Exhibit 99.5
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this “Agreement”) is entered into as of July 31, 2022 by and between Stealth BioTherapeutics Corp, an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”) and certain shareholders of the Company listed on Schedule A hereto (each, a “Shareholder” and collectively, the “Shareholders”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, Stealth Parent Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands, Stealth Merger Sub Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”) and the Company have, concurrently with the execution of this Agreement, entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), which provides for, among other things, the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date of this Agreement, each Shareholder is the Beneficial Owner (as defined below) of the Existing Shares (as defined below) set forth opposite such Shareholder’s name on Schedule A hereto;
WHEREAS, as a condition and inducement to the willingness of the Company to enter into the Merger Agreement and pursue the Merger, the Company has required that each Shareholder agree, and each Shareholder has agreed, upon the terms and subject to the conditions set forth herein, to enter into this Agreement and abide by the covenants and obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
DEFINED TERMS
VOTING; RESTRICTIONS ON TRANSFERS
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SHAREHOLDERS
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
ADDITIONAL COVENANTS
TERMINATION
This Agreement, and the obligations of the parties hereunder (including, without limitation, Article II hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing and (b) the date of termination of the Merger Agreement in accordance with its terms; provided, that this Article VI and Article VII shall survive any termination of this
Agreement. Nothing in this Article VI shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.
MISCELLANEOUS
c/o Intertrust Corporate Services (Cayman) Limited
One Nexus Way, Camana Bay
Grand Cayman KY1-9005 Cayman Islands
with a copy to (which alone shall not constitute notice):
Wilmer Hale LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Attention: Rosemary Reilly
Email: Rosemary.Reilly@wilmerhale.com
[Signature Pages to follow]
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
For and on behalf of
MORNINGSIDE VENTURE (I) INVESTMENTS LIMITED
By: /s/ Jill Marie Franklin
Name: Jill Marie Franklin
Title: Authorized Signature
By: /s/ Frances Anne Elizabeth Richard
Name: Frances Anne Elizabeth Richard
Title: Authorized Signature
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
For and on behalf of
Season Pioneer Investments Limited
By: /s/ Jill Marie Franklin
Name: Jill Marie Franklin
Title: Authorized Signature
By: /s/ Frances Anne Elizabeth Richard
Name: Frances Anne Elizabeth Richard
Title: Authorized Signature
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
For and on behalf of
Equal Talent Investments Limited
By: /s/ Jill Marie Franklin
Name: Jill Marie Franklin
Title: Authorized Signature
By: /s/ Frances Anne Elizabeth Richard
Name: Frances Anne Elizabeth Richard
Title: Authorized Signature
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.
Stealth BioTherapeutics Corp
By: /s/ Irene P. McCarthy
Name: Irene P. McCarthy
Title: Chief Executive Officer
SCHEDULE A
Shareholder |
| Address |
| Existing Shares |
| Other |
|
Morningside Venture (I) Investments Limited |
| c/o Springfield Financial Advisory Limited 2-20 Paterson Street Causeway Bay, Hong Kong Attention: Alice Li, Makim Ma Email: alice.li@springfld.com, MakimMa@springfld.com
With a copy to: 100 Northern Avenue Boston, Massachusetts 02210 Attention: Joshua M. Zachariah, Gregg L. Katz and Jean A. Lee Email: jzachariah@goodwinlaw.com, gkatz@goodwinlaw.com, jeanlee@goodwinlaw.com |
| Ordinary Shares: 514,672,111.334 ADSs: 115,600* |
| Company Options: 600,000 Company RSUs: None Company Warrants:224,993,157 |
|
Season Pioneer Investments Limited |
| c/o Springfield Financial Advisory Limited 2-20 Paterson Street Causeway Bay, Hong Kong Attention: Alice Li, Makim Ma Email: alice.li@springfld.com, MakimMa@springfld.com
With a copy to: 100 Northern Avenue Boston, Massachusetts 02210 Attention: Joshua M. Zachariah, Gregg L. Katz and Jean A. Lee Email: jzachariah@goodwinlaw.com, gkatz@goodwinlaw.com, jeanlee@goodwinlaw.com |
| Ordinary Shares: None ADSs: 3,255,523 |
| Company Options: None Company RSUs: None Company Warrants: None |
|
[Schedule A to Voting and Support Agreement]
Equal Talent Investments Limited |
| c/o Springfield Financial Advisory Limited 2-20 Paterson Street Causeway Bay, Hong Kong Attention: Alice Li, Makim Ma Email: alice.li@springfld.com, MakimMa@springfld.com
With a copy to: 100 Northern Avenue Boston, Massachusetts 02210 Attention: Joshua M. Zachariah, Gregg L. Katz and Jean A. Lee Email: jzachariah@goodwinlaw.com, gkatz@goodwinlaw.com, jeanlee@goodwinlaw.com |
| Ordinary Shares: None ADSs: 1,627,810 |
| Company Options: None Company RSUs: None Company Warrants: None |
| |
* | ADSs are directly held by Golwyn Capital Appreciation Limited, an Affiliate of Morningside Venture (I) Investments Limited
|
[Schedule A to Voting and Support Agreement]
JOINDER AGREEMENT
This Joinder Agreement (“Joinder Agreement”) is executed by the undersigned (the “Transferee”) pursuant to the terms of that certain Voting and Support Agreement dated as of [ ], 2022 (the “Agreement”) by and among Stealth BioTherapeutics Corp and the Shareholders named therein. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement.
By the execution of this Joinder Agreement, the Transferee agrees as follows:
(a) Acknowledgment. Transferee acknowledges that Transferee is acquiring certain Covered Shares subject to the terms and conditions of the Agreement.
(b) Agreement. Transferee (i) agrees that the Covered Shares acquired by Transferee shall be bound by and subject to the terms of the Agreement, (ii) hereby adopts the Agreement with the same force and effect as if Transferee were originally a party thereto and (iii) agrees to be subject to the obligations and restrictions of the Shareholder thereunder.
(c) Notice. Any notice required or permitted by the Agreement shall be given to Transferee at the address listed beside Transferee’s signature below.
| TRANSFEREE | |
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Accepted and Agreed: |
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STEALTH BIOTHERAPEUTICS CORP
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[Exhibit A to Voting and Support Agreement]