AMENDMENT NUMBER ONE TO SECOND AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

EX-4.7 9 d629509dex47.htm EX-4.7 EX-4.7

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 state’s 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 CHILDREN’S 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