Amendment No. 2 to the Amended and Restated Investors Rights Agreement among the Company and certain of its stockholders and the holders of the 2019 Notes, dated May 25, 2018, as amended
EXECUTION VERSION
Exhibit 10.1
PRECISION BIOSCIENCES, INC.
AMENDMENT NO. 2 TO THE
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This Amendment No. 2 to the Amended and Restated Investors’ Rights Agreement (this “Amendment”) is entered into as of February 3, 2020 by and among Precision BioSciences, Inc., a Delaware corporation (the “Company”), and certain stockholders of the Company party to the Investors’ Rights Agreement (as defined below) (collectively, the “Investors”). Capitalized terms used and not defined herein shall have the meaning set forth in the Investors’ Rights Agreement.
WHEREAS, the Company and the Investors previously entered into that certain Amended and Restated Investors’ Rights Agreement, dated as of May 25, 2018, as amended (together with all schedules and exhibits thereto, the “Investors’ Rights Agreement”);
WHEREAS, Section 4.6 of the Investors’ Rights Agreement provides that the Investors’ Rights Agreement generally may be amended with the written consent of (i) the Company and (ii) the holders of at least sixty percent (60%) of the Registrable Securities (as defined in the Investors’ Rights Agreement) issued or issuable upon conversion of the Company’s Preferred Stock and the Notes, voting together as a single class and on an as-converted basis (the “Required Holders”);
WHEREAS, the Investors whose signatures appear on the signature pages attached hereto constitute the Required Holders under the Investors’ Rights Agreement necessary to amend the Investors’ Rights Agreement; and
WHEREAS, the Company and the Investors desire to amend the Investors’ Rights Agreement as set forth below.
NOW THEREFORE, the parties hereto agree as follows:
1.Amendments.
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| (a) | The definition of “Registrable Securities” in clause (p) of Section 1 of the Investors’ Rights Agreement is hereby deleted in its entirety and replaced with the following new definition: |
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“Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Preferred Stock and the Notes, and any Common Stock issued as (or issuable upon conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, in exchange for or in replacement of such Preferred Stock, (ii) the Common Holder Registrable Securities, provided, however, that such Common Holder Registrable Securities shall not be deemed Registrable Securities and the Common Holders shall not be deemed Holders for the purposes of Sections 2.1 and 2.11 and (iii) any Common Stock of the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange for, or in replacement of, the shares referenced in (i) and (ii) above, provided, however, that Registrable Securities shall exclude, in all cases, (A) any Registrable Securities sold by a Person in a transaction in which such Person’s rights under Section 2 of this Agreement are not assigned and (B) any shares for which registration rights have terminated pursuant to Section 2.13 of this Agreement.
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| (b) | The definition of “Required Holders” in clause (q) of Section 1 of the Investors’ Rights Agreement is hereby deleted in its entirety and replaced with the following new definition: |
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“Required Holders” means the written consent or affirmative vote of the holders of a majority of the Registrable Securities then outstanding held by the Investors.
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| (c) | Section 2.13 of the Investors’ Rights Agreement is hereby deleted in its entirety and replaced with the following new Section 2.13: |
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2.13 Termination of Registration Rights. No Holder shall be entitled to exercise any right provided for in this Section 2 upon the earliest to occur of: (a) five (5) years following the consummation of the Initial Offering, (b) such time at which all shares held by such Holder (together with any Affiliate of the Holder with whom such Holder must aggregate its sales under Rule 144) can be sold in any three (3) month period without registration or volume limitations in compliance with Rule 144 or another similar exemption or (c) such time at which such Holder is not an Affiliate of the Company.
2.Effect of Amendment. Except as expressly set forth herein, no other terms or provisions of the Investors’ Rights Agreement are amended or modified, and all such provisions and terms are hereby ratified and confirmed in all respects.
3.Governing Law. This Amendment shall be governed in all respects by the laws of the State of Delaware without regard to choice of laws or conflict of laws provisions thereof.
4.Counterparts. This Amendment may be executed in any number of counterparts and signatures may be delivered by facsimile, each of which may be executed by less than all parties, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
COMPANY:
PRECISION BIOSCIENCES, INC.
By: /s/ Matt Kane
| Name: Matt Kane |
| Title: CEO |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
/s/ Matthew Kane
| Matthew Kane |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
/s/ Derek Jantz
| Derek Jantz |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
/s/ Jeff Smith
| Jeff Smith |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
ADAGE CAPITAL PARTNERS, LP
| By:Adage Capital Partners, GP, LLC |
| Its: General Partner |
By:Adage Capital Advisors, LLC
| Its: Managing Member |
By: /s/ Dan Lehan
| Name: Dan Lehan |
| Title: CEO |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
AMGEN INVESTMENTS LTD.
| By: /s/ Janis C. Naeve |
| Name: Janis C. Naeve |
| Title: Executive Dir., Business Development |
AMGEN VENTURES, LLC
| By: /s/ Janis C. Naeve |
| Name: Janis C. Naeve |
Title: Executive Dir., Business Development
Title: Executive Dir., Business Development
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
MERIDIAN GROWTH FUND
| By:ArrowMark Colorado Holdings, LLC |
| Its: Investment Adviser |
| By: /s/ David Corkins |
| Name: David Corkins |
| Title: Managing Member |
MERIDIAN SMALL CAP GROWTH FUND
| By:ArrowMark Colorado Holdings, LLC |
| Its: Investment Adviser |
| By: /s/ David Corkins |
| Name: David Corkins |
| Title: Managing Member |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
ARROWMARK LIFE SCIENCE FUND, LP
| By:AMP Life Science GP, LLC |
| Its: General Partner |
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
ARROWMARK FUNDAMENTAL OPPORTUNITY FUND, L.P.
| By:ArrowMark Partners GP, LLC |
| Its: General Partner |
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
LOOKFAR INVESTMENTS, LLC
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
CF ASCENT LLC
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
THB IRON ROSE, LLC
| By:ArrowMark Colorado Holdings, LLC |
| Its: Investment Adviser |
| By: /s/ David Corkins |
| Name: David Corkins |
| Title: Managing Member |
THB IRON ROSE, LLC LIFE SCIENCE PORTFOLIO
| By:ArrowMark Colorado Holdings, LLC |
| Its: Investment Adviser |
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
IRON HORSE INVESTMENTS, LLC
| By:ArrowMark Colorado Holdings, LLC |
| Its: Investment Adviser |
| By: /s/ David Corkins |
| Name: David Corkins |
Title: Managing Member
Title: Managing Member
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
/s/ Tony Yao
Tony Yao
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
BAXALTA US INC.
| By: /s/ David S. Bailey |
| Name: David S. Bailey |
| Title: Assistant Treasurer |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
BRACE PHARMACEUTICALS LLC
| By: /s/ Todd Brady |
| Name: Todd Brady |
| Title: Director of Finance & Investments |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
CORMORANT PRIVATE HEALTHCARE FUND I, LP
By:Cormorant Private Healthcare GP, LLC
Its: General Partner
By: /s/ Bihua Chen
Name: Bihua Chen
Title: The Managing Member of the GP
CORMORANT GLOBAL HEALTHCARE MASTER FUND, LP
By:Cormorant Global Healthcare GP, LLC
Its: General Partner
By: /s/ Bihua Chen
Name: Bihua Chen
Title: The Managing Member of the GP
CRMA SPV, LP
By: /s/ Bihua Chen
By: Cormorant Asset Management, LP, its Attorney-In-Fact
By: Bihua Chen, CEO/Managing Member
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
COWEN HEALTHCARE INVESTMENTS II LP
By:Cowen Healthcare Investments II GP LLC
Its: General Partner
By: /s/ Tim Anderson
Name: Tim Anderson
Title: Managing Director
CHI EF II LP
By:Cowen Healthcare Investments II GP LLC
Its: General Partner
By: /s/ Tim Anderson
Name: Tim Anderson
Title: Managing Director
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
G LTP LLC
By: /s/ Steven M. Bischoff
Name: Steven M. Bischoff
Title: Investment Manager
DUMAC, Inc., Authorized Agent
By: /s/ Jannine M. Lall
Name: Jannine M. Lall
Title:Head of Finance & Controller
DUMAC, Inc., Authorized Agent
G HSP LLC
By: /s/ Steven M. Bischoff
Name: Steven M. Bischoff
Title: Investment Manager
DUMAC, Inc., Authorized Agent
By: /s/ Jannine M. Lall
Name: Jannine M. Lall
Title:Head of Finance & Controller
DUMAC, Inc., Authorized Agent
G JBD LLC
By: /s/ Steven M. Bischoff
Name: Steven M. Bischoff
Title: Investment Manager
DUMAC, Inc., Authorized Agent
By: /s/ Jannine M. Lall
Name: Jannine M. Lall
Title:Head of Finance & Controller
DUMAC, Inc., Authorized Agent
G ERP LLC
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| acting through the Duke University Defined Benefit Plan Master Trust |
By: DUMAC, Inc., as authorized agent of the trustee of the master trust
By: /s/ Steven M. Bischoff
Name: Steven M. Bischoff
Title: Investment Manager
DUMAC, Inc., Authorized Agent
By: /s/ Jannine M. Lall
Name: Jannine M. Lall
Title:Head of Finance & Controller
DUMAC, Inc., Authorized Agent
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
FRANKLIN TEMPLETON INVESTMENT FUNDS – FRANKLIN BIOTECHNOLOGY DISCOVERY FUND
FRANKLIN STRATEGIC SERIES – FRANKLIN BIOTECHNOLOGY DISCOVERY FUND
By:Franklin Advisers, Inc.
Its: Investment Manager
By: /s/ Evan McCulloch
Name: Evan McCulloch
Title: Vice President
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
OCV FUND I, L.P.
By:OCV I GP, LLC
Its: General Partner
By: /s/ Hemi Zucker
Name: Hemi Zucker
Title: Managing Principal
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
OSAGE UNIVERSITY PARTNERS II, LP
| By:Osage University GP II, LLC |
| Its: General Partner |
| By: /s/ William Harrington |
| Name: William Harrington |
| Title: Member |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTORS:
PONTIFAX GLOBAL FOOD AND AGRICULTURE TECHNOLOGY FUND, L.P.
| By:Benjamin Belldegrun |
| Its: Managing Member |
| By: /s/ Benjamin Belldegrun |
| Name: Benjamin Belldegrun |
| Title: Managing Partner |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
RFS PARTNERS, LP
| By:RFS & Associates, LLC |
| Its: General Partner |
By: /s/ Raymond F. Schinazi
| Name: Raymond F. Schinazi |
| Title: Manager of RFS Associates, LLC |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
RIDGEBACK CAPITAL INVESTMENTS LP
By:Ridgeback Capital Management LP
Its: Investment Manager
By: /s/ Christopher A. Nonas
Name: Christopher A. Nonas
Title: CFO
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
VENBIO GLOBAL STRATEGIC FUND, L.P.
| By:venBio Global Strategic GP, L.P. |
| Its: General Partner |
| By:venBio Global Strategic GP, Ltd. |
| Its: General Partner |
By: /s/ Robert Adelman
| Name: Robert Adelman |
| Title: Director |
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
INVESTOR:
VIVO PANDA FUND, L.P.
By:Vivo Panda, LLC
Its: General Partner
By: /s/ Mahendra Shah
Name: Mahendra Shah
Title: Managing Member
[Signature Page to Amendment No. 2 to Investors’ Rights Agreement]
