NOTICE AND WAIVER
Exhibit 99.5
November 22, 2021
Reference is made to that certain Fourth Amended and Restated Investors’ Rights Agreement, dated as of August 27, 2019, as amended by Amendment No. 1 on November 10, 2020, as further amended by Amendment No. 2 on December 7, 2020, and as further amended by Amendment No. 3 on May 31, 2021, by and among Progenity, Inc., a Delaware corporation (the “Company”), and certain investors party thereto (the “Investors’ Rights Agreement”).
Notice of Registration of Shares.
The Company is considering an “at-the-market” offering of its shares of common stock (the “Common Stock”) pursuant to its registration statement on Form S-3 (the “ATM Offering”) filed with the Securities and Exchange Commission, in accordance with the Securities Act of 1933, as amended (the “Securities Act”) on July 30, 2021 and declared effective on August 6, 2021 (the “Registration Statement”). Pursuant to Subsection 2.2 of the Investors’ Rights Agreement, the Company is obligated to (i) provide notice to Investors of the Company’s intention if the Company proposes to register any of its Common Stock under the Securities Act in connection with the public offering of such securities and (ii) cause to be registered all of the Registrable Securities (as defined in the Investors’ Rights Agreement) that Investors have requested to be included in such registration, subject to the provisions of Subsection 2.7 of the Investors’ Rights Agreement. Notice is hereby being delivered by the Company pursuant to Subsection 2.2 of the Investors’ Rights Agreement.
Confirmation of Certain Matters; Waivers.
Subsection 4.4 of the Investors’ Rights Agreement allows any term of the Investors Rights’ Agreement to be waived by written consent of the holders of a majority of Registrable Securities outstanding. By countersigning below, each of the undersigned Investors (i) acknowledges receipt of notice of the ATM Offering provided by the Company pursuant to Section 2.2 of the Investors’ Rights Agreement; and (ii) waives its rights under Section 2.2 of the Investors’ Rights Agreement to request that the Company include any Registrable Securities in the Registration Statement. Notwithstanding the foregoing, the waivers provided above shall be effective only as to the ATM Offering and shall in no way affect or impair any of the undersigned Investors’ other rights under the Investors’ Rights Agreement or any other agreement between the Company and any of the undersigned Investors.
Each of the signatories hereto understands that this waiver shall be automatically terminated and be of no further force and effect if (a) the Company notifies the sales agents of the ATM Offering that it does not intend to proceed with the ATM Offering, (b) the sales agreement for the ATM Offering does not become effective, or (c) the prospectus used to sell Common Stock in the ATM Offering is not filed by December 31, 2021.
IN WITNESS HEREOF, the parties have executed this Notice and Xxxxxx as of the date first written above.
PROGENITY, INC. | ||
By: | /s/ Erid d’Esparbes |
Name: | Xxxx x’Xxxxxxxx | |
Title: Chief Financial Officer |
[Signature Page to Notice and Waiver]
ATHYRIUM OPPORTUNITIES 2020 LP
By: | Athyrium Opportunities Associates III LP, | |
its General Partner | ||
By: | Athyrium Opportunities Associates III GP LLC, | |
the General Partner of Athyrium Opportunities Associates III LP | ||
By | /s/ Xxxxxxx Xxxxx |
Name: | Xxxxxxx Xxxxx | |
Title: | Authorized Signatory | |
ATHYRIUM OPPORTUNITIES FUND (A) LP | ||
By: | Athyrium Opportunities Associates LP, | |
its General Partner | ||
By: | Athyrium Opportunities Associates GP LLC, | |
the General Partner of Athyrium Opportunities Associates LP |
By | /s/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx | |
Title: | Authorized Signatory |
ATHYRIUM OPPORTUNITIES FUND (B) LP
By: | Athyrium Opportunities Associates LP, | |
its General Partner | ||
By: | Athyrium Opportunities Associates GP LLC, | |
the General Partner of Athyrium Opportunities Associates LP | ||
By | /s/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx | |
Title: | Authorized Signatory |
[Signature Page to Notice and Waiver]
ATHYRIUM OPPORTUNITIES III ACQUISITION 2 LP
By: | Athyrium Opportunities Associates III LP, | |
its General Partner | ||
By: | Athyrium Opportunities Associates III GP LLC, | |
the General Partner of Athyrium Opportunities Associates III LP |
By | /s/ Xxxxxxx Xxxxx |
Name: | Xxxxxxx Xxxxx | |
Title: | Authorized Signatory |
ATHYRIUM OPPORTUNITIES III ACQUISITION LP
By: | Athyrium Opportunities Associates III LP, | |
its General Partner | ||
By: | Athyrium Opportunities Associates III GP LLC, | |
the General Partner of Athyrium Opportunities Associates III LP |
By | /s/ Xxxxxxx Xxxxx |
Name: | Xxxxxxx Xxxxx | |
Title: | Authorized Signatory |
ATHYRIUM OPPORTUNITIES III CO-INVEST 1 LP
By: | Athyrium Opportunities Associates Co-Invest LLC, | |
its General Partner | ||
By | /s/ Xxxxxxx Xxxxx |
Name: | Xxxxxxx Xxxxx | |
Title: | Authorized Signatory |
[Signature Page to Notice and Waiver]