FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 4.3
FIRST AMENDMENT
TO
FOURTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Amendment”) is made and entered into as of October 17, 2018, by and among Axonics Modulation Technologies, Inc., a Delaware corporation (the “Company”), and the persons and entities signatory hereto (collectively, the “Investors”), and amends that certain Fourth Amended and Restated Investors’ Rights Agreement, dated as of March 29, 2018, by and among the Company and the persons and entities signatory thereto (the “Rights Agreement”). Capitalized terms not defined herein shall have the meanings given to such terms in the Rights Agreement.
RECITALS
WHEREAS, the Company and the Investors desire to amend the Rights Agreement pursuant to Section 4.7 thereof to provide for (i) a modification to the definition of a “Qualified Offering” set forth in Section 1.10 thereof and (ii) the termination of the covenants set forth in Section 3.5 thereof upon the closing of a Qualified Offering;
WHEREAS, pursuant to Section 4.7 of the Rights Agreement, the Rights Agreement may be modified, amended, or waived only with the written consent of the Company and the Holders of at least 66-2/3% of the Registrable Securities; and
WHEREAS, the Investors represent Holders of at least 66-2/3% of the Registrable Securities, constituting the requisite threshold for the amendment of the Rights Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, the parties hereby agree as follows:
1. Amendment to Section 1.10. Section 3.5 of the Rights Agreement is hereby amended and restated in its entirety to read as follows:
“1.10 Qualified Offering” shall mean the Company’s first firm commitment underwritten public offering of its Common Stock under the Securities Act with aggregate gross proceeds of at least $50,000,000 (before deduction of underwriters commissions and expenses) and a per share price equal to at least $12.00.”
2. Amendment of Section 3.5. Section 3.5 of the Rights Agreement is hereby amended to add the following sentence to the end of Section 3.5:
“This Section 3.5 shall terminate and be of no further force or effect upon (i) the closing of a Qualified Offering, or (ii) a Liquidation, whichever event shall first occur.”
3. Governing Law. This Amendment shall be governed, construed and enforced in accordance with the laws of the State of California without giving effect to the principles of conflicts of law thereof.
4. Amendment and Ratification. The parties agree that the Rights Agreement is hereby amended in accordance with this Amendment. Except as specifically amended hereby, all terms, conditions, covenants, representations and warranties contained in the Rights Agreement shall remain in full force and effect, and shall be binding upon each holder of any securities purchased under the Rights Agreement.
5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. This Amendment may be executed on signature pages exchanged by facsimile or electronic mail, which copies shall be equally as effective as delivery of an original executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| COMPANY: |
| By: /s/ Xxxxxxx X. Xxxxx |
| Name: Xxxxxxx X. Xxxxx |
| Title: CEO |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| BIODISCOVERY 4 FCPR |
| By: Xxxxxx Partners |
| Its: Manager |
| By: /s/ Xxxxxxx Xxxxxxxxxx |
| Name: Xxxxxxx Xxxxxxxxxx |
| Title: Partner |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: | ||||||||
| NEOMED INNOVATION V, L.P. | ||||||||
| By: | NeoMed Innovation V Limited | |||||||
| Its: | General Partner | |||||||
| By: | /s/ Xxxxxx Xxxxxx | /s/ Xxxxxxxxx Xxxxxxx | ||||||
| Name: Xxxxxx Xxxxxx | Xxxxxxxxx Xxxxxxx | |||||||
| Title: Director | Director | |||||||
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| THE XXXXXX X. XXXX FOUNDATION FOR SCIENTIFIC RESEARCH |
| By: /s/ Xxxx X. Xxxxxxxxx |
| Name: Xxxx X. Xxxxxxxxx |
| Title: President and CEO |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| ADVENT LIFE SCIENCES LLP |
|
By: /s/ Xxxxxxx Xxxxx |
| Name: Xxxxxxx Xxxxx |
| Title: |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| ADVENT LIFE SCIENCES FUND II LP |
| By: Advent Life Sciences LLP |
| Its: General Partner |
| By: /s/ Xxxxxxx Xxxxx |
| Name: Xxxxxxx Xxxxx |
| Title: General Partner |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| COÖPERATIEVE GILDE HEALTHCARE IV U.A. |
|
By: /s/ Xxxx Xxxxxxx Xxxxxx /s/ Pieter van der Meer |
|
Name: Xxxx Xxxxxxx Xxxxxx Xxxxxx van der Meer |
| Title: Managing Partner Managing Partner |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Fourth Amended and Restated Investors’ Rights Agreement to be executed as of the date first above written.
| INVESTOR: |
| LONGITUDE VENTURE PARTNERS III, L.P. |
| By: Longitude Capital Partners III, LLC |
| Its: General Partner |
|
By: /s/ Juliet Tammenoms Xxxxxx |
| Name: Juliet Tammenoms Xxxxxx |
| Title: Managing Director |
Signature Page to First Amendment to Fourth Amended and Restated Investors’ Rights Agreement
