As filed with the Securities and Exchange Commission on May 12, 2021

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Butterfly Network, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   84-4618156
(State or other jurisdiction of
incorporation or organization) 		  (I.R.S. Employer
Identification Number)

 

530 Old Whitfield Street
Guilford, Connecticut 06437

Telephone: (203) 689-5650

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Amended and Restated 2020 Equity Incentive Plan

2012 Employee, Director and Consultant Equity Incentive Plan, as amended

(Full Title of the Plans)

Todd M. Fruchterman, M.D., Ph.D.

President and Chief Executive Officer

Butterfly Network, Inc.

530 Old Whitfield Street
Guilford, Connecticut 06437

Telephone: (203) 689-5650

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

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   ¨
Non-accelerated filer   x   Smaller reporting company   x
        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.  ¨

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities
to be Registered 		  Amount
to be
Registered(1) 		    Proposed
Maximum
Offering Price
Per Share 		   

Proposed
Maximum

Aggregate
Offering Price(2)

 

    Amount of
Registration Fee 		 
Class A common stock, par value $0.0001 per share     44,069,116       (2 )     $375,485,286.30       $40,965.44  

 

(1) The number of shares of Class A common stock, par value $0.0001 per share (“Class A common stock”), stated above consists of the aggregate number of shares which may be sold upon the exercise of options or issuance of stock-based awards which have been granted and/or may hereafter be granted under the Amended and Restated 2020 Equity Incentive Plan (the “2020 Plan”) and the 2012 Employee, Director and Consultant Equity Incentive Plan, as amended (the “2012 Plan,” and collectively, the “Plans”).  The shares of Class A common stock registered hereunder for issuance pursuant to the 2020 Plan consist of up to 21,996,833 shares currently reserved for issuance pursuant to the 2020 Plan as well as up to 22,072,283 additional shares which are currently issuable pursuant to awards granted under the 2012 Plan and which may become authorized for issuance under the 2020 Plan if awards outstanding under the 2012 Plan are cancelled or expire. 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 Class A common stock that become issuable under the Plans by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of Class A common stock.

 

(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price for shares reserved for future issuance under the Plans are based on (i) in the case of shares of Class A common stock which may be purchased upon exercise of outstanding options, the fee is calculated on the basis of the price at which the options may be exercised; and (ii) in the case of shares of Class A common stock not yet issued and subject to stock-based awards or for which awards have not yet been granted, the average of the high and the low price of Registrant’s Class A common stock as reported on the New York Stock Exchange on May 11, 2021. The chart below details the calculations of the registration fee:

 

Securities   Number of
Shares 		    Offering Price Per
Share 		    Aggregate
Offering Price 		 
Shares reserved for future issuance under the 2020 Plan     20,660,458     $ 10.85 (2)   $ 224,165,969.30  
Shares underlying option awards outstanding under the 2020 Plan     1,336,375     $ 15.57 (2)   $ 20,807,358.75  
Shares reserved for future issuance under the 2012 Plan     3,348,518     $ 10.85 (2)   $ 36,331,420.30  
Shares underlying option awards outstanding under the 2012 Plan     18,723,765     $ 5.03 (2)   $ 94,180,537.95  
Proposed Maximum Aggregate Offering Price                   $ 375,485,286.30  
Registration Fee                   $ 40,965.44  

 

 

 

 

 

 

EXPLANATORY NOTE

 

On February 12, 2021, Butterfly Network, Inc., formerly known as Longview Acquisition Corp. (the “Registrant,” “we,” “us” or “our”), completed its business combination with what was then known as Butterfly Network, Inc. (“Legacy Butterfly”) in accordance with the terms of the Business Combination Agreement, dated as of November 19, 2020 (the “Business Combination Agreement”), by and among the Registrant, Clay Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Legacy Butterfly, pursuant to which Merger Sub merged with and into Legacy Butterfly, with Legacy Butterfly surviving as a wholly owned subsidiary of the Registrant (the “Merger”). In connection with the Merger, the Registrant changed its name to “Butterfly Network, Inc.” and Legacy Butterfly changed its name to “BFLY Operations, Inc.”

 

Pursuant to the Business Combination Agreement, the Registrant assumed the BFLY Operations, Inc. 2012 Employee, Director and Consultant Equity Incentive Plan, as amended (the “2012 Plan”) and (i) each option to purchase shares of Legacy Butterfly common stock that was outstanding and unexercised immediately prior to the effective time of the Merger under the 2012 Plan, whether or not vested, was converted into and became an option to purchase shares of the Registrant’s Class A common stock, and (ii) each restricted stock unit award granted under the 2012 Plan outstanding immediately prior to the effective time of the Merger was converted into and became a restricted stock unit award for shares of the Registrant’s Class A common stock (together, the “2012 Plan Awards”). This Registration Statement on Form S-8 is being filed for the purpose of registering shares of the Registrant’s Class A common stock issuable pursuant to the 2012 Plan Awards. In addition, in connection with the Merger, on February 12, 2021, the stockholders of the Registrant approved the Butterfly Network, Inc. 2020 Equity Incentive Plan (the “2020 Plan”), and this Registration Statement on Form S-8 is also being filed for the purpose of registering shares of the Registrant’s Class A common stock issuable under the 2020 Plan.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”), the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Class A common stock pursuant to the 2020 Plan and the 2012 Plan. The documents containing the information specified in Part I will be delivered to the participants in the 2020 Plan and the 2012 Plan covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by the Registrant with the SEC are incorporated herein by reference:

 

(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 29, 2021 as amended by Amendment No. 1 to the Registrant’s Annual Report on Form 10-K/A for the year ended December 31, 2020, filed with the SEC on May 12, 2021;

 

(b) The Registrant’s Current Reports on Form 8-K or 8-K/A as filed with the SEC on January 14, 2021, January 25, 2021, February 4, 2021, February 16, 2021, February 16, 2021, March 11, 2021, March 29, 2021 and May 4, 2021;

 

(c) The following information in Amendment No. 1 to the Registrant's Registration Statement on Form S-1/A filed on May 12, 2021: “Unaudited Pro Forma Condensed Combined Financial Information” and “Notes to Unaudited Pro Forma Condensed Combined Financial Statements” (appearing on pages 51-59), which updates and supersedes the "Unaudited Pro Forma Condensed Combined Financial Information" and "Notes to Unaudited Pro Forma Condensed Combined Financial Statements" included as Exhibit 99.1 to the Registrant's Current Report on Form 8-K filed with the SEC on February 16, 2021; and

 

 

 

 

(d) The description of the Registrant’s securities contained in the Registrant’s registration statement on Form 8-A/A (File No. 001-39292), filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on May 19, 2020, including any amendments or reports filed for the purpose of updating such description.

 

All reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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.

 

None.

 

Item 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”), permits a corporation to indemnify its directors and officers against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties. The directors or officers must have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reason to believe their conduct was unlawful. In a derivative action, an action only by or in the right of the corporation, indemnification may be made only for expenses, including attorney’s fees, actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit, and only with respect to a matter as to which they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification shall be made if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought determines upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. The amended and restated certificate of incorporation and the amended and restated bylaws of the registrant provide that the registrant may indemnify its directors, officers, employees or agents to the fullest extent permitted by applicable law.

 

Section 102(b)(7) of the DGCL permits a corporation to provide in its charter that a director 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, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or unlawful stock purchases or redemptions or (4) for any transaction from which the director derived an improper personal benefit. The current certificate of incorporation of the registrant provide for such limitation of liability.

 

We have entered into indemnification agreements with each of our directors and officers in which we have agreed to indemnify and hold harmless, and also advance expenses as incurred, to the fullest extent permitted under applicable law, against all expenses, losses and liabilities incurred by the indemnitee or on the indemnitee’s behalf arising from the fact that such person is or was a director, officer, employee or agent of our company or our subsidiaries.

 

 

 

 

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, our amended and restated certificate of incorporation, our amended and restated bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.

 

We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number 		  Exhibit Description   Filed
Herewith 		  Incorporated by
Reference herein from
Form or Schedule 		  Filing Date   SEC File/
Reg.
Number
                     
4.1   Second Amended and Restated Certificate of Incorporation of Butterfly Network, Inc.       Form 8-K
(Exhibit 3.1) 		  2/16/2021   001-39292
                     
4.2   Amended and Restated Bylaws of Butterfly Network, Inc.       Form 8-K
(Exhibit 3.2) 		  2/16/2021   001-39292
                     
4.3   Specimen Class A Common Stock Certificate.       Form 8-K
(Exhibit 4.1) 		  2/16/2021   001-39292
                     
4.4   Warrant Agreement, dated as of May 20, 2020, by and between Butterfly Network, Inc. (formerly Longview Acquisition Corp.) and Continental Stock Transfer & Trust Company.       Form 8-K
(Exhibit 4.1) 		  5/27/2020   001-39292
                     
5.1   Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.   X            
                     
23.1   Consent of WithumSmith+Brown, PC, independent registered public accounting firm of Longview Acquisition Corp.   X            
                     
23.2   Consent of Deloitte & Touche LLP, independent registered public accounting firm of Butterfly Network, Inc.   X            
                     
23.3   Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1)   X            
                     
24.1   Power of Attorney (included on the signature page hereof)   X            

 

 

 

 

99.1+   Butterfly Network, Inc. Amended and Restated 2020 Equity Incentive Plan.       Form 10-K
(Exhibit 10.19.1) 		  3/29/2021   001-39292
                     
99.2+   Form of Stock Option Agreement under 2020 Equity Incentive Plan.       Form 8-K
(Exhibit 10.15.2) 		  2/16/2021   001-39292
                     
99.3+   Form of Restricted Stock Unit Agreement under 2020 Equity Incentive Plan.   X            
                     
99.4+   BFLY Operations, Inc. 2012 Employee, Director and Consultant Equity Incentive Plan, as amended.       Form 10-K
(Exhibit 10.20.1) 		  3/29/2021   001-39292
                     
99.5+   Form of Stock Option Agreement under 2012 Employee, Director and Consultant Equity Incentive Plan, as amended.       Form 8-K
(Exhibit 10.16.2) 		  2/16/2021   001-39292
                     
99.6+   Form of Restricted Stock Unit Agreement under 2012 Employee, Director and Consultant Equity Incentive Plan, as amended.       Form 8-K
(Exhibit 10.16.3) 		  2/16/2021   001-39292

 

Item 9. Undertakings.

 

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 of 1933, as amended;

 

(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration 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.

 

(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.

 

(4) That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

 

 

 

(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

Insofar as indemnification for liabilities arising under the Securities 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 SEC 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 has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Guilford, State of Connecticut, on May 12, 2021.

 

  BUTTERFLY NETWORK, INC.
   
By: /s/ Todd M. Fruchterman, M.D., Ph.D.
    Todd M. Fruchterman, M.D., Ph.D.
    President and Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints each of Todd M. Fruchterman, M.D., Ph.D. and Stephanie Fielding, acting alone or together with another attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated under the Securities Act (and all further amendments, including post-effective amendments, thereto)), and to file the same, with all exhibits thereto, and 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 and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or 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, this registration statement has been signed by the following persons in the capacities and on the dated indicated.

 

Signature   Title   Date
/s/ Todd M. Fruchterman, M.D.   President, Chief Executive Officer and Director
(Principal Executive Officer) 		  May 12, 2021
Todd M. Fruchterman, M.D.
 
/s/ Stephanie Fielding   Chief Financial Officer (Principal Financial and Accounting Officer)   May 12, 2021
Stephanie Fielding
 
/s/ Jonathan M. Rothberg, Ph.D.   Chairman   May 12, 2021
Jonathan M. Rothberg, Ph.D.
 
/s/ Dawn Carfora   Director   May 12, 2021
Dawn Carfora
 
/s/ Elazer Edelman, M.D., Ph.D.   Director   May 12, 2021
Elazer Edelman, M.D., Ph.D.
 
/s/ John Hammergren   Director   May 12, 2021
John Hammergren
 
/s/ Gianluca Pettiti   Director   May 12, 2021
Gianluca Pettiti
 
/s/ S. Louise Phanstiel   Director   May 12, 2021
S. Louise Phanstiel
 
/s/ Larry Robbins   Director   May 12, 2021
Larry Robbins

 

 

 

 

Exhibit 5.1

 

  One Financial Center
Boston, MA 02111
617 542 6000
mintz.com

 

May 12, 2021

 

Butterfly Network, Inc.

530 Old Whitfield Street

Guilford, CT 06437

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as legal counsel to Butterfly Network, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 44,069,116 shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), that may be issued pursuant to the Company’s Amended and Restated 2020 Equity Incentive Plan and the Company’s 2012 Employee, Director and Consultant Equity Incentive Plan, as amended (together, the “Plans”). This opinion is being rendered in connection with the filing of the Registration Statement with the Commission. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.

 

In connection with this opinion, we have examined the Company’s Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.

 

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such copies, and the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plans.

 

Our opinion expressed herein is limited to the General Corporation Law of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction.

 

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

 

Boston       London       Los Angeles       New York       San Diego       San Francisco      Washington

MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

 

 

 

 

MINTZ

 

May 12, 2021
Page 2

 

Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Plans, will be validly issued, fully paid and non-assessable.

 

We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and we hereby consent thereto. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

  Very truly yours,
   
  /s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
   
  Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8, of our report dated May 12, 2021, relating to the financial statements of Butterfly Network, Inc. (fka Longview Acquisition Corp.).

 

/s/ WithumSmith+Brown, PC  
   
New York, New York  
May 12, 2021  

 

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 29, 2021, relating to the financial statements of BLFY Operations, Inc. (formerly Butterfly Network, Inc.) appearing in the Current Report on Form 8-K/A of Butterfly Network, Inc. dated March 29, 2021.

 

/s/ Deloitte & Touche LLP

 

New York, New York

 

May 12, 2021

 

 

 

Exhibit 99.3

 

BUTTERFLY NETWORK, INC.

 

Restricted Stock Unit Award Grant Notice

Restricted Stock Unit Award Grant under the Company’s

2020 Equity Incentive Plan

 

1. Name and Address of Participant:

 

2. Date of Grant of

 

Restricted Stock Unit Award:

 

3. Maximum Number of Shares underlying

 

Restricted Stock Unit Award:

 

4. Vesting of Award: This Restricted Stock Unit Award shall vest as follows provided the Participant is an Employee, director or Consultant of the Company or of an Affiliate on the applicable vesting:

 

Number of Restricted Stock Units   Vesting Date

 

[INSERT VESTING PROVISIONS]

 

The Company and the Participant acknowledge receipt of this Restricted Stock Unit Award Grant Notice and agree to the terms of the Restricted Stock Unit Agreement attached hereto and incorporated by reference herein, the Company’s 2020 Equity Incentive Plan and the terms of this Restricted Stock Unit Award as set forth above.

 

  BUTTERFLY NETWORK, INC.
   
  By:         
  Name:  
  Title:  
   
   
  Participant

 

 

 

 

BUTTERFLY NETWORK, INC.

 

RESTRICTED STOCK UNIT AGREEMENT –

 

INCORPORATED TERMS AND CONDITIONS

 

AGREEMENT made as of the date of grant set forth in the Restricted Stock Unit Award Grant Notice between Butterfly Network, Inc. (the “Company”), a Delaware corporation, and the individual whose name appears on the Restricted Stock Unit Award Grant Notice (the “Participant”).

 

WHEREAS, the Company has adopted the 2020 Equity Incentive Plan (the “Plan”), to promote the interests of the Company by providing an incentive for Employees, directors and Consultants of the Company and its Affiliates;

 

WHEREAS, pursuant to the provisions of the Plan, the Company desires to grant to the Participant restricted stock units (“RSUs”) related to the Company’s Class A common stock, $.0001 par value per share (“Common Stock”), in accordance with the provisions of the Plan, all on the terms and conditions hereinafter set forth; and

 

WHEREAS, the Company and the Participant understand and agree that any terms used and not defined herein have the meanings ascribed to such terms in the Plan.

 

NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1.             Grant of Award. The Company hereby grants to the Participant an award for the number of RSUs set forth in the Restricted Stock Unit Award Grant Notice (the “Award”). Each RSU represents a contingent entitlement of the Participant to receive one share of Common Stock, on the terms and conditions and subject to all the limitations set forth herein and in the Plan, which is incorporated herein by reference. The Participant acknowledges receipt of a copy of the Plan.

 

2.             Vesting of Award.

 

(a)               Subject to the terms and conditions set forth in this Agreement and the Plan, the Award granted hereby shall vest as set forth in the Restricted Stock Unit Award Grant Notice and is subject to the other terms and conditions of this Agreement and the Plan. On each vesting date set forth in the Restricted Stock Unit Award Grant Notice, the Participant shall be entitled to receive such number of shares of Common Stock equivalent to the number of RSUs as set forth in the Restricted Stock Unit Award Grant Notice provided that the Participant is providing service to the Company or an Affiliate on such vesting date. Such shares of Common Stock shall thereafter be delivered by the Company to the Participant within [five] days of the applicable vesting date and in accordance with this Agreement and the Plan.

 

(b)               Except as otherwise set forth in this Agreement, if the Participant ceases to be providing services for any reason by the Company or by an Affiliate (the “Termination”) prior to a vesting date set forth in the Restricted Stock Unit Award Grant Notice, then as of the date on which the Participant’s employment or service terminates, all unvested RSUs shall immediately be forfeited to the Company and this Agreement shall terminate and be of no further force or effect.

 

 

 

 

3.             Prohibitions on Transfer and Sale. This Award (including any additional RSUs received by the Participant as a result of stock dividends, stock splits or any other similar transaction affecting the Company’s securities without receipt of consideration) shall not be transferable by the Participant otherwise than (i) by will or by the laws of descent and distribution, or (ii) pursuant to a qualified domestic relations order as defined by the Internal Revenue Code or Title I of the Employee Retirement Income Security Act or the rules thereunder. Except as provided in the previous sentence, the shares of Common Stock to be issued pursuant to this Agreement shall be issued, during the Participant’s lifetime, only to the Participant (or, in the event of legal incapacity or incompetence, to the Participant’s guardian or representative). This Award shall not be assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process. Any attempted transfer, assignment, pledge, hypothecation or other disposition of this Award or of any rights granted hereunder contrary to the provisions of this Section 3, or the levy of any attachment or similar process upon this Award shall be null and void.

 

4.             Adjustments. The Plan contains provisions covering the treatment of RSUs and shares of Common Stock in a number of contingencies such as stock splits. Provisions in the Plan for adjustment with respect to this Award and the related provisions with respect to successors to the business of the Company are hereby made applicable hereunder and are incorporated herein by reference.

 

5.             Securities Law Compliance. The Participant specifically acknowledges and agrees that any sales of shares of Common Stock shall be made in accordance with the requirements of the Securities Act of 1933, as amended. The Company currently has an effective registration statement on file with the Securities and Exchange Commission with respect to the Common Stock to be granted hereunder. The Company intends to maintain this registration statement but has no obligation to do so. If the registration statement ceases to be effective for any reason, Participant will not be able to transfer or sell any of the shares of Common Stock issued to the Participant pursuant to this Agreement unless exemptions from registration or filings under applicable securities laws are available. Furthermore, despite registration, applicable securities laws may restrict the ability of the Participant to sell his or her Common Stock, including due to the Participant’s affiliation with the Company. The Company shall not be obligated to either issue the Common Stock or permit the resale of any shares of Common Stock if such issuance or resale would violate any applicable securities law, rule or regulation.

 

6.             Rights as a Stockholder. The Participant shall have no right as a stockholder, including voting and dividend rights, with respect to the RSUs subject to this Agreement.

 

7.             Incorporation of the Plan. The Participant specifically understands and agrees that the RSUs and the shares of Common Stock to be issued under the Plan will be issued to the Participant pursuant to the Plan, a copy of which Plan the Participant acknowledges he or she has read and understands and by which Plan he or she agrees to be bound. The provisions of the Plan are incorporated herein by reference.

 

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8.             Tax Liability of the Participant and Payment of Taxes. The Participant acknowledges and agrees that any income or other taxes due from the Participant with respect to this Award or the shares of Common Stock to be issued pursuant to this Agreement or otherwise sold shall be the Participant’s responsibility. Without limiting the foregoing, the Participant agrees that if under applicable law the Participant will owe taxes at each vesting date on the portion of the Award then vested the Company shall be entitled to immediate payment from the Participant of the amount of any tax or other amounts required to be withheld by the Company by applicable law or regulation. Any taxes or other amounts due shall be paid, at the option of the Administrator as follows:

 

(a)               through reducing the number of shares of Common Stock entitled to be issued to the Participant on the applicable vesting date in an amount equal to the statutory minimum of the Participant’s total tax and other withholding obligations due and payable by the Company. Fractional shares will not be retained to satisfy any portion of the Company’s withholding obligation. Accordingly, the Participant agrees that in the event that the amount of withholding required would result in a fraction of a share being owed, that amount will be satisfied by withholding the fractional amount from the Participant’s paycheck;

 

(b)               requiring the Participant to deposit with the Company an amount of cash equal to the amount determined by the Company to be required to be withheld with respect to the statutory minimum amount of the Participant’s total tax and other withholding obligations due and payable by the Company or otherwise withholding from the Participant’s paycheck an amount equal to such amounts due and payable by the Company; or

 

(c)               if the Company believes that the sale of shares can be made in compliance with applicable securities laws, authorizing, at a time when the Participant is not in possession of material nonpublic information, the sale by the Participant on the applicable vesting date of such number of shares of Common Stock as the Company instructs a registered broker to sell to satisfy the Company’s withholding obligation, after deduction of the broker’s commission, and the broker shall be required to remit to the Company the cash necessary in order for the Company to satisfy its withholding obligation. To the extent the proceeds of such sale exceed the Company’s withholding obligation the Company agrees to pay such excess cash to the Participant as soon as practicable. In addition, if such sale is not sufficient to pay the Company’s withholding obligation the Participant agrees to pay to the Company as soon as practicable, including through additional payroll withholding, the amount of any withholding obligation that is not satisfied by the sale of shares of Common Stock. The Participant agrees to hold the Company and the broker harmless from all costs, damages or expenses relating to any such sale. The Participant acknowledges that the Company and the broker are under no obligation to arrange for such sale at any particular price. In connection with such sale of shares of Common Stock, the Participant shall execute any such documents requested by the broker in order to effectuate the sale of shares of Common Stock and payment of the withholding obligation to the Company. The Participant acknowledges that this paragraph is intended to comply with Section 10b5-1(c)(1)(i)(B) under the Exchange Act.

 

It is the Company’s intention that the Participant’s tax obligations under this Section 8 shall be satisfied through the procedure of Subsection (c) above, unless the Company provides notice of an alternate procedure under this Section, in its discretion. The Company shall not deliver any shares of Common Stock to the Participant until it is satisfied that all required withholdings have been made.

 

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9.             Participant Acknowledgements and Authorizations.

 

The Participant acknowledges the following:

 

(a)               The Company is not by the Plan or this Award obligated to continue the Participant as an employee, director or consultant of the Company or an Affiliate.

 

(b)               The Plan is discretionary in nature and may be suspended or terminated by the Company at any time.

 

(c)               The grant of this Award is considered a one-time benefit and does not create a contractual or other right to receive any other award under the Plan, benefits in lieu of awards or any other benefits in the future.

 

(d)               The Plan is a voluntary program of the Company and future awards, if any, will be at the sole discretion of the Company, including, but not limited to, the timing of any grant, the amount of any award, vesting provisions and the purchase price, if any.

 

(e)               The value of this Award is an extraordinary item of compensation outside of the scope of the Participant’s employment or consulting contract, if any. As such the Award is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. The future value of the shares of Common Stock is unknown and cannot be predicted with certainty.

 

(f)                The Participant (i) authorizes the Company and each Affiliate and any agent of the Company or any Affiliate administering the Plan or providing Plan recordkeeping services, to disclose to the Company or any of its Affiliates such information and data as the Company or any such Affiliate shall request in order to facilitate the grant of the Award and the administration of the Plan; and (ii) authorizes the Company and each Affiliate to store and transmit such information in electronic form for the purposes set forth in this Agreement.

 

10.           Notices. Any notices required or permitted by the terms of this Agreement or the Plan shall be given by recognized courier service, facsimile, registered or certified mail, return receipt requested, addressed as follows:

 

If to the Company:

 

[ADDRESS

Attention: ]

 

If to the Participant at the address set forth on the Restricted Stock Unit Award Grant Notice or to such other address or addresses of which notice in the same manner has previously been given. Any such notice shall be deemed to have been given on the earliest of receipt, one business day following delivery by the sender to a recognized courier service, or three business days following mailing by registered or certified mail.

 

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11.            Assignment and Successors.

 

(a)               This Agreement is personal to the Participant and without the prior written consent of the Company shall not be assignable by the Participant otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Participant’s legal representatives.

 

(b)               This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

 

12.           Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without giving effect to the conflict of law principles thereof. For the purpose of litigating any dispute that arises under this Agreement, whether at law or in equity, the parties hereby consent to exclusive jurisdiction in [Connecticut] and agree that such litigation will be conducted in the state courts of [Connecticut] or the federal courts of the United States for the District of [Connecticut].

 

13.           Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision or provisions shall be modified to the extent necessary to make such provision valid and enforceable, and to the extent that this is impossible, then such provision shall be deemed to be excised from this Agreement, and the validity, legality and enforceability of the rest of this Agreement shall not be affected thereby.

 

14.           Entire Agreement. This Agreement, together with the Plan, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement not expressly set forth in this Agreement shall affect or be used to interpret, change or restrict the express terms and provisions of this Agreement provided, however, in any event, this Agreement shall be subject to and governed by the Plan.

 

15.           Modifications and Amendments; Waivers and Consents. The terms and provisions of this Agreement may be modified or amended as provided in the Plan. Except as provided in the Plan, the terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

 

16.           Section 409A. The Award of RSUs evidenced by this Agreement is intended to be exempt from the nonqualified deferred compensation rules of Section 409A of the Code as a “short term deferral” (as that term is used in the final regulations and other guidance issued under Section 409A of the Code, including Treasury Regulation Section 1.409A-1(b)(4)(i)), and shall be construed accordingly.

 

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17.           Data Privacy. By entering into this Agreement, the Participant: (i) authorizes the Company and each Affiliate, and any agent of the Company or any Affiliate administering the Plan or providing Plan recordkeeping services, to disclose to the Company or any of its Affiliates such information and data as the Company or any such Affiliate shall request in order to facilitate the grant of options and the administration of the Plan; (ii) to the extent permitted by applicable law waives any data privacy rights he or she may have with respect to such information, and (iii) authorizes the Company and each Affiliate to store and transmit such information in electronic form for the purposes set forth in this Agreement.

 

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