THIS NOMINATING AGREEMENT (this Agreement), dated as of June 28, 2019, is by and between IGM Biosciences, Inc., a Delaware corporation (the Company) Redmile Biopharma Investments II, L.P., RAF, L.P. and Redmile Strategic Master Fund, LP (each an Investor and together, the Investors).
WHEREAS, the Company and the Investors are parties to that certain Series C Preferred Stock Purchase Agreement dated of even date herewith (the Purchase Agreement) pursuant to which the Investors are purchasing shares of Series C Preferred Stock (Series C Shares);
WHEREAS, in order to induce the Investors to invest funds in the Company pursuant to the Purchase Agreement, the Investors and the Company hereby agree that this Agreement shall set forth certain rights and obligations with respect to the shares of the Companys capital stock beneficially owned by the Investors.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings:
(a) Affiliate has the meaning given to that term in Rule 12b-2 under the Securities Exchange Act of 1934, as amended.
(b) Board of Directors means the Board of Directors of the Company.
(c) Bylaws means the Bylaws of the Company, as may be amended, restated or otherwise modified from time to time.
(d) Common Stock means shares of the Companys Common Stock, par value $0.01 per share.
(e) IPO means the Companys first underwritten public offering of its Common Stock under the Securities Act of 1933, as amended.
2. Board Representation.
(a) Subject at all times to Sections 2(b) and 3(n) herein, during the period beginning at the closing of the IPO until the earliest of (a) the twelfth anniversary of the date of the closing of the IPO; (b) such time as the Investors and their respective Affiliates no longer beneficially own, collectively, at least 6,250,000 Series C Shares or the equivalent of any successor securities issued upon conversion of such Series C Shares (including shares of voting common stock issued upon conversion of non-voting common stock issued upon conversion of the Series C Shares) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such Series C Shares), or (c) following the third year anniversary of the IPO, such time as the Investors collectively hold less than 5% of the as-converted securities of the Company, the Company shall support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable law, to recommend and include in the slate of nominees recommended to the Companys stockholders for election as directors of the Company at each annual or special meeting of the Companys stockholders at which directors are to be