AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit 4.7
AMENDMENT NUMBER ONE TO
SECOND AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
THIS AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (the Amendment) is made and effective as of July 9, 2012, by and among AKEBIA THERAPEUTICS, INC., a Delaware corporation (the Company), and those Investors executing and delivering a counterpart signature page hereto. Capitalized terms not defined herein have the meanings given them in that certain Second Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of April 6, 2011, by and among the Company, the Investors and the Major Holders (as amended, the Agreement).
WHEREAS, the Company and the Investors desire to amend the Agreement to modify the definition of Preferred Stock and add a definition for the Series X Preferred Stock of the Company; and
WHEREAS, the Investors hold more than the Appropriate Percentage of the shares of Common Stock required to amend the Agreement pursuant to the provisions of Section 6.8 of the Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth and set forth in the Agreement, the parties hereby agree as follows:
1. Amendment.
(a) The definition of Preferred Stock shall be deleted in its entirety and replaced with the following: Preferred Stock means all shares of Series A Preferred Stock, Series B Preferred Stock, and Series X Preferred Stock.
(b) A new definition of Series X Preferred Stock shall be added to the Agreement and shall read as follows: Series X Preferred Stock shall mean shares of the Series X Preferred Stock of the Company, par value $0.00001 per share.
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 states conflicts of law principles or rules of construction concerning the drafter hereof.
6. 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]
2
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: | ||
Suite 420, | ||
9987 Carver Road, | ||
Cincinnati, OH 45242 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
JOSEPH H. GARDNER | ||
By: | /s/ JOSEPH H. GARDNER | |
Address: | ||
4060 Boomer Road | ||
Cincinnati, OH 45247 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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/ H. S. Zivi | |
Name: | H. S. 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 NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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) 441-2700 | ||
Fax: (608) 441-2727 | ||
Email: ***@*** |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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 NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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 NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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 NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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. | ||
/s/ Karl Elderkin | ||
By: | Karl Elderkin, President | |
Name: | Athenian III, Ltd | |
Title: | General Partner | |
Address: | ||
20 East Circle Drive, #37146 | ||
Suite 229 | ||
Athens, OH 45701 |
AVP OHIO TECHNOLOGY I L.P. | ||
By: | AVP Ohio I, Ltd. | |
Its: | General Partner | |
By: | /s/ Karl O. Elderkin | |
Karl O. Elderkin | ||
President | ||
Address: | ||
20 East Circle Drive, #37146 | ||
Suite 229 | ||
Athens, OH 45701 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
CINCYTECH FUND I, LLC | ||
By: | /s/ Robert W. Coy, Jr | |
Robert W. Coy, Jr | ||
President | ||
Address: | ||
30 West 3rd Street, 6th Floor | ||
Cincinnati, OH ###-###-#### |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
GITANA FAMILY TRUST, ELIZABETH C. ARMITAGE TRUSTEE | ||
By: | /s/ Elizabeth C. Armitage | |
Elizabeth C. Armitage | ||
Trustee | ||
Address: | ||
2207 Upland Place | ||
Cincinnati, OH 45206 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
TRI-STATE GROWTH CAPITAL FUND II, L.P. | ||
By: | Tri-State Ventures II, LLC | |
Its: | General Partner | |
By: | Fort Washington Investment Advisors, Inc. | |
Its: | Managing Member | |
By: | /s/ Christopher L. Baucom | |
Christopher L. Baucom | ||
Managing Director | ||
By: | /s/ Maribeth S. Rahe | |
Maribeth S. Rahe | ||
President and Chief Executive Officer | ||
Address: | ||
303 Broadway, Suite 1200 Cincinnati, OH 45202 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
SIGVION FUND I, LP | ||
By: | /s/ J.P. Fairbank | |
J.P. Fairbank | ||
Founding Partner | ||
Address: | ||
1970 N HALSTED ST, 3RD FLOOR CHICAGO, IL 60614 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
GARDNER FAMILY TRUST, JOHN D. GARDNER TRUSTEE | ||
By: | /s/ John D. Gardner | |
John D. Gardner | ||
Trustee | ||
Address: | ||
111 Pine Court Bastop, TX 78602 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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 CHILDRENS TRUST | ||
By: | /s/ Muneer A. Satter | |
Name: | Muneer A. Satter | |
Title: | Investment Advisor | |
Address: 419 Sheridan Road Winnetka, IL 60093 Attn: Muneer A. Satter |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
IAN A.W. HOWES, IRA, STERLING TRUST CUSTODIAN | ||
By: | /s/ IAN A. W. HOWES | |
Name: | IAN A. W. HOWES | |
Title: |
| |
Address: 219 Stratford Dr. Chapel Hill, NC 27516 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
DIANE H. JANUSZ TRUST | ||
By: | /s/ John Janusz | |
Name: | John Janusz | |
Title: | Trustee | |
Address:
7385 Desert Spring Ct. West Chester, OH 45069 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE 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: | AgeChem Financial Inc., its General Partner | |
By: | /s/ Louis Lacasse | |
Name: | Louis Lacasse | |
Title: | President | |
Address:
1 Westmount Square, Suite 800 Montreal, Quebec, Canada H3Z 2P9 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
/s/ Kevin Peters |
Kevin Peters |
Address: 6100 Miami Rd. Cincinnati, OH 48243 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
BLUE CHIP VALIDATION FUND, LTD. | ||
By: | /s/ John McIlwraith | |
Name: | John McIlwraith | |
Title: | Managing Director | |
Address:
1100 Chiquita Center 250 East Fifth Street Cincinnati, OH 45202 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
QCA FIRST FUND II | ||
By: | /s/ John Habbert | |
Name: | John Habbert | |
Title: | Manager | |
Address: 6393 Grand Vista Avenue Cincinnati, OH 45213 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
/s/ Robert Shalwitz |
Robert Shalwitz |
Address:
2549 Bryden Road Bexley, OH 43209 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
FRED SHALWITZ TRUST, ROBERT SHALWITZ, TRUSTEE | ||
By: | /s/ Robert Shalwitz | |
Name: | Robert Shalwitz | |
Title: | Trustee | |
Address:
2549 Bryden Road Bexley, OH 43209 |
SIGNATURE PAGE TO AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT