AMENDMENT NO. 1 TO THETHIRD AMENDED AND RESTATED VOTING AGREEMENT

EX-4.3 5 d629509dex43.htm EX-4.3 EX-4.3

Exhibit 4.3

AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT

THIS AMENDMENT NO. 1 TO THE THIRD AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and effective as of May 31, 2013, by and among Akebia Therapeutics, Inc., a Delaware corporation (the “Company”), and the “Stockholders” as defined in that certain Third Amended and Restated Voting Agreement, dated as of May 10, 2013, by and among the Company and the Stockholders a party thereto (the “Agreement”). Capitalized terms not defined herein have the meanings given them in the Agreement.

RECITALS

WHEREAS, on May 10, 2013, the Agreement was entered into by the Company and the Investors in connection with the transactions and agreements contemplated in that certain Series C Preferred Stock Purchase Agreement by and between the Company and certain parties as listed therein, dated as of May 10, 2013 (the “Series C Stock Purchase Agreement” and the transactions and agreements contemplated therein collectively the “Series C Transaction”); and

WHEREAS, in connection with an Additional Closing (as defined in the Series C Stock Purchase Agreement) to the Series C Transaction dated May 31, 2013, the Company and the Stockholders holding more than the Appropriate Percentage (as defined in the Agreement) of the shares of the Company’s Common Stock issuable upon conversion of the outstanding shares of the Company’s Preferred Stock (as defined in the Agreement) desire to amend the Agreement in accordance with the terms and conditions more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, and other good and valuable consideration had and received, the parties hereto, upon the terms and subject to the conditions contained herein, hereby agree as follows:

1. Amendments.

(a) Section 1.2(d) is hereby amended by deleting it in its entirety and replacing it with the following: “(d) As Preferred Directors, two persons designated by Novo A/S (each, a “New Investor Director”).”

(b) Section 6.8(i) is hereby amended by deleting it in its entirety and replacing it with the following:

(i) this Agreement may not be amended or terminated and the observance of any term of this Agreement may not be waived with respect to any Stockholder without the written consent of such Stockholder unless such amendment, termination or waiver applies to all Stockholders in the same fashion, and provided that (the following provisions of this Section 6.8(i) proviso, the “Liability Proviso”) any amendment of Sections 3.3(c) and 3.3(d) hereof, as well as any amendment of this Liability Proviso, shall require, in addition to any other approvals required by this Section 6.8, also the approval of (A) Satter Investment

 

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Management, LLC so long as Satter Investment Management, LLC or any of its Affiliates holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock, (B) Novartis Bioventures Ltd. so long as Novartis Bioventures Ltd. holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock, and (C) Novo A/S so long as Novo A/S holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock;

(c) Section 6.8 (iv) is hereby amended by deleting it in its entirety and replacing it with the following:

(iv) Section 1.2(a) of this Agreement shall not be amended or waived without the written consent of Satter Investment Management, LLC, Section 1.2(b) of this Agreement shall not be amended or waived without the written consent of Novartis Bioventures Ltd., Section 1.2(c) shall not be amended or waived without the written consent of Kearny Venture Partners, Section 1.2(d) shall not be amended or waived without the written consent of Novo A/S, Section 1.2(e) shall not be amended or waived without the written consent of the holders of a majority of the outstanding shares of Common Stock (including, on an as-converted to Common Stock basis, all shares of Preferred Stock convertible into Common Stock) and Section 1.6 shall not be amended or waived without the written consent of Satter Investment Management, LLC and Novartis Bioventures Ltd. Notwithstanding the foregoing, if any amendment, modification, termination or waiver of this section or any other section or subsection of this Agreement would deprive Satter Investment Management, LLC, Novartis Bioventures Ltd., Kearny Venture Partners, or Novo A/S of its director designation rights (or of Duane Nash’s right to be named to the Board) under Section 1.2, then the written consent of such party or such person (in the case of Mr. Nash) shall be required.

2. Miscellaneous Amendments. The Agreement is amended hereby so that any reference therein to the Agreement shall be deemed to be a reference to the Agreement as amended by this Amendment.

3. Continuance of Agreement. Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect.

4. Governing Law. The laws of the State of Delaware govern all matters arising out of or relating to this Amendment, including, without limitation, its interpretation, construction, performance, and enforcement, without giving effect to such state’s conflicts of law principles or rules of construction concerning the drafter hereof.

5. Counterparts. This Amendment may be executed in two or more counterparts, including by facsimile or PDF signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

AKEBIA THERAPEUTICS, INC.
By:  

/s/ Joseph H. Gardner

 

Joseph H. Gardner, Ph.D.

President and Chief Executive Officer

Address:

9987 Carver Road, Suite 420

Cincinnati, OH 45242

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

NOVARTIS BIOVENTURES LTD.
By:  

/s/ Simon Zivi

  Name: Simon Zivi
  Title: Deputy Chairman
By:  

/s/ Rebecca White

  Name: Rebecca White
  Title: Authorized Signatory
Address:

NOVARTIS BIOVENTURES LTD.

Attn: Henri Simon Zivi

131 Front Street

Hamilton HM 12

Bermuda

 

But for mail, to:

 

Novartis BioVentures Ltd.

Attn: Henri Simon Zivi

PO Box HM 2899

Hamilton HM LX Bermuda

 

And, also send a copy to:

 

Novartis Venture Fund

Attn: Campbell Murray

Five Cambridge Center, Suite 603

Cambridge, MA 02142

 

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

VENTURE INVESTORS EARLY STAGE FUND IV LIMITED PARTNERSHIP
By:   VIESF IV GP, LLC, its General Partner
By:  

/s/ Paul M. Weiss

 

Name: Paul M. Weiss, PhD

Title: Managing Director

Address:

505 South Rosa Road

Madison, WI ###-###-####

Attn: Paul Weiss, Managing Director

Phone: (608)  ###-###-####

Fax: (608)  ###-###-####

Email: ***@***

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

TRIATHLON MEDICAL VENTURES FUND, L.P.
By:   Triathlon Medical Ventures, LLC
Its:   General Partner
By:  

/s/ John M. Rice

 

John M. Rice

Managing Partner

Address:

 

300 E-Business Way

Suite 200

Cincinnati, OH 45241

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

KEARNY VENTURE PARTNERS, L.P.
By:   /s/ Anupam Dalal
Name: Kearny Venture Associates, LLC
Title: its General Partner

 

Address:

 

Attn: Anupam Dalal

Kearny Venture Associates LLC

88 Kearny Street, Suite 1800

San Francisco, CA 94108-5530

 

KEARNY VENTURE PARTNERS ENTREPRENEURS FUND, L.P.

By:   /s/ Anupam Dalal

Name: Kearny Venture Associates, LLC

Title: its General Partner

 

Address:

 

Attn: Anupam Dalal

Kearny Venture Associates LLC

88 Kearny Street, Suite 1800

San Francisco, CA 94108-5530

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

THOMAS WEISEL HEALTHCARE VENTURE PARTNERS, L.P.

By:    Thomas Weisel Capital Management LLC

Title:  its Managing Member

By:  

/s/ Anupam Dalal

Name: Anupam Dalal

Title: Managing Director

 

Address:

 

88 Kearny Street, Suite 1800

San Francisco, CA 94108

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

ATHENIAN VENTURE PARTNERS III L.P.

By:    Athenian III, Ltd

Its:    General Partner

By:  

/s/ Karl O. Elderkin

Name: Karl O. Elderkin

Title: President

AVP OHIO TECHNOLOGY I L.P.

By:    AVP Ohio I, Ltd.

Its:    General Partner

By:  

/s/ Karl O. Elderkin

Name: Karl O. Elderkin

Title: President

 

Address:

 

340 West State Street

Unit 29/Suite 137D

Athens OH 45701

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above,

 

AGECHEM VENTURE FUND L.P.
By:   /s/ Louis Lacasse

Name: Louis Lacasse

Title: President

 

Address:

 

Attn: Louis Lacasse, President

1 Westmount Square, Suite 800

Montreal, Quebec, Canada

H3Z 2P9

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

CINCINNATI CORNERSTONE INVESTORS

AKB, LLC

By:   /s/ Robert W. Coy, Jr.
      Robert W. Coy
      President
 
Address:

30 West 3rd Street, 6th Floor

Cincinnati, OH ###-###-####

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

FAMILY AKEBIA INVESTMENTS LLC
By:   /s/ Milton Berlinski
Name: Milton Berlinski
Title:   Managing Member
 
Address:

1185 Park Avenue #11G

New York, NY 10128

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

MUNEER A. SATTER REVOCABLE TRUST
By:   /s/ Muneer A. Satter
Name: Muneer A. Satter
Title:   Trustee

 

THE SATTER FOUNDATION
By:   /s/ Muneer A. Satter
Name: Muneer A. Satter
Title:   Trustee

 

SATTER FAMILY TRUST
By:   /s/ Muneer A. Satter
Name: Muneer A. Satter
Title:   Investment Advisor

 

SATTER CHILDREN’S TRUST I
By:   /s/ Muneer A. Satter
Name: Muneer A. Satter
Title:   Investment Advisor
Address:

c/o Satter Investment Management, LLC

676 N. Michigan Avenue, Suite 4000

Chicago, IL 60611

Attn: Muneer A. Satter

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

KRISTEN HAYLER HERTEL REVOCABLE TRUST
By:   /s/ Kristen Hayler Hertel
Name: Kristen Hayler Hertel

Title:    Trustee

 

Address:
c/o Satter Investment Management, LLC 676 N. Michigan Avenue, Suite 4000 Chicago, IL 60611 Attn: Muncer A. Satter

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.

 

ANNE-CAROLE WITORT INSURANCE TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Trustee

ROSE SHEREEN FUQUA INSURANCE TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Investment Advisor

RABI H. SATTER INSURANCE TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Investment Advisor

JOHN WOOD TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Investment Advisor

 

Address:

 

c/o Satter Investment Management, LLC

676 N. Michigan Avenue, Suite 4000

Chicago, IL 60611

Attn: Muneer A. Satter

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to he executed as of the date first written above.

 

ABDUS SATTER INSURANCE TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Trustee

GORDON AND BARBARA ANNE HERTEL INSURANCE TRUST
By:   /s/ Muneer A. Satter

Name: Muneer A. Satter

Title: Trustee

 

Address:

 

c/o Satter Investment Management, LLC

676 N. Michigan Avenue, Suite 4000

Chicago, IL 60611

Attn: Muneer A. Satter

 

SIGNATURE PAGE TO AMENDMENT NO. 1 TO

THE THIRD AMENDED AND RESTATED VOTING AGREEMENT