AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT
Exhibit 4.3
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
INVESTORS RIGHTS AGREEMENT
This Amendment No. 1 to Second Amended and Restated Investors Rights Agreement (this Amendment) is made as of April 20, 2015, by and among MyoKardia, Inc., a Delaware corporation (the Company), and the parties listed on the signature pages hereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Second Amended and Restated Investors Rights Agreement, dated as of April 20, 2015, by and among the Company and the parties named therein (the Agreement).
WHEREAS, pursuant to the terms of the Purchase Agreement, the Strategic Investor may, at its option, purchase certain shares of Series B Preferred Stock in accordance with the terms of the Purchase Agreement (the Strategic Investor Investment);
WHEREAS, pursuant to Section 6.6 of the Agreement, and subject to the qualifications set forth therein, the Agreement may be amended by a written instrument executed by (i) the Company and (ii) the holders of at least a majority of the Registrable Securities then held by the Investors; and
WHEREAS, any such amendment so effected shall be binding on all Parties, even if they do not execute such consent.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree as follows:
1. The defined term Major Investor is hereby deleted in its entirety from Section 1.18 of the Agreement and replaced with the following: 1.18 Major Investor means any Investor that, individually or together with such Investors Affiliates, holds at least 1,000,000 shares of Registrable Securities (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization); provided, however, that the Strategic Investor shall only be deemed a Major Investor for purposes of Section 4 of this Agreement so long as (x) the Strategic Investor (together with its Affiliates) holds at least 1,000,000 shares of Registrable Securities (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization), (y) the Collaboration Agreement remains in full force and effect and (z) for any offering of New Securities after December 31, 2016, the Strategic Investor (or any of its Affiliates) shall have taken all actions required under Section 9.3(a) of the Collaboration Agreement on or before January 31, 2017 (the conditions in clauses (x), (y) and (z) of the foregoing, the Strategic Investor Conditions). For the avoidance of doubt, (A) if the Strategic Investor Conditions are not satisfied, the Strategic Investor shall not be deemed a Major Investor solely for purposes of Section 4 of this Agreement and (B) clause (z) shall only be a Strategic Investor Condition following December 31, 2016.
2. Section 4.1(b) of the Agreement is hereby deleted in its entirety and replaced with the following: By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Stock, Series A-1 Preferred Stock or Series B Preferred Stock and any other Derivative Securities (excluding Specified Preferred Stock) then held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Stock, Series A-1 Preferred Stock and Series B Preferred Stock and other Derivative Securities). At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a Fully Exercising Investor) of any other Major Investors failure to do likewise. During the ten (10) day period commencing after the Company
has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors, which is equal to the proportion that the Common Stock issued and held, or issuable upon conversion of Series A Preferred Stock, Series A-1 Preferred Stock and Series B Preferred Stock and any other Derivative Securities (excluding Specified Preferred Stock) then held, by such Fully Exercising Investor bears to the total number of shares of Common Stock issued and held, or issuable (directly or indirectly) upon conversion of the Series A Preferred Stock, Series A-1 Preferred Stock and Series B Preferred Stock and any other Derivative Securities (excluding Specified Preferred Stock) then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 4.1(b) shall occur within the later of one hundred twenty (120) days after the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.1(c).
3. The Agreement is hereby amended to add a new Section 4.3 as follows: 4.3 Strategic Investor Limitation. The Investors and the Company hereby agree that if the Strategic Investor exercises its right to participate in a financing of the Company as contemplated in Section 9.3 of the Collaboration Agreement, then for such financing, such participation rights will be in lieu of the Strategic Investors participation rights in an offer of New Securities as contemplated by this Section 4, and the Strategic Investor shall not be considered a Major Investor under this Section 4 solely for purposes of such financing.
4. This Amendment shall become effective upon the consummation of the Strategic Investor Investment. If the Strategic Investor Investment is not consummated on or prior to the Strategic Investor Outside Date (as defined in the Purchase Agreement) in accordance with the terms of the Purchase Agreement, this Amendment shall be void ab initio and the Agreement shall remain in full force and effect without the amendments contemplated herein.
5. Except as expressly amended herein, the Agreement shall remain in full force and effect.
6. This Amendment shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law principles that would result in the application of any law other than the law of the State of California.
7. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Amendment may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8. Sections 6.1, 6.5, 6.7, 6.8, 6.10 and 6.11 of the Agreement are hereby incorporated by reference (mutatis mutandis) as if set forth herein
[Remainder of Page Intentionally Left Blank].
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
MYOKARDIA, INC. | ||
By: | /s/ T. Anastasios Gianakakos | |
Name: T. Anastasios Gianakakos | ||
Title: President and Chief Executive Officer |
INVESTOR: | ||
FIDELITY ADVISOR SERIES VII: FIDELITY ADVISOR BIOTECHNOLOGY FUND | ||
By: | /s/ Kenneth Robins | |
Name: Kenneth Robins | ||
Title: Authorized Signatory | ||
Address: | ||
State Street Bank & Trust PO Box 5756 Boston, Massachusetts 02206 Attn: Bangle & Co fbo Fidelity Advisor Series VII: Fidelity Advisor Biotechnology Fund Email: ***@*** Fax number: 617 ###-###-#### |
INVESTOR: | ||
FIDELITY SELECT PORTFOLIOS: BIOTECHNOLOGY PORTFOLIO | ||
By: | /s/ Kenneth Robins | |
Name: Kenneth Robins | ||
Title: Authorized Signatory | ||
Address: | ||
Brown Brothers Harriman & Co. 525 Washington Blvd Jersey City NJ 07310 Attn: Michael Lerman 15th Floor Corporate Actions Email: ***@*** Fax number: 617 ###-###-#### | ||
INVESTOR: | ||||
THIRD ROCK VENTURES II, L.P. | ||||
By: Third Rock Ventures GP II, L.P., its general partner | ||||
By: TRV GP II, LLC, its general partner | ||||
By: | /s/ Kevin Gillis | |||
Name: Kevin Gillis | ||||
Title: CFO | ||||
Address: | 29 Newbury Street; 3rd Floor | |||
Boston, MA 02116 | ||||
Phone: (617) 585-2000 | ||||
Fax: (617)  ###-###-#### |
INVESTOR: | ||||
THIRD ROCK VENTURES III, L.P. | ||||
By: Third Rock Ventures GP II, L.P., its general partner | ||||
By: TRV GP II, LLC, its general partner | ||||
By: | /s/ Kevin Gillis | |||
Name: Kevin Gillis | ||||
Title: CFO | ||||
Address: | 29 Newbury Street; 3rd Floor | |||
Boston, MA 02116 | ||||
Phone: (617) 585-2000 | ||||
Fax: (617)  ###-###-#### |
SCHEDULE A
Name and Contact of Investors
THIRD ROCK VENTURES II, L.P.
29 Newbury Street; 3rd Floor
Boston, MA 02116
Phone: (617 ###-###-####
Fax: (617)  ###-###-####
http://www.thirdrockventures.com
ALEXANDRIA EQUITIES, LLC,
Alexandria Real Estate Equities, Inc.
385 East Colorado Blvd., Suite 299
Pasadena, CA 91101
Attn: Natasha Moon
Phone: (626)  ###-###-####, x. 1619
Fax: (626)  ###-###-####
http:/ /www.are.com
THIRD ROCK VENTURES III, L.P.
29 Newbury Street; 3rd Floor
Boston, MA 02116
Phone: (617 ###-###-####
Fax: (617)  ###-###-####
http://www.thirdrockventures.com
AVENTIS INC.
c/o Sanofi S.A.
54 rue La Boetie, 75008 Paris, France
Facsimile: +33 1 53 77 44 53
Attention: Vice President, Legal Operations
BRIDGEBIO LLC
1 Maritime Plaza, Suite 1940
San Francisco, CA 94111
CORMORANT ASSET MANAGEMENT HEALTHCARE MASTER FUND, LP
200 Clarendon Street 52nd Floor
Boston, MA 02116
COWEN MK INVESTMENT LLC
599 Lexington Avenue
New York, NY 10022
Attn: Owen Littman
FIDELITY SELECT PORTFOLIOS: BIOTECHNOLOGY PORTFOLIO
Brown Brothers Harriman & Co.
525 Washington Blvd
Jersey City NJ 07310
Attn: Michael Lerman 15th Floor
Corporate Actions
Email: ***@***
Fax number: 617 ###-###-####
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
Email: ***@***
Fax number: 617 ###-###-####
PERCEPTIVE LIFE SCIENCES MASTER FUND LTD
499 Park Avenue, 25th Floor
New York, NY 10022
Attn: James H. Mannix
Phone: (646)  ###-###-####
Fax: (646)  ###-###-####
TITAN PERC, LLC
750 Washington Blvd., 10th Floor
Stamford, CT 06901
Attn: Darren Ross
Phone: (203)  ###-###-####
Email: ***@***
Fax: (203)  ###-###-####
Casdin Partners Master Fund LP
1345 Avenue of the Americas, Suite 1140
New York, NY 10019