AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 10.4
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 1 (the “Amendment”) to Third Amended and Restated Investor Rights Agreement is made as of this 20th day of August, 2010, by and among Achillion Pharmaceuticals, Inc. (the “Company”), and certain holders of the Company’s common stock, $.001 par value per share (the “Holders”), who are parties to the Third Amended and Restated Investor Rights Agreement, dated as of August 11, 2008 (the “XXX”).
WHEREAS, the Company wishes to terminate several provisions of the XXX; and
WHEREAS, the parties hereto wish to facilitate the termination but provide for certain rights as set forth herein to survive such termination.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the undersigned, who represent holders of at least two-thirds of the Conversion Shares (as defined in the XXX) held by the Holders, hereby agree as follows:
| 1. | The definition of “Registration Rights Agreement” in Section 1 of the XXX is hereby deleted in its entirety and the following is inserted in lieu thereof: |
““Registration Rights Agreement” means that certain Registration Rights Agreement, dated on or about August 18, 2010, by and among the Company and the parties named therein (the “Purchasers”).”
| 2. | The following definition is hereby added to Section 1 of the Agreement: |
““Effective Date” means the date all of the Registrable Securities (as defined in the Registration Rights Agreement) have been registered pursuant to effective registration statements filed pursuant to the Registration Right Agreement.””
| 3. | Sections 4, 5, 10 and 11 of the XXX are hereby deleted in their entirety and shall have no further force or effect. |
| 4. | Section 14(f) of the Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof: |
“(f) The Company shall have no obligations pursuant to Section 6 with respect to any request or requests for registration made by any Holder after October 25, 2013.”
| 5. | Section 14(h) of the Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof: |
“(h) Notwithstanding anything to the contrary set forth in this Agreement, a Holder shall cease to be a Holder for purposes of this Agreement when such Holder no longer holds Restricted Stock.”
| 6. | Any references to Sections 4 or 5 of the XXX are hereby deleted from the XXX. |
| 7. | The Company represents and warrants to each Holder as follows: |
(i) The execution, delivery and performance of this Amendment by the Company have been duly authorized by all requisite corporate action and will not violate any provision of law, any order of any court or other agency of government, the Charter or By-laws of the Company or any provision of any indenture, agreement or other instrument to which it or any of its properties or assets is bound, conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company.
(ii) This Amendment has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to (A) laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of law governing specific performance, injunctive relief or other equitable remedies.
| 8. | Except as amended hereby, the XXX shall remain in full force and effect. |
| 9. | This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to principles of conflicts of laws. |
| 10. | This Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which shall constitute the same document. |
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.
| ACHILLION PHARMACEUTICALS, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx |
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| Name: | Xxxxxxx X. Xxxxxxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| Address: |
000 Xxxxxx Xxxxxx | |
| Xxx Xxxxx, XX 00000 |
| HOLDERS: | ||||||
| ADVENT HEALTH CARE & LIFE SCIENCES II LIMITED PARTNERSHIP |
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| By: | Advent International Limited Partnership, General Partner |
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| By: | Advent International Corporation, | |||||
| General Partner | ||||||
| By: | /s/ Xxxxx Fisherman |
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| Name: | Xxxxx Fisherman | Dated: August 20, 2010 | ||||
| Title: | Attorney-in-Fact | |||||
| ADVENT HEALTH CARE AND LIFE SCIENCES II BETEILIGUNG GMBH & CO. KG |
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| By: | Advent International Limited Partnership, General Partner |
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| By: | Advent International Corporation, | |||||
| General Partner | ||||||
| By: | /s/ Xxxxx Fisherman |
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| Name: | Xxxxx Fisherman | |||||
| Title: | Attorney-in-Fact | |||||
| Dated: August 20, 2010 | ||||||
| ADVENT PARTNERS HLS II LIMITED PARTNERSHIP | ||||||
| By: | Advent International Corporation, General Partner | |||||
| By: | /s/ Xxxxx Fisherman |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx Fisherman | |||||
| Title: | Attorney-in-Fact | |||||
| ADVENT PARTNERS LIMITED PARTNERSHIP | ||||||
| By: | Advent International Corporation, General Partner |
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| By: | /s/ Xxxxx Fisherman |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx Fisherman | |||||
| Title: | Attorney-in-fact | |||||
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Dated: August , 2010 | |||||
| Xxxxx X. Xxxxxxx | ||||||
| ATLAS VENTURE ENTREPRENEURS’ FUND V, L.P. | ||||||
| ATLAS VENTURE FUND V, L.P. | ||||||
| ATLAS VENTURE PARALLEL FUND V-A, C.V. | ||||||
| By: | Atlas Venture Associates V, L.P., their General Partner |
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| By: | Atlas Venture Associates V, Inc., its General Partner |
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| By: | /s/ Xxxx-Xxxxxxxx Xxxxxxx |
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| Name: | Xxxx-Xxxxxxxx Xxxxxxx | |||||
| Title: | Vice President | |||||
| Dated: August 20, 2010 | ||||||
| BEAR XXXXXXX HEALTH INNOVENTURES EMPLOYEE FUND, L.P. |
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| By: | /s/ Xxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Managing Director on Behalf of the General Partner | |||||
| BEAR XXXXXXX HEALTH INNOVENTURES OFFSHORE, L.P. |
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| By: | /s/ Xxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Managing Director on Behalf of the General Partner | |||||
| BEAR XXXXXXX HEALTH INNOVENTURES, L.P. | ||||||
| By: | /s/ Xxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Managing Director on Behalf of the General Partner | |||||
| BSHI MEMBERS, L.L.C. |
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| By: | /s/ Xxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Managing Director on Behalf of the General Partner | |||||
| BX, L.P. |
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| By: | /s/ Xxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Managing Director on Behalf of the General Partner | |||||
| CAPITAL VENTURES INTERNATIONAL |
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| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| COMMUNITY INVESTMENT PARTNERS IV L.P., LLLP |
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| By: | CIP Management L.P., LLLP, its managing general partner |
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| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| CONNECTICUT EMERGING ENTERPRISES, L.P. | ||||||
| By: | Emerging Enterprises Management LLC, its General Partner | |||||
| By: | Connecticut Innovations, Incorporated, its Sole Member | |||||
| By: | /s/ Xxxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | President & Executive Director | |||||
| CONNECTICUT INNOVATIONS, INCORPORATED | ||||||
| By: | /s/ Xxxxx Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | President & Executive Director | |||||
| CRESTWOOD CAPITAL MASTER FUND LTD. | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| CRESTWOOD CAPITAL PARTNERS II, L.P. | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
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Dated: August , 2010 | |||||
| Xxx Xxxxxxxxxxxx | ||||||
| GE CAPITAL CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Duly Authorized Signatory | |||||
| GILEAD SCIENCES, INC. | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| H&D INVESTMENTS 2001 | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| INTERNATIONAL BIOTECHNOLOGY TRUST PLC. | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| KBL HEALTHCARE, L.P. | ||||||
| By: | /s/ Xxxxxxx Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
| KBL PARTNERSHIP, L.P. | ||||||
| By: | /s/ Xxxxxxx Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
|
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Dated: August , 2010 | |||||
| Xxxxx X. Xxxxxxx | ||||||
| OAK INVESTMENT PARTNERS VIII, LIMITED PARTNERSHIP | ||||||
| By: | Oak Associates VIII, LLC, its General Partner | |||||
| By: |
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Dated: August , 2010 | ||||
| A Member | ||||||
| OAK VIII AFFILIATES FUND , LIMITED PARTNERSHIP | ||||||
| By: | Oak Associates VIII, LLC, its General Partner | |||||
| By: |
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Dated: August , 2010 | ||||
| A Member | ||||||
| OAKWOOD MEDICAL INVESTORS III (QP), L.L.C. | ||||||
| By: | Oakwood Medical Management III, L.L.C., its Manager |
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| By: | /s/ Xxxx X. Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx X. Xxxxx, M.D. | |||||
| Title: | President | |||||
| OAKWOOD MEDICAL INVESTORS III, L.L.C. | ||||||
| By: | Oakwood Medical Management III, L.L.C., its Manager |
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| By: | /s/ Xxxx X. Xxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx X. Xxxxx, M.D. | |||||
| Title: | President | |||||
|
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Dated: August , 2010 | |||||
| Xxxxxxx Xxxxxxxxxxxx | ||||||
| PGE INVESTMENTS 2002, LLC | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
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Dated: August , 2010 | |||||
| Xxxxxxx X. Xxxxxx | ||||||
| POUND CAPITAL CORPORATION | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
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Dated: August , 2010 | |||||
| Xxxxx Xxxxxx | ||||||
| XXXXXX INVESTMENT HOLDINGS III, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Managing Member | |||||
| XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES FUND II GROUP CO-INVESTMENT SCHEME |
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| By: | SITCO Nominees Ltd. – VC 01903, its Nominee | |||||
| By: | /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxxx Xxxxx Xxxxxxx | |||||
| Title: | Authorized Signatures | |||||
| XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP1 |
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| By: | Xxxxxxxx Venture Managers Inc., its General Partner | |||||
| By: | /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxxx Xxxxx Xxxxxxx | |||||
| Title: | Authorized Signatures | |||||
| XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP2 | ||||||
| By: | Xxxxxxxx Venture Managers Inc., its General Partner | |||||
| By: | /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxxx Xxxxx Xxxxxxx | |||||
| Title: | Authorized Signatures | |||||
| XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP3 |
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| By: | Xxxxxxxx Venture Managers Inc., its General Partner | |||||
| By: | /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxxx Xxxxx Xxxxxxx | |||||
| Title: | Authorized Signatures | |||||
| XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES FUND II STRATEGIC PARTNERS L.P. |
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| By: | Xxxxxxxx Venture Managers Inc., its General Partner | |||||
| By: | /s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxxx Xxxxx Xxxxxxx | |||||
| Title: | Authorized Signatures | |||||
| XXXXXXXX VENTURES INVESTMENTS LIMITED | ||||||
| By: | SV (Nominees) Limited, its Nominee | |||||
| By: | /s/ Xxxx Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Director | |||||
| SG VENTURES I, L.P. | ||||||
| By: | Société Générale Investment Corporation, its General Partner |
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| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
| TRINITY EQUITY INVESTMENTS I, LLC | ||||||
| By: | /s/ Sengal Selassie |
Dated: August 20, 2010 | ||||
| Name: | Sengal Selassie | |||||
| Title: | President | |||||
| XXXXXXX FINANCIAL CORPORATION | ||||||
| By: | /s/ Xxxxxx Xxxxxx |
Dated: August 20, 2010 | ||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | EVP – Commercial Banking | |||||
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Dated: August , 2010 | |||||
| Xxxxxxxxxxx Xxxxx | ||||||
| YALE UNIVERSITY | ||||||
| By: |
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Dated: August , 2010 | ||||
| Name: | ||||||
| Title: | ||||||
