,267,824 AuraSense Shares.

8 
 

    Dr. Thaxton holds sole investment and sole voting power of 83,264 shares of Common Stock issuable to Dr. Thaxton upon exercise of options exercisable within 60 days of September 26, 2017.  By reason of his status as a member of the Board of Managers of AuraSense, Dr. Thaxton may be deemed to hold shared investment and shared voting power over the 11,267,824 AuraSense Shares.
  (c) During the last sixty days, none of the Reporting Persons has effected any transactions in the Common Stock of the Issuer except as disclosed in this Schedule 13D.
  (d) Other than as described in this Schedule 13D, to the knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock beneficially owned by the Reporting Persons.
  (e) Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The Reporting Persons have entered into a Joint Filing Agreement pursuant to which, among other things, the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer.

Reference is made to the Merger Agreement defined in Item 3 above and attached as Exhibit 2 hereto.

In connection with the closing of the Merger, each of the Reporting Persons entered into a Lock-Up Agreement, substantially in the form attached hereto as Exhibit 3, whereby, subject to certain customary exceptions, they are restricted for a period of nine months after the completion of the Merger from certain sales or dispositions (including any pledge) of Common Stock held by (or issuable to) them.

The Reporting Persons also entered into a Registration Rights Agreement with the Issuer and certain other persons named therein, substantially in the form attached hereto as Exhibit 4, pursuant to which the Issuer has agreed to promptly file a registration statement with the Securities and Exchange Commission covering, among other shares of Common Stock, the shares of Common Stock issued to the Reporting Persons in the Merger, and to maintain the effectiveness of the registration statement for a period of five years or until (i) the shares registered thereunder have been sold in accordance with the registration statement or (ii) the shares registered thereunder have been sold in accordance with Rule 144 promulgated under the Securities Act of 1933.

Each of the Joint Filing Agreement, Merger Agreement, Form of Lock-Up Agreement and Form of Registration Rights Agreement, which are attached as Exhibits 1, 2, 3 and 4 hereto, respectively, are incorporated by reference herein.

9 
 

 

Item 7. Materials to be Filed as Exhibits.

 

Exhibit No.   Description
1   Joint Filing Agreement, dated October 6, 2017, among the Reporting Persons.*
2   Agreement and Plan of Merger, dated September 26, 2017, by and among the Issuer (then named Max-1 Acquisition Corporation), Max-1 Acquisition Sub, Inc. and Exicure OpCo (incorporated herein by reference to Exhibit 2.1 to the Issuer’s Current Report on Form 8-K filed October 2, 2017).
3   Form of Lock-Up Agreement.*
4   Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 4.2 to the Issuer’s Current Report on Form 8-K filed October 2, 2017).

*Attached hereto.

10 
 

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.

Dated: October 6, 2017

 

AuraSEnse, LLC

By: /s/ Chad A. Mirkin

Chad A. Mirkin

President

 

 

By: /s/ Chad A. Mirkin

CHAD A. MIRKIN

 

 

 

By: /s/ C. Shad Thaxton

C. SHAD THAXTON

 

 

 

 

 

 

 

 

 

11

 

 

 

EX-1 2 xex_1.htm JOINT FILING AGREEMENT

Exhibit 1

Joint Filing Agreement

In accordance with Rule 13d-1(k) of the Securities Exchange Act of 1934, as amended, the undersigned acknowledge and agree that the foregoing Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments thereto may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements.

The undersigned further acknowledge that each shall be responsible for the timely filing of such amendments and for the completeness and accuracy of the information concerning such person contained herein, but shall not be responsible for the completeness and accuracy of the information concerning the other signatory, except to the extent that such person knows or has reason to believe that such information is inaccurate.

Dated: October 6, 2017

 

AuraSEnse, LLC

By: /s/ Chad A. Mirkin

Chad A. Mirkin

President

 

 

By: /s/ Chad A. Mirkin

CHAD A. MIRKIN

 

 

 

By: /s/ C. Shad Thaxton

C. SHAD THAXTON

 

EX-3 3 xex_3.htm LOCK-UP AGREEMENT

Exhibit 3

[FORM OF]

Lock-Up Agreement

 

[Stockholder]

[Address]

[Address]

 

Ladies and Gentlemen:

The undersigned understands that Max-1 Acquisition Corporation (to be renamed “Exicure, Inc.”), a Delaware corporation (the “Company”), has entered into an Agreement and Plan of Merger and Reorganization, dated as of September 26, 2017 (as the same may be amended from time to time, the “Merger Agreement”) with Max-1 Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Company, and Exicure, Inc., a Delaware corporation. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.

As a material inducement to each of the Parties to enter into the Merger Agreement and to consummate the Contemplated Transactions, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees that, during the period commencing upon the Closing and ending on the date that is nine (9) months after the Closing Date (the “Lock-Up Period”), the undersigned will not, directly or indirectly:

  (i) 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 for the sale of, or otherwise dispose of or transfer any shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”), or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or, except as set forth in the Registration Rights Agreement, by and among the Company, the Purchasers, the Brokers, the persons or entities identified on Schedule 2 thereto holding Merger Shares and the persons or entities identified on Schedule 3 thereto holding Registrable Pre-Merger Shares (capitalized terms used but not otherwise defined in this Section (i) herein shall have the meanings ascribed to them in Section 1 of the Registration Rights Agreement), exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or

 

  (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise.

Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities, provided, in each case, that (1) the Company receives a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers (other than a filing on a Form 5 made after the expiration of the Lock-Up Period):

  (i) as a bona fide gift or gifts;
  (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin);
  (iii) as a distribution or other transfer by a partnership to its partners or former partners or by a limited liability company to its members or retired members or by a corporation to its stockholders or former stockholders or to any wholly-owned subsidiary of such corporation;
  (iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned;
  (v) pursuant to a qualified domestic relations order or in connection with a divorce settlement;
  (vi) by will or intestate succession upon the death of the undersigned; or
  (vii) to the Company in satisfaction of any tax withholding obligation.

Furthermore, no provision in this lock-up agreement shall be deemed to restrict or prohibit (1) the transfer of the undersigned’s Lock-Up Securities to the Company in connection with the termination of the undersigned’s services to the Company, provided that any filing under Section 16 of the Exchange Act made in connection with such transfer shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause (1); (2) the exercise or exchange by the undersigned of any option or warrant to acquire any shares of Common Stock or options to purchase shares of Common Stock, in each case for cash or on a “cashless” or “net exercise” basis, pursuant to any stock option, stock bonus or other stock plan or arrangement; provided, however, that the underlying shares of Common Stock shall continue to be subject to the restrictions on transfer set forth in this lock-up agreement and that any filing under Section 16 of  the Exchange  Act made in connection with such exercise or exchange shall  clearly indicate in the  footnotes

 2 

 

thereto that (a) the filing relates to the circumstances described in this clause (2) and (b) no shares were sold by the reporting person; (3) the transfer of Lock-Up Securities upon the completion of a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a change of control of the Company; provided, however, that in the event that such tender offer, merger, consolidation or other such transaction is not completed, such securities held by the undersigned shall remain subject to the restrictions on transfer set forth in this lock-up agreement; (4) the conversion of outstanding preferred stock of the Company into shares of Common Stock, provided that any such shares received upon such conversion shall be subject to the restrictions on transfer set forth in this lock-up agreement; (5) transfers by the undersigned of shares of Common Stock purchased by the undersigned in the Private Placement Offering; and (6) transfers by the undersigned of shares of Common Stock purchased by the undersigned on the open market following the Closing Date.

Notwithstanding anything herein to the contrary, nothing herein shall prevent the undersigned from establishing a 10b5-1 trading plan that complies with Rule 10b5-1 under the Exchange Act (“10b5-1 Trading Plan”) or from amending an existing 10b5-1 Trading Plan so long as there are no sales of Lock-Up Securities under any such 10b5-1 Trading Plan during the Lock-Up Period; and provided that, the establishment of a 10b5-1 Trading Plan or the amendment of a 10b5-1 Trading Plan shall only be permitted if (i) the establishment or amendment of such plan is not required to be reported in any public report or filing with the Securities and Exchange Commission, or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding the establishment or amendment of such plan.

The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions. Any attempted transfer in violation of this lock-up agreement will be of no effect and null and void, regardless of whether the purported transferee has any actual or constructive knowledge of the transfer restrictions set forth in this lock-up agreement, and will not be recorded on the share register of the Company. In furtherance of the foregoing, the undersigned agrees that 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 lock-up agreement. The Company may cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents, ledgers or instruments evidencing the undersigned’s ownership of Common Stock:

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY ONLY BE TRANSFERRED IN COMPLIANCE WITH A LOCK-UP AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this lock-up 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.

 3 

 

The undersigned understands that if the Merger Agreement is terminated for any reason, or if the Merger is not consummated by October 31, 2017, the undersigned shall be released from all obligations under this lock-up agreement. The undersigned understands that the Company is proceeding with the Contemplated Transactions in reliance upon this lock-up agreement.

This lock-up agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws principles thereof.

Any and all remedies herein expressly conferred upon the Company will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity, and the exercise by the Company of any one remedy will not preclude the exercise of any other remedy. The undersigned agrees that irreparable damage would occur to the Company in the event that any provision of this lock-up agreement were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent breaches of this lock-up agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which the Company is entitled at law or in equity, and the undersigned waives any bond, surety or other security that might be required of the Company with respect thereto.

This lock-up agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed lock-up agreement (in counterparts or otherwise) by the Company and the undersigned by facsimile or electronic transmission in .pdf format shall be sufficient to bind such parties to the terms and conditions of this lock-up agreement.

[SIGNATURE PAGE FOLLOWS]

 4 

 

Very truly yours,

  Print Name of Stockholder:                                                                       
   

Signature (for individuals):

___________________________________________

 

Signature (for entities):

   

By: ________________________________________

Name:                                                                    

Title:                                                                       

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Lock-Up Agreement]

  

 

Accepted and Agreed by
Max-1 Acquisition Corporation (to be renamed Exicure, Inc.):

 

By_______________________________

Name:

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Lock-Up Agreement]