AMENDMENT TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF BRIGHT HEALTH GROUP, INC.
Exhibit 10.3
AMENDMENT TO
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF
BRIGHT HEALTH GROUP, INC.
This AMENDMENT TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT OF BRIGHT HEALTH GROUP, INC. (this “Amendment”), dated as of May 19, 2021 (the “Effective Date”), is made by and among Bright Health Group, Inc. (formerly known as Bright Health Inc.), a Delaware corporation (the “Company”), New Enterprise Associates 15, L.P. (“NEA 15”), NEA Ventures 2016, Limited Partnership (“NEA Ventures”), New Enterprise Associates 16, L.P. (together with NEA 15 and NEA Ventures, “NEA”), Bessemer Venture Partners IX L.P. (“Bessemer IX”), Bessemer Venture Partners IX Institutional L.P. (together with Bessemer IX, “Bessemer”), Greenspring Global Partners VII-A, L.P. (“Greenspring VII-A”), Greenspring Global Partners VII-C, L.P. (“Greenspring VII-C”) and Greenspring Opportunities IV, L.P. (together with Greenspring VII-A and Greenspring VII-C, “Greenspring” and, together with NEA, Bessemer, the “Majority Holders”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Registration Rights Agreement (as defined below).
WHEREAS, the Company, the Majority Holders and the other Holders are parties to that certain Second Amended and Restated Registration Rights Agreement, dated as of November 15, 2018 (the “Registration Rights Agreement”);
WHEREAS, the Majority Holders represent the requisite Holders necessary to amend the Registration Rights Agreement pursuant to Section 19 of the Registration Rights Agreement; and
WHEREAS, in connection with the Company’s proposed IPO, the Company and the Majority Holders desire to make certain modifications and amendments to the Registration Rights Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree that the Registration Rights Agreement is hereby amended as follows:
1. Amendments.
a. | Secondary Registration. Clause (iv) of Section 2 of the Registration Rights Agreement is hereby amended to read in its entirety as follows: |
“(iv) With respect to any registration pursuant to this Section 2, the Corporation shall give notice of such registration, in accordance with the provisions of Section 3 hereunder, to the Holders who do not request registration hereunder (and the FF Beneficial Investor, if the FF Investor is a Holder and does not request registration) and the Corporation may include in such registration any Primary Shares or Other Shares; provided, however, that if the managing underwriter(s) advises the Corporation that the inclusion of all Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration would interfere with the successful marketing (including pricing) of the Registrable Shares proposed to be included in such registration, then the number of Registrable Shares, Primary Shares and/or Other Shares proposed to be included in such registration shall be included in the following order:
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(A) | first, the Registrable Shares held by the Holders (or, if necessary, such Registrable Shares pro rata among the Holders thereof based on the number of Registrable Shares then held by such Holders); |
(B) | second, the Primary Shares; and |
(C) | third, the Other Shares.” |
b. | Piggyback Registration. Section 3 of the Registration Rights Agreement is hereby amended to read in its entirety as follows: |
(i) | first, the Primary Shares; |
(ii) | second, the Registrable Shares held by the Holders (or, if necessary, such Registrable Shares pro rata among the Holders thereof based on the number of Registrable Shares then held by such Holders); and |
(iii) | third, the Other Shares; |
provided, that in no event shall the managing underwriter include in such registration less than thirty percent (30%) of Registrable Shares proposed to be included in such registration by the Holders, unless such registration relates to the IPO, in which case the selling Holders may be excluded further if the underwriters in their reasonable discretion determine that the total number of securities, including Registrable Shares, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that is compatible with the success of the offering and no other stockholder’s securities are included in such offering. The Corporation shall have the right to terminate or withdraw any registration initiated by it under this Section 3 before the effective date of such registration, whether or not any Holder has elected to include Registrable Shares in such registration.”
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c. | Holdback Agreement. Section 5 of the Registration Rights Agreement is hereby amended to read in its entirety as follows: |
d. | Investor’s Counsel. Clause (ii) of Section 6(a) of the Registration Rights Agreement is hereby amended to read in its entirety as follows: |
“(ii) furnish, as far in advance as possible but in no event less than five (5) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Holders of a majority of Registrable Shares (the “Investor’s Counsel”), copies of all such documents proposed to be filed, and shall use commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as the holders of Registrable Shares whose Registrable Shares are to be covered by such registration statement may reasonably propose and shall not file any such document to which any Holder objects in writing, unless in the judgment of the Corporation such filing is necessary to comply with applicable law;”
e. | Legend Removal. Section 11 of the Registration Rights Agreement is hereby amended by adding a new Section 11A that shall be inserted following Section 11 that reads as follows: |
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f. | Amendments and Waivers. Section 19 of the Registration Rights Agreement is hereby amended to read in its entirety as follows: |
2. Full Force and Effect. Except as otherwise amended by this Amendment, the Registration Rights Agreement remains in full force and effect.
3. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any law or rule that would cause the laws of any jurisdiction other than the State of Delaware to be applied.
4. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Amendment (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and provisions of this Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment or any document to be signed in connection with this Amendment shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date.
COMPANY: | ||
BRIGHT HEALTH GROUP, INC. | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: Xxxxx Xxxxxx | ||
Title: General Counsel |
[Signature Page to Amendment to Registration Rights Agreement]
Holder: | ||
New Enterprise Associates 15, L.P. | ||
By: NEA Partners 15, L.P., its general partner | ||
By: NEA 15 GP, LLC, its general partner | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Chief Legal Officer |
Holder: | ||
NEA Ventures 2016, lIMITED PARTNERSHIP | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Vice President |
Holder: | ||
New Enterprise Associates 16, L.P. | ||
By: NEA Partners 16, L.P., its general partner | ||
By: NEA 16 GP, LLC, its general partner | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxxxx | ||
Title: Chief Legal Officer |
[Signature Page to Amendment to Registration Rights Agreement]
Holder: | ||
BESSEMER VENTURE PARTNERS IX L.P. | ||
By: Deer IX & Co. L.P., its general partner | ||
By: Deer IX & Co. Ltd., its general partner | ||
By: | /s/ Xxxxx Ring | |
Name: Xxxxx Ring | ||
Title: General Counsel |
Holder: | ||
BESSEMER VENTURE PARTNERS IX INSTITUTIONAL L.P. | ||
By: Deer IX & Co. L.P., its general partner | ||
By: Deer IX & Co. Ltd., its general partner | ||
By: | /s/ Xxxxx Ring | |
Name: Xxxxx Ring | ||
Title: General Counsel |
[Signature Page to Amendment to Registration Rights Agreement]
Holder: | ||
GREENSPRING GLOBAL PARTNERS VII-A, L.P. | ||
By: Greenspring General Partner VII, L.P., its general partner | ||
By: Greenspring GP VII, Ltd., its general partner | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | ||
Title: COO |
Holder: | ||
GREENSPRING GLOBAL PARTNERS VII-C, L.P. | ||
By: Greenspring General Partner VII, L.P., its general partner | ||
By: Greenspring GP VII, Ltd., its general partner | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | ||
Title: COO |
Holder: | ||
GREENSPRING Opportunities IV, L.P. | ||
By: Greenspring Opportunities General Partner IV, L.P., its general partner | ||
By: Greenspring Opportunities General Partner IV, LLC., its general partner | ||
By: Greenspring Associates, Inc., its sole member | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | ||
Title: COO |
[Signature Page to Amendment to Registration Rights Agreement]