AVALANCHE BIOTECHNOLOGIES, INC. AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 4.7
Execution Version
AVALANCHE BIOTECHNOLOGIES, INC.
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (the “Agreement”) is made and entered into as of this 16th day of April, 2014, by and among Avalanche Biotechnologies, Inc., a Delaware corporation (the “Company”), those certain holders of the Company’s Common Stock listed on Exhibit A hereto (the “Key Holders”) and the holders of the Company’s Series A Preferred Stock (the “Series A Preferred Stock”) and Series B Preferred Stock (the “Series B Preferred Stock” and collectively with the Series A Preferred Stock, the “Preferred Stock”) listed on Exhibit B hereto (the “Investors”).
WITNESSETH
WHEREAS, the Key Holders are the beneficial owners of an aggregate of three million one hundred thousand (3,100,000) shares of the common stock of the Company (the “Common Stock”);
WHEREAS, certain of the Investors are purchasing shares of the Company’s Series B Preferred Stock pursuant to that certain Series B Preferred Stock Purchase Agreement (the “Purchase Agreement”) of even date herewith (the “Financing”);
WHEREAS, the Company and the holders of Series A Preferred Stock have previously entered into that certain Voting Agreement dated as of September 7, 2010 (the “Prior Agreement”) and desire to amend and restate the Prior Agreement and to accept the rights created pursuant hereto in lieu of the rights created under the Prior Agreement;
WHEREAS, the obligations in the Purchase Agreement are conditioned upon the execution and delivery of this Agreement;
WHEREAS, pursuant to Section 3.5 of the Prior Agreement, the Prior Agreement may be amended or modified (or provisions of this Agreement waived) only upon the written consent of (i) the Company, (ii) holders of a majority of the Series A Preferred Stock and (iii) holders of a majority of the Key Holder Shares (as defined in the Prior Agreement) held by Key Holders (as defined in the Prior Agreement) then providing services to the Company as officers or employees (the “Prior Agreement Amendment Requirement”); and
WHEREAS, the execution of this Agreement by the Company and the undersigned Stockholders satisfies the Prior Agreement Amendment Requirement.
NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
| 1. | VOTING. |
1.1 Key Holder Shares; Investor Shares.
(a) The Key Holders each agree to hold all shares of voting capital stock of the Company registered in their respective names or beneficially owned by them as of the date hereof and any and all other securities of the Company legally or beneficially acquired by each of the Key Holders after the date hereof (hereinafter collectively referred to as the “Key Holder Shares”) subject to, and to vote the Key Holder Shares in accordance with, the provisions of this Agreement.
(b) The Investors each agree to hold all shares of voting capital stock of the Company (including but not limited to all shares of Common Stock issued or issuable upon conversion of the Preferred Stock) registered in their respective names or beneficially owned by them as of the date hereof and any and all other securities of the Company legally or beneficially acquired by each of the Investors after the date hereof (hereinafter collectively referred to as the “Investor Shares”) subject to, and to vote the Investor Shares in accordance with, the provisions of this Agreement.
1.2 Election of Directors. On all matters relating to the election and removal of directors of the Company, the Key Holders and the Investors agree to vote all Key Holder Shares and Investor Shares held by them (or the holders thereof shall consent pursuant to an action by written consent of the holders of capital stock of the Company) so as to elect members of the Company’s Board of Directors as follows:
(a) At each election of or action by written consent to elect directors in which the holders of Preferred Stock, voting as a separate class, are entitled to elect directors of the Company, the Investors shall vote all of their respective Investor Shares so as to elect one individual designated by the holders of a majority of the Series A Preferred Stock, which individual shall initially be Steven D. Schwartz (the “Series A Designee”). Any vote taken to remove any director elected pursuant to this Section 1.2(a), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.2(a), shall also be subject to the provisions of this Section 1.2(a). Upon the request of any party entitled to designate a director as provided in this Section 1.2(a), each Investor agrees to vote its Investor Shares for the removal of such director.
(b) At each election of directors in which the holders of Common Stock, voting as a separate class, are entitled to elect directors of the Company, the Key Holders and the Investors shall vote all of their respective Key Holder Shares and Investor Shares (to the extent converted to Common Stock) so as to elect: (i) the person serving as Chief Executive Officer of the Company, which individual shall initially be Thomas W. Chalberg, Jr. and (ii) one (1) individual designated by the holders of a majority of Common Stock held by Key Holders who are then providing services to the Company as officers or employees, if any, which individual shall initially be Mark S. Blumenkranz (together, the “Common Designees”). Any vote taken to remove any director elected pursuant to this Section 1.2(b), or to fill any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 1.2(b), shall also be subject to the provisions of this Section 1.2(b). In the event that the person serving as the director
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to be elected as set forth in Section 1.2(b)(i) ceases to serve as the Chief Executive Officer of the Company, each Key Holder agrees to vote its Key Holder Shares for the removal of such director at the request of a majority of the Board of Directors excluding the director to be removed.
1.3 No Liability for Election of Recommended Director. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board of Directors by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement.
1.4 Legend.
(a) Concurrently with the execution of this Agreement, there shall be imprinted or otherwise placed, on certificates representing the Key Holder Shares and the Investor Shares the following restrictive legend (the “Legend”):
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
(b) The Company agrees that, during the term of this Agreement, it will not remove, and will not permit to be removed (upon registration of transfer, reissuance of otherwise), the Legend from any such certificate and will place or cause to be placed the Legend on any new certificate issued to represent Key Holder Shares or Investor Shares theretofore represented by a certificate carrying the Legend. If at any time or from time to time any Key Holder or Investor holds any certificate representing shares of the Company’s capital stock not bearing the aforementioned legend, such Key Holder or Investor agrees to deliver such certificate to the Company promptly to have such legend placed on such certificate.
1.5 Successors. The provisions of this Agreement shall be binding upon the successors in interest to any of the Key Holder Shares or Investor Shares. The Company shall not permit the transfer of any of the Key Holder Shares or Investor Shares on its books or issue a new certificate representing any of the Key Holder Shares or Investor Shares unless and until the person to whom such security is to be transferred shall have executed a written agreement, substantially in the form of this Agreement, pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions hereof as if such person were a Key Holder or Investor, as applicable.
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1.6 Other Rights. Except as provided by this Agreement or any other agreement entered into in connection with the Financing, each Key Holder and Investor shall exercise the full rights of a holder of capital stock of the Company with respect to the Key Holder Shares and the Investor Shares, respectively.
1.7 Irrevocable Proxy. To secure the Key Holder’s and the Investor’s obligations to vote the Key Holder Shares and the Investor Shares in accordance with this Agreement, each Key Holder and each Investor hereby appoints the Chairman of the Board of Directors or the Chief Executive Officer of the Company, or either of them from time to time, or their designees, as such Key Holder’s or Investor’s true and lawful proxy and attorney, with the power to act alone and with full power of substitution, to vote all of such Key Holder’s Key Holder Shares or such Investor’s Investor Shares as set forth in this Agreement and to execute all appropriate instruments consistent with this Agreement on behalf of such Key Holder or Investor if, and only if, such Key Holder or Investor fails to vote all of such Key Holder’s Key Holder Shares or such Investor’s Investor Shares or execute such other instruments in accordance with the provisions of this Agreement within five (5) days of the Company’s or any other party’s written request for such Key Holder’s or Investor’s written consent or signature. The proxy and power granted by each Key Holder and Investor pursuant to this Section are coupled with an interest and are given to secure the performance of such party’s duties under this Agreement. Each such proxy and power will be irrevocable for the term hereof. The proxy and power, so long as any party hereto is an individual, will survive the death, incompetency and disability of such party or any other individual holder of the Investor Shares or the Key Holder Shares, as the case may be, and, so long as any party hereto is an entity, will survive the merger or reorganization of such party or any other entity holding any Investor Shares or Key Holder Shares.
1.8 No “Bad Actor” Disqualification.
(a) The Company represents and warrants that it has exercised reasonable care to determine whether any Company Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act of 1934, as amended (the “Securities Act”) (“Disqualification Events”). To the Company’s knowledge, no Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities Act. For purposes of this Agreement, “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act.
(b) Each Investor and each Key Holder (each, a “Voting Party”) on behalf of itself represents and warrants, severally and not jointly, and to the Company only, that neither (i) such person, nor (ii) any entity that is an affiliate of such person, nor (iii) any director of the Company that has been designated by such person, is subject to any Disqualification Event (as defined in Section 1.8(a) above), except for Disqualification Events covered by Rule 506(d)(2)(i), (ii) or (iii) or (d)(3) under the Securities Act and disclosed in writing in reasonable detail to the Company. No party to this Agreement entitled to designate a director of the Company under Section 2 hereof shall designate a director that is subject to any Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2)(i), (ii) or (iii) or (d)(3) under the Securities Act, in which case such party will promptly disclose in writing to the Company and other parties to this Agreement any and all information necessary for the Company to determine whether Rule 506(d)(2)(i), (ii) or (iii) or (d)(3) applies.
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(c) Each party to this Agreement represents, severally and not jointly and to the Company only, that it has exercised reasonable care to determine the accuracy of the representation made by it in either Sections 1.8(a) or 1.8(b) as applicable, and agrees to notify the Company if it becomes aware of any fact that makes the representation given by it hereunder inaccurate.
(d) Notwithstanding any other provision in this Agreement to the contrary, no party to this Agreement will be required to vote for any director or proposed director who is subject to a Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2)(i), (ii) or (iii) or (d)(3) under the Securities Act.
(e) The agreements under this Section 1.8 between the Company and each Voting Party are separate agreements and no Voting Party or any affiliate thereof (other than the Company) shall be directly liable to any other Voting Party under this Section 1.8.
| 2. | TERMINATION. |
2.1 This Agreement shall continue in full force and effect from the date hereof through the earliest of the following dates, on which date it shall terminate in its entirety:
(a) the date of the closing of a firmly underwritten public offering of the Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission, and declared effective under the Securities Act that results in the Preferred Stock being converted into Common Stock;
(b) ten (10) years from the date of this Agreement.
(c) the date of the closing of an Acquisition, as defined in the Company’s Certificate of Incorporation as in effect as of the date hereof; or
(d) the date as of which the parties hereto terminate this Agreement by written consent of the holders of a majority of the Series A Preferred Stock, the holders of a majority of the Series B Preferred Stock and the Key Holders holding a majority of the Key Holder Shares who are then providing services to the Company as officers or employees.
| 3. | MISCELLANEOUS. |
3.1 Ownership. Each Key Holder represents and warrants to the Investors and the Company that (a) such Key Holder now owns the Key Holder Shares listed on Exhibit A hereto, free and clear of liens or encumbrances, and has not, prior to or on the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement other than one which has expired or terminated prior to the date hereof, and (b) such Key Holder has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Key Holder enforceable in accordance with its terms. Each Investor represents and warrants to
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the Investors and the Company that (a) such Investor now owns, or will own upon the Closing (as defined in the Purchase Agreement), the Investor Shares listed on Exhibit B hereto, free and clear of liens or encumbrances, and has not, prior to or on the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement other than one which has expired or terminated prior to the date hereof, and (b) such Investor has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Investor enforceable in accordance with its terms.
3.2 Further Action. If and whenever any Key Holder Shares are sold, the Key Holders or the personal representative of the Key Holders shall do all things and execute and deliver all documents and make all transfers, and cause any transferee of the Key Holder Shares to do all things and execute and deliver all documents, as may be necessary to consummate such sale consistent with this Agreement.
3.3 Specific Performance. The parties hereto hereby declare that it is impossible to measure in money the damages which will accrue to a party hereto or to their heirs, personal representatives, or assigns by reason of a failure to perform any of the obligations under this Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding to specifically enforce the provisions hereof, any person against whom such action or proceeding is brought hereby waives the claim or defense therein that such party or such personal representative has an adequate remedy at law, and such person shall not offer in any such action or proceeding the claim or defense that such remedy at law exists.
3.4 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware as such laws are applied to agreements among Delaware residents entered into and performed entirely within the State of Delaware, without reference to the conflict of laws provisions thereof. The parties agree that any action brought by either party under or in relation to this Agreement, including without limitation to interpret or enforce any provision of this Agreement, shall be brought in, and each party agrees to and does hereby submit to the jurisdiction and venue of, any state or federal court located in the County of Santa Clara, California. THE PARTIES TO THIS AGREEMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO DISPUTES ARISING UNDER THIS AGREEMENT AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT.
3.5 Amendment or Waiver. This Agreement may be amended or modified (or provisions of this Agreement waived) only upon the written consent of (i) the Company, (ii) holders of a majority of the Series A Preferred Stock; (iii) holders of a majority of the Series B Preferred Stock; and (iv) holders of a majority of the Key Holder Shares held by Key Holders then providing services to the Company as officers or employees. Any amendment or waiver so effected shall be binding upon the Company, each of the parties hereto and any assignee of any such party. Notwithstanding the foregoing, Section 1.2 of this Agreement may be amended to add additional holders of Common Stock or Preferred Stock as Key Holders or Investors hereunder by an instrument in writing signed by the Company and such holders. Notwithstanding the foregoing, any amendment, modification or waiver that adversely affects the rights of an Investor in a manner that is materially different than the effect on the rights of the other Investors shall also require the written consent of such adversely affected Investor.
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3.6 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
3.7 Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors and administrators and other legal representatives.
3.8 Additional Shares. In the event that subsequent to the date of this Agreement any shares or other securities are issued on, or in exchange for, any of the Key Holder Shares or Investor Shares by reason of any stock dividend, stock split, combination of shares, reclassification or the like, such shares or securities shall be deemed to be Key Holder Shares or Investor Shares, as the case may be, for purposes of this Agreement.
3.9 Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company shall issue additional shares of its Preferred Stock pursuant to the Purchase Agreement, any purchaser of such shares of Preferred Stock shall become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement and shall be deemed an Investor and a party hereunder.
3.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one instrument.
3.11 Waiver. No waivers of any breach of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies of any other party hereto or with respect to any subsequent breach.
3.12 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character on any party’s part of any breach, default or noncompliance under this Agreement or any waiver on such party’s part of any provisions or conditions of the Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement by law, or otherwise afforded to any party, shall be cumulative and not alternative.
3.13 Attorney’s Fees. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
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3.14 Notices. All notices required in connection with this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written notification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or Exhibit A or Exhibit B hereto or at such other address or electronic mail address as such party may designate by ten (10) days advance written notice to the other parties hereto.
3.15 Entire Agreement. This Agreement and the Exhibits hereto, along with the Purchase Agreement and the other documents delivered pursuant thereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any other in any manner by any oral or written representations, warranties, covenants and agreements except as specifically set forth herein and therein. Each party expressly represents and warrants that it is not relying on any oral or written representations, warranties, covenants or agreements outside of this Agreement. The Prior Agreement is hereby amended in its entirety and restated herein, and all provisions of, rights granted and covenants made in the Prior Agreement are hereby waived, released and superseded in their entirety and shall have no further force or effect.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND RESTATED VOTING AGREEMENT as of the date first above written.
| COMPANY: | ||
| AVALANCHE BIOTECHNOLOGIES, INC. | ||
| Signature: | /s/ Tom Chalberg | |
| Print Name: | Thomas W. Chalberg, Jr. | |
| Title: | President and Chief Executive Officer | |
| Address: | 1035 O’Brien Drive | |
| Menlo Park, CA 94025 | ||
| Attention: Chief Executive Officer | ||
| with a copy (which shall not constitute notice) to: | ||
| Latham & Watkins LLP 140 Scott Drive Menlo Park, California 94025 Attn: Alan C. Mendelson, Esq. | ||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTORS: | ||
| VENROCK ASSOCIATES VI, L.P. | ||
| By: | Venrock Management VI, LLC | |
| Its: | General Partner | |
| VENROCK PARTNERS VI, L.P. | ||
| By: | Venrock Partners Management VI, LLC | |
| Its: | General Partner | |
| By: | /s/ David Stepp | |
| Authorized Signatory | ||
| VENROCK HEALTHCARE CAPITAL PARTNERS, L.P. | ||
| By: | VHCP Management, LLC | |
| Its: | General Partner | |
| VHCP CO-INVESTMENT HOLDINGS, LLC | ||
| By: | VHCP Management, LLC | |
| Its: | Manager | |
| By: | /s/ David Stepp | |
| Authorized Signatory | ||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| ZYGTECH, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY | ||
| By: | /s/ Zygmunt Wilf | |
| Name: | Zygmunt Wilf | |
| Title: | Member | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| RICHARD AND MARCIA SCHULMAN LIVING TRUST DATED 10/2/99 | ||
| By: | /s/ Richard Schulman | |
| Name: | Richard Schulman | |
| Title: | Co-Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| ROBERTA S. HOLLAND REVOCABLE TRUST-1996, DATED 10/28/96 AS AMENDED | ||
| By: | /s/ Roberta S. Holland | |
| Name: | Roberta S. Holland Revocable Trust - 1996 | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| PENSCO TRUST COMPANY CUSTODIAN (JOSEPH OLIVEIRA), IRA 080000004747 | ||
| By: | /s/ Joseph Oliveira | |
| Name: | Joseph Oliveira | |
| Title: |
| |
| PENSCO TRUST COMPANY FBO | ||
| Joseph Oliveira | ||
| Authorized Signer | ||
| By: | /s/ Rachel Wheeler | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| REGENERON PHARMACEUTICALS, INC. | ||
| By: | /s/ Joseph J. LaRosa | |
| Name: | Joseph J. LaRosa | |
| Title: | SVP, General Counsel & Secretary | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||||
| COWEN AV INVESTMENT LLC | ||||
| By: | Cowen Structured Holdings Inc., it’s managing member | |||
| By: | /s/ Stephen Lasota | |||
| Name: | Stephen Lasota | |||
| Title: | Chief Financial Officer | |||
| Cowen Group, Inc. | ||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTORS: | ||
| REDMILE CAPITAL FUND, LP | ||
| /s/ Jeremy Green | ||
| By. | Jeremy Green | |
| Title: | Managing Member of the General Partner and the Investment Manager | |
| REDMILE CAPITAL OFFSHORE FUND, LTD. | ||
| /s/ Jeremy Green | ||
| By. | Jeremy Green | |
| Title: | Managing Member of the Investment Manager | |
| REDMILE CAPITAL OFFSHORE FUND II, LTD. | ||
| /s/ Jeremy Green | ||
| By. | Jeremy Green | |
| Title: | Managing Member of the Investment Manager | |
| REDMILE SPECIAL OPPORTUNITIES FUND, LTD. | ||
| /s/ Jeremy Green | ||
| By. | Jeremy Green | |
| Title: | Managing Member of the Investment Manager | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||||||
| SABBY HEALTHCARE VOLATILITY MASTER FUND, LTD. | ||||||
| By: | Sabby Management, LLC, its Investment Manager | |||||
| By: | /s/ Robert Grundstein | |||||
| Robert Grundstein, COO and General Counsel | ||||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| ADAGE CAPITAL PARTNERS, LP | ||
| BY: | Adage Capital Partners, GP, LLC, it’s General Partner | |
| BY: | Adage Capital Advisors, LLC it’s Managing Member | |
| By: | /s/ Phillip T. Gross | |
| Name: | Phillip T. Gross | |
| Title: | Managing Director | |
Adage Capital Partners, GP, LLC (“ACPGP”), serves as the general partner of Adage Capital Partners, LP, a Delaware limited partnership (the “Fund”) and as such has discretion over the portfolio of securities beneficially owned by the Fund. Adage Capital Advisors, LLC, a Delaware limited liability company (“ACA”), is managing member of ACPGP and directs ACPGP’s operations. Robert Atchinson and Phillip Gross are the managing members of ACPGP and ACA and general partners of the Fund. Robert Atchinson and Phillip Gross disclaim beneficial ownership of the reported securities except to the extent of their pecuniary interest therein.
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTORS: | ||
| T. ROWE PRICE HEALTH SCIENCES FUND, INC. | ||
| TD MUTUAL FUNDS – TD HEALTH SCIENCES FUND | ||
| VALIC COMPANY I – HEALTH SCIENCES FUND | ||
| T. ROWE PRICE HEALTH SCIENCES PORTFOLIO | ||
| JOHN HANCOCK VARIABLE INSURANCE TRUST – HEALTH SCIENCES TRUST | ||
| JOHN HANCOCK FUNDS II – HEALTH SCIENCES FUND | ||
| By: | T. Rowe Price Associates, Inc., Investment Adviser | |
| By: | /s/ Taymour Tamaddon | |
| Name: | Taymour Tamaddon | |
| Title: | Vice President | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTORS: | ||||||||
| DEERFIELD SPECIAL SITUATIONS FUND, L.P. | ||||||||
| By: | Deerfield Mgmt, L.P. | |||||||
| General Partner | ||||||||
| By: | J.E. Flynn Capital, LLC | |||||||
| General Partner | ||||||||
| By: | /s/ David J. Clark | |||||||
| Name: | David J. Clark | |||||||
| Title: | Authorized Signatory | |||||||
| DEERFIELD SPECIAL SITUATIONS INTERNATIONAL MASTER FUND, L.P. | ||||||||
| By: | Deerfield Mgmt, L.P. | |||||||
| General Partner | ||||||||
| By: | J.E. Flynn Capital, LLC | |||||||
| General Partner | ||||||||
| By: | /s/ David J. Clark | |||||||
| Name: | David J. Clark | |||||||
| Title: | Authorized Signatory | |||||||
| DEERFIELD PRIVATE DESIGN FUND III, L.P. | ||||||||
| By: | Deerfield Mgmt III, L.P. | |||||||
| General Partner | ||||||||
| By: | J.E. Flynn Capital III, LLC | |||||||
| General Partner | ||||||||
| By: | /s/ David J. Clark | |||||||
| Name: | David J. Clark | |||||||
| Title: | Authorized Signatory | |||||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTORS: | ||
| FIDELITY SECURITIES FUND: FIDELITY OTC PORTFOLIO | ||
| By: | /s/ Stacie M. Smith | |
| Name: | Stacie Smith | |
| Title: | Deputy Treasurer | |
| FIDELITY SELECT PORTFOLIOS: BIOTECHNOLOGY PORTFOLIO | ||
| By: | /s/ Stacie M. Smith | |
| Name: | Stacie Smith | |
| Title: | Deputy Treasurer | |
| FIDELITY ADVISOR SERIES VII: FIDELITY ADVISOR BIOTECHNOLOGY FUND | ||
| By: | /s/ Stacie M. Smith | |
| Name: | Stacie Smith | |
| Title: | Deputy Treasurer | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| ROCK SPRINGS CAPITAL MASTER FUND LP | ||
| By: | Rock Springs GP LLC | |
| Its: | General Partner | |
| By: | /s/ Jeffrey Annecchino | |
| Name: | Jeffrey Annecchino | |
| Authorized Signatory | ||
| Title: | COO | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| WACHTER FAMILY TRUST | ||
| By: | /s/ Paul Wachter | |
| Name: | Paul Wachter | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Alexandre Cohen |
| ALEXANDRE COHEN |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| GREGORY D SNODGRASS & KATHLEEN M SNODGRASS TTEES OF THE GREGORY AND KATHLEEN SNODGRASS LIVING TRUST DTD 12/13/00 | ||
| By: | /s/ Gregory D. Snodgrass | |
| Name: | Gregory D. Snodgrass | |
| Title: | Trustee | |
| By: | /s/ Kathleen M. Snodgrass | |
| Name: | Kathleen M. Snodgrass | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Stonington Cox |
| STONINGTON COX |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| CONSTANCE C COX TRUST DATED JUNE 28, 2000 AS AMENDED | ||
| By: | /s/ Constance C. Cox | |
| Name: | Constance C. Cox, Trust dated June 28, 2000 as amended | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| P. ANTHONY PRICE REVOCABLE TRUST, MAY 6, 2002 | ||
| By: | /s/ P.A. Price | |
| Name: | P. Anthony Price | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| KRISTEN AND JIM WELLS FAMILY TRUST | ||
| By: | /s/ Kristen Wells | |
| Name: | Kristen Wells | |
| Title: | Trustee | |
| By: | /s/ Jim Wells | |
| Name: | Jim Wells | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Johannes Hull |
| JOHANNES HULL |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Michael C. Clark |
| MICHAEL CLARK |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Herman L. Alcalde |
| HERMAN ALCALDE |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ John McLaughlin |
| JOHN MCLAUGHLIN |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| RIVERBEND RANCH PENSION TRUST | ||
| By: | /s/ Donald Ozenbaugh | |
| Name: | Donald Ozenbaugh | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| ALAN C. & AGNÈS B. MENDELSON FAMILY TRUST | ||
| By: | /s/ Alan C. Mendelson | |
| Name: | Alan C. Mendelson | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| VP COMPANY INVESTMENTS 2008, LLC | ||
| By: | /s/ Alan C. Mendelson | |
| Name: | Alan C. Mendelson | |
| Title: | Member of Management Committee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: | ||
| GREGORY P CHAGARIS & ANTHEA C STRATIGOS TTEE CHAGARIS STRATIGOS FAM REV TST | ||
| By: | /s/ Gregory P. Chagaris | |
| Name: | Gregory P. Chagaris | |
| Title: | Trustee | |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| INVESTOR: |
| /s/ Jordan Dubnow |
| JORDAN DUBNOW |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| KEY HOLDER: |
| /s/ Tom Chalberg |
| THOMAS W. CHALBERG, JR. |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| KEY HOLDER: |
| /s/ Mark S. Blumenkranz |
| MARK S. BLUMENKRANZ |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| KEY HOLDER: |
| /s/ Steven D. Schwartz |
| STEVEN D. SCHWARTZ |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
| KEY HOLDER: |
| /s/ Mitchell H. Finer |
| MITCHELL H. FINER |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
EXHIBIT A
LIST OF KEY HOLDERS
Thomas W. Chalberg, Jr.
Mark S. Blumenkranz
Steven D. Schwartz
Mitchell Finer
LIST OF KEY HOLDERS
EXHIBIT B
LIST OF INVESTORS
Zygtech, LLC, a New Jersey Limited Liability Company
820 Morris Turnpike, Suite 301
Short Hills, NJ 07078
Carla Helene Blumenkranz Irrevocable Trust
20 Larguita Lane
Portola Valley, CA 94028
Scott Aubrey Blumenkranz Irrevocable Trust
20 Larguita Lane
Portola Valley, CA 94028
Erik Davis Blumenkranz Irrevocable Trust
20 Larguita Lane
Portola Valley, CA 94028
Marty G. Glick
511 Hampton Road
Piedmont, CA 94611
Thomas W. Chalberg, Jr.
2749 Carolina Avenue
Redwood City, CA 94061
Mark S. Blumenkranz
20 Larguita Lane
Portola Valley, CA 94028
Steven D. Schwartz
10801 W. Sunset Blvd.
Los Angeles, CA 90077
Mitchell Finer
150 Whitman Street
Stow, MA 01775
Richard and Marcia Schulman Living Trust dated 10/2/99
10750 Wilshire Boulevard, #1401
Los Angeles, CA 90024
LIST OF INVESTORS
Roberta S. Holland, Trustee of the Roberta S. Holland Revocable Trust-1996, dated 10/28/96 as amended
10800 Wilshire Blvd. #1404
Los Angeles, CA 90024
Pensco Trust Company Custodian (Joseph Oliveira), IRA 080000004747
409 Albasio Ct.
Angels Camp, CA ###-###-####
Venrock Healthcare Capital Partners, L.P.
3340 Hillview Avenue
Palo Alto, CA 94304
Attn: David Stepp
Venrock Associates VI, L.P.
3340 Hillview Avenue
Palo Alto, CA 94304
Attn: David Stepp
Venrock Partners VI, L.P.
3340 Hillview Avenue
Palo Alto, CA 94304
Attn: David Stepp
VHCP Co-Investment Holdings, LLC
3340 Hillview Avenue
Palo Alto, CA 94304
Attn: David Stepp
Regeneron Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, NY 10591
Attention: President
Copy: General Counsel
Cowen AV Investment LLC
599 Lexington Ave
New York, NY 10022
Redmile Capital Fund, LP
c/o Redmile Group, LLC
One Letterman Drive, Bldg. D, Suite D3-700
San Francisco, CA 94129
LIST OF INVESTORS
Redmile Capital Offshore Fund, Ltd.
c/o Redmile Group, LLC
One Letterman Drive, Bldg. D, Suite D3-700
San Francisco, CA 94129
Redmile Capital Offshore Fund II, Ltd.
c/o Redmile Group, LLC
One Letterman Drive, Bldg. D, Suite D3-700
San Francisco, CA 94129
Redmile Special Opportunities Fund, Ltd.
c/o Redmile Group, LLC
One Letterman Drive, Bldg. D, Suite D3-700
San Francisco, CA 94129
Sabby Healthcare Volatility Master Fund, Ltd.
c/o Sabby Management, LLC
10 Mountainview Road, suite 205
Upper Saddle River, NJ 07458
Adage Capital Partners
200 Clarendon St. 52nd floor
Boston, MA 02116
Lobstercrew & Co. fbo T. Rowe Price Health Sciences Fund, Inc.
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
Mac & Co. fbo TD Mututal Funds - TD Health Sciences Fund
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
Squidrig & Co. fbo VALIC Company I - Health Sciences Fund
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
Horizon Beach & Co. fbo T. Rowe Price Health Sciences Portfolio
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
LIST OF INVESTORS
Lamppost & Co. fbo John Hancock Variable Insurance Trust - Health Sciences Trust
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
ANNUITANT & CO. fbo John Hancock Funds II - Health Sciences Fund
T. Rowe Price Associates, Inc.
100 East Pratt Street
Baltimore, MD 21202
Attn: Andrew Baek, Vice President and Senior Legal Counsel
Deerfield Special Situations Fund, L.P.
780 3rd ave 37th Floor
New York, NY 10017
Deerfield Special Situations International Master Fund, L.P.
780 3rd ave 37th Floor
New York, NY 10017
Deerfield Private Design Fund III, L.P.
780 3rd ave 37th Floor
New York, NY 10017
Booth & Co fbo Fidelity Securities Fund: Fidelity OTC Portfolio
The Northern Trust Company
Attn: Trade Securities Processing, C-1N
801 South Canal Street
Chicago, IL 60607
Fidelity Securities Fund: Fidelity OTC Portfolio
Reference Account # 26-68304
Mag & Co fbo Fidelity Select Portfolios: Biotechnology Portfolio
Brown Brothers Harriman & Co.
525 Washington Blvd
Jersey City NJ 07310
Attn: Michael Lerman 15th Floor
Corporate Actions
Bangle & Co fbo Fidelity Advisor Series VII: Fidelity Advisor Biotechnology Fund
State Street Bank & Trust
PO Box 5756
Boston, Massachusetts 02206
Attn: Bangle & Co fbo Fidelity Advisor Series VII: Fidelity Advisor Biotechnology Fund
LIST OF INVESTORS
Rock Springs Capital Master Fund LP
650 South Exeter Street
Suite 1070
Baltimore, MD 21202
Wachter Family Trust
127 N. Cliffwood Ave.
Los Angeles, CA 90049
Alexandre Cohen
3110 Main Street, Suite #310
Santa Monica, CA 90405
Gregory D Snodgrass & Kathleen M Snodgrass TTEES of The Gregory and Kathleen Snodgrass Living Trust Dtd 12/13/00
2045 Tasso Street
Palo Alto, CA 94301
Stonington Cox
2240 Green St. Apt.3
San Francisco, CA 94123
Constance C Cox Trust dated June 28, 2000 as amended
2999 Pacific Ave., Apt 5
San Francisco, CA 94115
P. Anthony Price Revocable Trust, May 6, 2002
2999 Pacific Ave., Apt 5
San Francisco, CA 94115
Kristen and Jim Wells Family Trust
4115 Fair Oaks Ave
Menlo Park, CA 94025
Johannes Hull
29 Dearborn Street
San Francisco, CA 94110
Michael Clark
1096 Clarendon Ct
Oakland, CA 94610
Herman Alcalde
3733 Erris Ct
South San Francisco, CA 94080
LIST OF INVESTORS
John McLaughlin
265 Glen Way
Incline Village, NV 89451
Riverbend Ranch Pension Trust
630 Smith Flat Rd.
Angels Camp, CA 95222
Alan C. & Agnès B. Mendelson Family Trust
76 De Bell Drive
Atherton, CA 94027
VP Company Investments 2008, LLC
c/o Latham & Watkins LLP 555 W. 5th Street Suite 800
Los Angeles, CA 90013
GREGORY P CHAGARIS & ANTHEA C STRATIGOS TTEE
CHAGARIS STRATIGOS FAM REV TST
60 Joyce Road
Hillsborough, CA 94010
Jordan Dubnow
c/o Main Street Advisors, Inc.
3110 Main Street, Suite #310
Santa Monica, CA 90405
LIST OF INVESTORS
