KYTHERA BIOPHARMACEUTICALS, INC. AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 10.1(b)
KYTHERA BIOPHARMACEUTICALS, INC.
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 is made as of January 27, 2012, between KYTHERA BIOPHARMACEUTICALS, INC., a Delaware corporation (the “Company”), and the Investors set forth on the signature pages hereto.
The Company and the Investors are parties to that certain Third Amended and Restated Investor Rights Agreement, dated as of August 30, 2011 (the “Investors’ Agreement”). In connection with working capital credit facility with Lighthouse Capital Partners VI, L.P. (“Lighthouse”), the Company issued a warrant to Lighthouse (the “Warrant”) to acquire shares of the Company’s Series D Preferred Stock (the “Preferred Stock”).
As a covenant of the Warrant, the Company agreed to grant Lighthouse registration rights with respect to the shares of the Company’s Common Stock issuable upon conversion of the Preferred Stock, and the Investors, constituting the holders of at least sixty percent (60%) of the Registrable Securities (as defined in the Investors’ Agreement), desire to amend the Investors’ Agreement to include Lighthouse thereunder.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. The definition of “Series D Preferred Stock” set forth in Section 1.1(cc) of the Investor’s Agreement shall be amended in its entirety as follows:
“Series D Preferred Stock” shall mean the shares of Series D Preferred Stock of the Company issued pursuant to the Purchase Agreement and the shares of Series D Preferred Stock of the Company issued or issuable pursuant to that certain Preferred Stock Purchase Warrant, dated December 30, 2011, issued to Lighthouse Capital Partners VI, L.P. by the Company.”
2. Exhibit A to the Investors’ Agreement shall be amended in its entirety as set forth in Attachment 1 hereto to include Lighthouse Capital Partners VI, L.P. as an Investor under the Investors’ Agreement.
3. Except as set forth herein, the Investors’ Agreement shall remain in full force and effect in accordance with its terms.
4. On or after the date hereof, each reference in the Investors’ Agreement to “this Agreement,” “hereunder,” “herein” or words of like import shall mean and be a reference to the Investors’ Agreement as amended hereby. No reference to this Amendment No. 1 need be made in any instrument or document at any time referring to the Investors’ Agreement and a reference to the Investors’ Agreement in any such instrument or document shall be deemed a reference to the Investors’ Agreement as amended hereby.
5. This Amendment No. 1 may be executed in any number of counterparts, all of which together shall constitute one instrument.
6. This Amendment No. 1 shall be governed in all respects by the internal laws of the State of California as applied to agreements entered into among California residents to be performed entirely within California, without regard to principles of conflicts of law.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Third Amended and Restated Investor Rights Agreement as of the date first written above.
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KYTHERA BIOPHARMACEUTICALS, INC. |
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By: |
/s/ Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
President & CEO |
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INVESTORS:
See attached pages.
Agreed and Accepted:
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LIGHTHOUSE CAPITAL PARTNERS VI, L.P. |
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By: |
LIGHTHOUSE MANAGEMENT PARTNERS VI, L.L.C., | |
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its general partner |
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Managing Director |
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Third Amended and Restated Investor Rights Agreement as of the date first written above.
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INVESTORS: | |
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JAFCO SUPER V3 INVESTMENT LIMITED PARTNERSHIP | |
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By: JAFCO Co., Ltd. | |
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Its: General Partner | |
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By: |
/s/ Xxxxxxxx Xxxxxx |
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Name: |
Xxxxxxxx Xxxxxx |
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Title: |
Senior Vice President, JAFCO America Ventures, Inc., A Wholly Owned Subsidiary of JAFCO Co., Ltd. |
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JAFCO LIFE SCIENCE NO. 1 INVESTMENT ENTERPRISE PARTNERSHIP | |
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By: JAFCO Co., Ltd. | |
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Its: Executive Partner | |
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By: |
/s/ Xxxxxxxx Xxxxxx |
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Name: |
Xxxxxxxx Xxxxxx |
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Title: |
Senior Vice President, JAFCO America Ventures, Inc., A Wholly Owned Subsidiary of JAFCO Co., Ltd. |
Signature Page to Kythera Biopharmaceuticals, Inc.
Amendment No. 1 to Third Amended and Restated Investor Rights Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Third Amended and Restated Investor Rights Agreement as of the date first written above.
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INVESTORS: | |
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PROSPECT VENTURE PARTNERS III, L.P. | |
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By: Prospect Management Co. III, L.L.C. | |
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Its: General Partner | |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Member |
Signature Page to Kythera Biopharmaceuticals, Inc.
Amendment No. 1 to Third Amended and Restated Investor Rights Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Third Amended and Restated Investor Rights Agreement as of the date first written above.
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INVESTORS: | |
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ARCH VENTURE FUND VI, L.P. | |
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By: ARCH Venture Partners VI, L.P. | |
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Its: General Partner | |
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By: ARCH Venture Partners VI, LLC | |
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Its: General Partner | |
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By: |
/s/ Xxxxxx X. Xxxxxx |
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Name: |
Xxxxxx X. Xxxxxx |
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Title: |
Managing Director |
Signature Page to Kythera Biopharmaceuticals, Inc.
Amendment No. 1 to Third Amended and Restated Investor Rights Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to the Third Amended and Restated Investor Rights Agreement as of the date first written above.
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INVESTORS: | |
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VERSANT VENTURE CAPITAL II, L.P. | |
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By: Versant Ventures II, LLC | |
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Its: General Partner | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Xxxxxxx Xxxxxxx |
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VERSANT SIDE FUND II, L.P. | |
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By: Versant Ventures II, LLC | |
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Its: General Partner | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Xxxxxxx Xxxxxxx |
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VERSANT AFFILIATES FUND II-A, L.P. | |
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By: Versant Ventures II, LLC | |
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Its: General Partner | |
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: |
Xxxxxxx Xxxxxxx |
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Title: |
Xxxxxxx Xxxxxxx |
Signature Page to Kythera Biopharmaceuticals, Inc.
Amendment No. 1 to Third Amended and Restated Investor Rights Agreement
Attachment 1
Schedule of Investors
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Investor |
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Number of |
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Number of |
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Number of |
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Number of |
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JAFCO Super V3 Investment Limited Partnership |
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— |
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— |
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1,079,372 |
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141,805 |
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JAFCO Life Science No. 1 Investment Enterprise Partnership |
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1,079,371 |
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— |
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Prospect Venture Partners III, L.P. |
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3,905 |
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3,476,810 |
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1,242,627 |
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312,064 |
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Versant Venture Capital II, L.P. |
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1,596,133 |
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2,739,277 |
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1,200,315 |
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385,530 |
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Versant Side Fund II, L.P. |
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13,695 |
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24,482 |
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10,725 |
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3,446 |
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Versant Affiliates Fund II-A, L.P. |
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29,077 |
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51,984 |
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22,779 |
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7,316 |
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ARCH Venture Fund VI, L.P. |
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3,905 |
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3,511,462 |
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1,474,566 |
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350,765 |
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Altitude Life Science Ventures, L.P. |
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103,905 |
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591,574 |
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227,134 |
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60,910 |
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BBT Fund, L.P. |
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1,057,145 |
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69,443 |
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PFM Healthcare Fund, L.P. |
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69,000 |
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279,201 |
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298,142 |
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PFM Healthcare Offshore Fund, Ltd. |
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29,830 |
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194,814 |
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596,646 |
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PFM Healthcare Principals Fund, L.P. |
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5,075 |
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21,430 |
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56,126 |
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Fidelity Contrafund: Fidelity Advisor New Insights Fund |
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3,803,655 |
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WS Investment Company, LLC (2008A) |
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1,187 |
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WS Investment Company, LLC (2008C) |
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792 |
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Xxxxx Xxxxxxxx |
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10,000 |
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Xxxxxx Xxxxxx |
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9,902 |
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The UCLA Foundation |
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8,692 |
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Investor |
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Number of |
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Number of |
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Number of |
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Number of |
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The UCLA Foundation |
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8,692 |
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WS Investment Company LLC (2005A) |
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10,183 |
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WS Investment Company LLC (2005D) |
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7,273 |
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Xxxxxxx Xxxxxxxx, MD |
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13,629 |
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5,315 |
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Los Angeles Biomedical Research Institute at Harbor — UCLA Medical Center |
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42,834 |
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17,329 |
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Xxxx Xxxxxxx, MD |
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13,629 |
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5,315 |
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Shellwater & Company |
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27,259 |
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10,672 |
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Xxxxxxx Family Trust, dated 28 August 1996 |
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1,625,000 |
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Xxxxxxxxx Xxxxx |
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752,500 |
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Xxxx X.Xxxxxx Revocable Trust, dated 4 April 2011 |
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99,953 |
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Xxxxxx Xxxxxx Revocable Trust, dated 4 April 2011 |
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99,953 |
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Xxx Xxxxxxxx |
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200,000 |
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Xxxxxxxx Xxxxx |
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12,500 |
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Xxxxx Xxxxx |
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100,000 |
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Hafelfinger Family Trust |
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16,664 |
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Xxxxxx and Xxxxxxxxx Xxxxxxxx |
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10,000 |
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Xxxxxx X. Xxxxxx, Ph.D. |
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3,905 |
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4,951 |
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Xxxxxx X. Xxxxxx |
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4,951 |
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Leerink Xxxxx Co-Investment Fund |
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34,655 |
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28,527 |
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The Xxxx X. & Xxxxx X. Xxxxxxxxx Family Trust |
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6,656 |
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VP Company Investments 2008, LLC |
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7,132 |
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Attn: Xxxxxxx X. Player |
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Xxxx X. Xxxxxx |
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475 |
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Investor |
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Number of |
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Number of |
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Number of |
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Number of |
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IFA PE Domestic Fund, LP |
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231,643 |
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IFA PE Master Fund, LP |
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719,271 |
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Xxxxx Ventures LLC |
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19,018 |
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Xxxx X. Xxxxxxx and Xxxx X. Xxxxxxx 2000 Family Trust |
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19,018 |
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SUBTOTALS |
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4,775,000 |
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10,527,780 |
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7,994,548 |
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7,117,588 |
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WARRANT HOLDER Lighthouse Capital Partners VI, L.P. |
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— |
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— |
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89,114(1) |
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114,110(2) |
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TOTAL |
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4,775,000 |
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10,527,780 |
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8,083,662 |
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7,237,698 |
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(1) Series C shares are issuable upon exercise of warrant dated March 21, 2011, as amended on August 30, 2011.
(2) Series D shares are issuable upon exercise of warrant dated December 30, 2011. Such warrant is initially exercisable for 114,109 shares and may be exercisable for up to 228,219 Series D shares.
