EX-10.37 7 d427310dex1037.htm EX-10.37 Execution Version ARSANIS, INC. SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT Dated as of April 12, 2016 Amended as of November 3, 2017 Page No. EXHIBITS Exhibit A Schedule of Purchasers ARSANIS, INC....
Exhibit 10.37
Execution Version
ARSANIS, INC.
SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
Dated as of April 12, 2016
Amended as of November 3, 2017
TABLE OF CONTENTS
Page No. | ||||
2 | ||||
1.1 VOTING PROVISIONS REGARDING THE BOARD OF DIRECTORS | 2 | |||
1.2 VOTING SHARES | 3 | |||
1.3 TRANSFERS OF VOTING RIGHTS | 3 | |||
1.4 SUCCESSOR DIRECTORS | 3 | |||
1.5 NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTORS | 4 | |||
1.6 VOTE TO INCREASE AUTHORIZED COMMON STOCK | 4 | |||
2. DRAG-ALONG RIGHTS. | 4 | |||
2.1 DEFINITION | 4 | |||
2.2 ACTIONS TO BE TAKEN | 4 | |||
2.3 EXCEPTIONS | 5 | |||
2.4 RESTRICTIONS ON SALES OF CONTROL OF THE COMPANY | 7 | |||
3. TRANSFER OF SHARES. | 7 | |||
3.1 RESTRICTIONS ON TRANSFER BY RESTRICTED STOCKHOLDERS | 7 | |||
3.2 TRANSFERS BY RESTRICTED STOCKHOLDERS NOT SUBJECT TO RESTRICTIONS | 7 | |||
3.3 OFFER OF TRANSFER; NOTICE OF PROPOSED TRANSFER | 7 | |||
3.4 COMPANY’S OPTION TO PURCHASE | 7 | |||
3.5 INVESTORS’ OPTION TO PURCHASE | 8 | |||
3.6 FAILURE TO FULLY EXERCISE OPTIONS; CO-SALE RIGHTS WITH RESPECT TO SELLING RESTRICTED STOCKHOLDER | 9 | |||
3.7 EXCEPTION FOR DRAG-ALONG RIGHTS | 10 | |||
10 | ||||
4.1 VOTING SHARES | 10 | |||
4.2 TRANSFER RESTRICTION | 11 | |||
5. TERMINATION OF AGREEMENT. | 11 | |||
5.1 TERMINATION | 11 | |||
5.2 EXCEPTION | 11 | |||
6. TRANSFER OF RIGHTS | 11 | |||
7. IRREVOCABLE PROXY AND POWER OF ATTORNEY | 12 | |||
8. STAND-OFF AGREEMENT | 12 | |||
13 | ||||
9.1 ADDITIONAL PARTIES | 13 | |||
9.2 SEVERABILITY | 13 | |||
9.3 COVENANTS OF THE COMPANY | 13 | |||
9.4 SPECIFIC PERFORMANCE | 13 | |||
9.5 REMEDIES CUMULATIVE | 14 |
i
9.6 GOVERNING LAW | 14 | |
9.7 NOTICES | 14 | |
9.8 COMPLETE AGREEMENT; AMENDMENTS | 15 | |
9.9 CONSTRUCTION | 16 | |
9.10 COUNTERPARTS; FACSIMILE SIGNATURES | 16 | |
9.11 AGGREGATION OF SHARES | 16 |
EXHIBITS
Exhibit A Schedule of Purchasers
ii
ARSANIS, INC.
SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT
This Second Amended and Restated Stockholders’ Agreement (the “Agreement”) is entered into as of April 12, 2016, and amended as of November 3, 2017, by and among Arsanis, Inc., a Delaware corporation (the “Company”), the persons and entities listed on Exhibit A attached hereto (collectively with any subsequent investors or transferees who become parties hereto as Investors pursuant to Section 9.1(a), the “Investors”), and Xxxxxx Xxxx, Xxxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx (each, individually, a “Founder” and collectively, the “Founders,” and collectively with any parties who become parties hereto as Restricted Stockholders pursuant to Section 9.1(b), the “Restricted Stockholders”). The Investors and Restricted Stockholders are referred to herein collectively as the “Stockholders”). As used in this Agreement, the term “Shares” shall include all shares of capital stock of the Company held by the Stockholders, whether now owned or hereafter acquired. For purposes of calculating an Investor’s pro rata ownership of Shares, all shares of Series A-1 Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series A-1 Preferred Stock”), Series A-2 Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series A-2 Preferred Stock”), Series B Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series B Preferred Stock”) and Series C Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series C Preferred Stock” and together with the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock, the “Preferred Stock”) shall be deemed to have been converted into shares of Common Stock, par value $0.001 per share of the Company (the “Common Stock”).
WHEREAS, the Founders own certain outstanding shares of the Company’s Common Stock;
(a) fix the number of directors at ten (10); and
(b) elect as directors:
(i) Five individuals elected by the holders of a majority of the Preferred Stock voting on an as-converted to Common Stock basis held by the Investors; provided, that each holder of Preferred Stock (including for purposes of this section, their transferees) agrees to vote all of its shares of the capital stock of the Company having voting power (and any other shares over which he, she or it exercises voting control), to the extent it holds such voting stock at the relevant time, so that at all times (A) one individual then designated by Polaris Venture Partners V, L.P. (“Polaris”) so long as Polaris is the holder of any shares of Preferred Stock, the first such designee being Xxxxxxxx XxXxxxx, (B) one individual then designated by OrbiMed Private Investments IV, LP (“OrbiMed”) so long as OrbiMed is the holder of any shares of Preferred Stock, the first such designee being Xxxx Xxxxxx, (C) one individual then designated by SV Life Sciences Fund V, L.P. (“SVLS”) so long as SVLS is the holder of any shares of Preferred Stock, the first such designee being Xxxxxxx Xxxx, and (D) one individual then designated by NeoMed Innovation V L.P. (“NeoMed”) so long as NeoMed is the holder of any shares of Preferred Stock, the first such designee being Xxxxxxx Xxxxx, are members of the Board of Directors of the Company, provided, however, that should any of Polaris, OrbiMed, SVLS or NeoMed, or their respective affiliates, cease to hold any shares of Preferred Stock, then such party shall immediately lose its right to designate a director and from that point forward, such director shall be nominated and elected by the holders of a majority of the shares of Preferred Stock held by the Investors, voting on an as-converted to Common Stock basis;
(ii) One individual designated by Xxxxxxx Xxxxxxxxx so long as he is the holder of any shares of Common Stock, such designee to initially be Xxxxxxx Xxxxxxxxx;
(iii) One individual designated by the Founders holding a majority of the aggregate Shares held by the Founders;
- 2 -
(iv) The Company’s most senior executive officer who is an employee of the Company, as determined by the Board of Directors, currently Xxxxxx Xxxx; and
(v) Two individuals designated by a majority of the members of the Board, such designees to initially be Xxx Xxxxxxx and Xxx Xxxxxxxx.
- 3 -
Incorporation to vote or act by written consent with respect to the election of such successor nominee as a director shall vote or cause to be voted, or execute or cause to be executed a written consent with respect to, all Voting Shares in favor of such successor nominee. Except as provided herein, a director designated under Section 1.1(b)(i), 1.1(b)(ii), 1.1(b)(iii) or 1.1(b)(v) above may be removed during his or her term of office, with or without cause, by and only by the affirmative vote or written consent of those Nominating Parties that had the right to designate the director (or the Board of Directors in the case of a director nominated under Section 1.1(b)(v)). A director designated under Section 1.1(b)(iv) shall not be removed so long as such director remains (a) the Company’s most senior executive officer and (b) an employee of the Company. If a Nominating Party (or the Board of Directors in the case of a director nominated under Section 1.1(b)(v)) notifies the other parties hereto that it desires to remove its nominee as a director, each of the other parties hereto who or which are entitled under the Certificate of Incorporation to vote or act by written consent with respect to the removal of such nominee as a director, shall vote or cause to be voted, or execute or cause to be executed a written consent with respect to, all Voting Shares in favor of such removal. If a Nominating Party (or the Board of Directors in the case of a director nominated under Section 1.1(b)(v)) notifies the Company that it desires to remove its nominee as a director and/or designate a successor nominee by means of stockholder vote, the Company shall, at the request of such Nominating Party or the Board of Directors, as applicable, use its reasonable best efforts to ensure that a meeting of stockholders of the Company is promptly called for such purpose.
(a) if such transaction requires stockholder approval, with respect to all Voting Shares and/or any other Company securities that such Stockholder owns or over which such Stockholder otherwise exercises voting power, (i) to vote (in person, by
- 4 -
proxy or by action by written consent, as applicable) all Voting Shares in favor of, and adopt, such Sale of the Company and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company, and (ii) to be present, in person or by proxy, as a holder of Voting Shares or other securities of the Company, at any related stockholder meetings that have been duly noticed and held, and be counted for the purposes of determining the presence of a quorum at such meetings;
(b) if such transaction is a sale of stock by Selling Investors, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the person to whom the Selling Investors propose to sell their Shares, and on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 2, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances), and any similar or related documents;
(d) not to deposit, and to cause their affiliates not to deposit, except as provided in this Agreement, any voting securities of the Company owned by such party or affiliate in a voting trust or subject any such voting securities to any arrangement or agreement with respect to the voting of such shares of capital stock, unless specifically requested to do so by the acquirer, the Company or the Selling Investors in connection with the Sale of the Company; and
(e) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company.
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership of the Shares held by such Stockholder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Company’s securities such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and
- 5 -
delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(b) the liability for indemnification, if any, of such Stockholder in the Proposed Sale, and with respect to any representation or warranty made by the Company in connection with such Proposed Sale, is several and not joint with any other person, and is pro rata in accordance with such Stockholder’s relative stock ownership of the Company;
(c) such liability shall be limited to the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Stockholder related to authority, ownership of the Shares held by such Stockholder and the ability to convey title to such Shares, (ii) any covenants made by such Stockholder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such Stockholder, the liability for which need not be limited;
(d) upon the consummation of the Proposed Sale, each holder of each series of the Company’s Preferred Stock and each holder of Common Stock will receive the same form and amount of consideration per share of such series of Preferred Stock or Common Stock, respectively, and the holders of each series of Preferred Stock and Common Stock shall, together, receive the same form and amount of consideration per share of such stock, taking into account the relative liquidation preference to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a liquidation (if applicable) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, provided, however that if the consideration to be paid in exchange for the Shares pursuant to the Proposed Sale includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(e) if any holders of any series of Preferred Stock or of Common Stock are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such respective series of Preferred Stock or of Common Stock will be given the same option.
- 6 -
3.4 Company’s Option to Purchase.
- 7 -
(a) The Company shall have the first option to purchase all or any part of the Offered Shares of a Selling Restricted Stockholder for the consideration per share and on the terms and conditions no less favorable than those specified in the Seller’s Notice. The Company must exercise such option no later than 15 days after such Seller’s Notice is deemed under Section 9.7 hereof to have been delivered to it by giving written notice to the Selling Restricted Stockholder.
(b) In the event the Company does not exercise its option within such 15-day period with respect to all or part of the Offered Shares of a Selling Restricted Stockholder, the Secretary of the Company shall, by the last day of such period, give written notice of that fact to each Investor (the “Investor Notice”). The Investor Notice shall specify the number of Offered Shares of a Selling Restricted Stockholder not purchased by the Company (the “Remaining Shares”).
(c) In the event the Company duly exercises its option to purchase all or part of the Offered Shares of a Selling Restricted Stockholder, the closing of such purchase shall take place at the offices of the Company on the later of (i) the date that is five days after the expiration of such 15-day period or (ii) the date that the Investors consummate their purchases of Offered Shares under Section 3.5 hereof.
(d) To the extent that the consideration proposed to be paid by the Offeror for the Offered Shares consists of property other than cash or a promissory note, the consideration required to be paid by the Company and/or the Investors when exercising their options under Sections 3.4 and 3.5 hereof may consist of cash equal to the value of such property, as determined in good faith by agreement of the Selling Restricted Stockholder, the Company and/or the Investors acquiring such Offered Shares.
(e) Notwithstanding anything to the contrary in this Agreement, neither the Company nor the Investors shall have any right to purchase any of the Offered Shares hereunder unless the Company and/or the Investors exercise their option or options to purchase all of the Offered Shares.
3.5 Investors’ Option to Purchase.
(a) Each Investor shall have an option, exercisable for a period of 15 days from the date of delivery of the Investor Notice, to purchase its pro rata share of the Remaining Shares for the consideration per share and on terms and conditions no less favorable than those set forth in the Seller’s Notice. Such option shall be exercised by delivery of written notice to the Secretary of the Company. Alternatively, each Investor may within the same 15-day period notify the Secretary of the Company and the Selling Restricted Stockholder in writing of its desire to participate in the sale of the Shares pursuant to Section 3.6 on the terms set forth in the Seller’s Notice and the number of Shares it proposes to sell.
(b) In the event options to purchase have been exercised by the Investors with respect to some but not all of the Remaining Shares, those Investors who have exercised their options within the 15-day period specified in Section 3.5(a) shall have an additional
- 8 -
option, for a period of five (5) days next succeeding the expiration of such 15-day period, to purchase all or any part of the balance of such Remaining Shares on terms and conditions no less favorable than those set forth in the Seller’s Notice, which option shall be exercised by the delivery of written notice to the Secretary of the Company. In the event there are two or more such Investors that choose to exercise the last-mentioned option for a total number of Shares in excess of the number available, the Shares available for each such Investor’s option shall be allocated to such Investor pro rata based on the number of shares of Preferred Stock calculated on an as-converted to Common Stock basis owned by the Investors so electing.
(c) If the options to purchase the Remaining Shares are exercised in full by the Investors, the Secretary of the Company shall promptly notify all of the exercising Investors of that fact. The closing of the purchase of the Remaining Shares shall take place at the offices of the Company no later than five days after the date of such notice to the Investors.
(d) Any Shares sold by a Selling Restricted Stockholder in compliance with the provisions of Sections 3.3 through 3.6 of this Agreement shall be transferred free and clear of the covenants, agreements and restrictions set forth in Section 3 of this Agreement, provided, that, the transferee and any subsequent transferee of the Shares shall hold the Shares so acquired subject to all other covenants, agreements and restrictions imposed by this Agreement and shall be deemed a party to this Agreement for all other purposes. As a condition to any such Transfer, (i) the transferor shall notify the Company and the other Stockholders thereof, which notice shall include a brief description of such Transfer and (ii) each transferee shall execute and deliver a written instrument agreeing to be bound by the provisions of this Agreement (other than the provisions of this Section 3).
3.6 Failure to Fully Exercise Options; Co-Sale Rights with Respect to Selling Restricted Stockholder.
(a) If the Company and the Investors do not exercise their options to purchase all of the Offered Shares within the periods described in this Agreement (the “Option Period”), then all options of the Company and the Investors to purchase the Offered Shares, whether exercised or not, shall terminate; but each Investor who has, pursuant to Section 3.5(a), expressed a desire to sell Shares in the transaction (“Participating Investors”) shall be entitled to do so pursuant to this Section. The Secretary of the Company shall promptly, upon expiration of the Option Period, notify the Selling Restricted Stockholder of the aggregate number of Shares the Participating Investors wish to sell. The Selling Restricted Stockholder shall use his best efforts to interest the Offeror in purchasing, in addition to the Offered Shares, the Shares the Participating Investors wish to sell. If the Offeror does not wish to purchase all of the Shares made available by the Selling Restricted Stockholder and the Participating Investors, then each Participating Investor and the Selling Restricted Stockholder shall be entitled to sell, at the price and on terms and conditions no less favorable than those set forth in the Seller’s Notice, a portion of the Shares being sold to the Offeror, in the same proportion as their respective ownership of Shares calculated on an as-converted to Common Stock
- 9 -
basis bears to the aggregate number of Shares calculated on an as-converted to Common Stock basis owned by the Selling Restricted Stockholder and the Participating Investors. The transaction contemplated by the Seller’s Notice shall be consummated no later than 60 days after the expiration of the Option Period.
(b) The Selling Restricted Stockholder shall be entitled to sell to the Offeror, according to the terms set forth in the Seller’s Notice, that number of Offered Shares which equals the difference between the number of Offered Shares desired to be purchased by the Offeror and (if applicable) the number of Shares the Participating Investors are entitled to sell in accordance with the provisions of this Section 3.6. If the Selling Restricted Stockholder wishes to Transfer any such Offered Shares at a price per Offered Share which differs from that set forth in the Seller’s Notice, upon terms that differ in any material respect from those previously offered to the Company and the Investors, or more than 60 days after the expiration of the Option Period, then, as a condition precedent to such transaction, such Offered Shares must first be offered to the Company and the Investors (if applicable) on terms and conditions no less favorable than those given the Offeror, and in accordance with the procedures and time periods set forth above.
(c) The proceeds of any sale made by a Selling Restricted Stockholder without compliance with the provisions of this Section 3.6 shall be deemed to be held in constructive trust in such amount as would have been due the Participating Investors if the Selling Restricted Stockholder had complied with this Agreement. The contents of any such trust shall be delivered to the Participating Investors upon surrender of the applicable Shares to the Selling Restricted Stockholder.
The shares of stock represented by this certificate are subject to certain agreements as set forth in a Stockholders’ Agreement, as may be amended from time to time, by and among the registered owner of this certificate, the Company and certain other stockholders of the Company, a copy of which is available for inspection by a prospective investor without charge at the office of the Secretary of the Company.
Each Restricted Stockholder agrees to present the certificates representing Voting Shares owned or hereafter acquired by him to the Secretary of the Company and cause the Secretary to stamp on the certificate in a prominent manner such a legend.
- 10 -
The sale or other disposition of any of the shares represented by this certificate is restricted by a Stockholders’ Agreement, as may be amended from time to time, among certain of the shareholders of this Company and this Company, a copy of which is available for inspection by a prospective purchaser without charge at the office of the Secretary of the Company.
5.1 Termination. This Agreement shall terminate upon the earlier to occur of the following events:
(a) the consummation of a Sale of the Company, including the distribution of the net proceeds of such Sale of the Company in accordance with the Company’s Certificate of Incorporation, provided that the provisions of Section 2 hereof will continue after the closing of any Sale of the Company to the extent necessary to enforce the provisions of Section 2 with respect to such Sale of the Company;
(b) the closing of a Qualified IPO (as defined in the Company’s Certificate of Incorporation, as it may be amended and/or restated from time to time);
(c) the redemption or conversion of all shares of Preferred Stock; or
(d) upon vote of the parties hereto pursuant to Section 9.8(b) hereof.
- 11 -
affiliate of the Investor. Such transferee shall be deemed an “Investor” for purposes of this Agreement, provided that the transferee provides written notice of such assignment to the Company and agrees in writing to be bound by the terms and conditions set forth herein as if he, she or it were the original Investor.
(a) any discretionary modification, waiver or termination of the restrictions of such agreements (including this Agreement) by the Company or the managing underwriter shall apply to all persons subject to such agreements on a pro rata basis, based upon the number of shares held by each subject to such agreements;
- 12 -
(b) such agreement shall only apply to the Company’s first registration statement covering Shares to be sold by or on behalf of the Company to the public in an underwritten offering; and
(c) such agreement shall not apply to securities acquired in an open market transaction after such registration statement is declared effective.
(a) Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of Preferred Stock after the date hereof, as a condition to the issuance of such shares the Company shall require that any purchaser become a party to this Agreement by executing and delivering (i) the Adoption Agreement attached to this Agreement as Exhibit B, or (ii) a counterpart signature page hereto agreeing to be bound by and subject to the terms of this Agreement as an Investor and Stockholder hereunder. In either event, each such person shall thereafter shall be deemed an Investor and Stockholder for all purposes under this Agreement.
(b) In the event that after the date of this Agreement, the Company enters into an agreement with any person or entity to issue shares of capital stock to such person or entity (other than to a purchaser of Preferred Stock described in Section 9.1(a) above), then, the Company shall cause such person or entity, as a condition precedent to entering into such agreement, to become a party to this Agreement by executing an Adoption Agreement in the form attached hereto as Exhibit A, agreeing to be bound by and subject to the terms of this Agreement as a Restricted Stockholder and a Stockholder and thereafter such person shall be deemed a Restricted Stockholder and a Stockholder for all purposes under this Agreement. Further, following the date of this Agreement, the Company will use commercially reasonable efforts to cause each existing holder of shares of the capital stock of the Company that are not otherwise a party to this Agreement to become a party to this Agreement by executing an Adoption Agreement in the form attached hereto as Exhibit A, agreeing to be bound by and subject to the terms of this Agreement as a Restricted Stockholder and a Stockholder.
- 13 -
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (without reference to the conflicts of law provisions thereof). Subject to Subsection 9.6(b), the parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Massachusetts and to the jurisdiction of the United States District Court for the District of Massachusetts for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Massachusetts or the United States District Court for the District of Massachusetts, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
(b) Notwithstanding the foregoing Subsection 9.6(a), in the event there is a suit, action or other proceeding of the type described in Article Eleventh of the Company’s Amended and Restated Certificate of Incorporation (i) pending in the Court of Chancery in the State of Delaware or (ii) to be filed simultaneously with the Court of Chancery in the State of Delaware, in either case with respect to facts related to any suit, action or proceeding under this Agreement, then any suit, action or other proceeding under this Agreement must be brought exclusively in the Court of Chancery in the State of Delaware and the parties (x) hereby irrevocably and unconditionally submit to the jurisdiction of the Court of Chancery in the State of Delaware and (y) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
- 14 -
(a) If to the Company, or a Restricted Stockholder, at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxxx Xxxx, or at such other address or addresses as may have been furnished in writing by the Company to the Investors, with a copy to Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.
(b) If to an Investor, at the address set forth on Exhibit A attached hereto.
9.8 Complete Agreement; Amendments.
(a) This Agreement constitutes the full and complete agreement of the parties hereto with respect to the subject matter hereof and amends and restates in its entirety the Prior Agreement.
(b) No amendment, modification or termination of any provision of this Agreement shall be valid unless in writing and signed by (i) the Company and (ii) the Stockholders holding at least a majority of the Shares held by all Stockholders voting on an as-converted to Common Stock basis. Notwithstanding the foregoing, (i) Section 1.1(b)(i)(A) of this Agreement regarding Polaris’ right to designate a director may not be amended, terminated or waived without the written consent of Polaris so long as Polaris has the right to designate a director, (ii) Section 1.1(b)(i)(B) of this Agreement regarding OrbiMed’s right to designate a director may not be amended, terminated or waived without the written consent of OrbiMed so long as OrbiMed has the right to designate a director, (iii) Section 1.1(b)(i)(C) of this Agreement regarding SVLS’ right to designate a director may not be amended, terminated or waived without the written consent of SVLS so long as SVLS has the right to designate a director, (iv) Section 1.1(b)(i)(D) of this Agreement regarding NeoMed’s right to designate a director may not be amended, terminated or waived without the written consent of NeoMed so long as NeoMed has the right to designate a director, (v) Section 1.1(b)(ii) many not be amended, terminated or waived without the written consent of Xxxxxxx Xxxxxxxxx so long as Xxxxxxx Xxxxxxxxx has the right to designate a director and (vi) Section 1.1(b)(iii) may not be amended, terminated or waived without the written consent of the Founders holding a majority of the aggregate Shares held by the Founders so long as such Founders have the right to designate a director. The applicability of any provisions of this Agreement in a particular instance may be waived by the party entitled to the benefit of such provision(s) as follows: in the case of the Company, by written instrument signed on behalf of the Company by a duly authorized officer; in the case of the Founders, by written instrument signed on behalf of the Founders holding at least a majority of the shares of Common Stock held by all Founders; in the case of the Restricted Stockholders, by written instrument signed on behalf of the Restricted Stockholders holding at least a majority of the shares of Common Stock held by the Restricted Stockholders; and in the case of the Investors, by a written instrument signed by the Investors holding at least a majority of the shares of
- 15 -
Preferred Stock voting on an as-converted to Common Stock basis. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision. Any such amendment or waiver effected in accordance with this Section 9.8(b) shall be binding on all parties hereto, even if they did not consent to such amendment or waiver.
[Remainder of page intentionally left blank.]
- 16 -
COMPANY: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxx | ||
Title: President |
Signature Page to Second Amended and Restated Stockholders Agreement
FOUNDERS:
/s/ Xxxxxx Xxxx |
Xxxxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxxxx |
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx |
Signature Page to Second Amended and Restated Stockholders Agreement
RESTRICTED STOCKHOLDERS:
/s/ Xxxxx Xxxx April 9, 2016 |
Xxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxx 2016-APR-09 |
Xxxxxx Xxxxxxxxx |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||||||
ORBIMED PRIVATE INVESTMENTS IV LP | ||||||
By: | OrbiMed Capital XX XX LLC | |||||
Its General Partner | ||||||
By: | OrbiMed Advisors LLC, | |||||
Its Managing Member |
By: | /s/ Xxxx X. Xxxxxx | |||
Name: Xxxx X. Xxxxxx | ||||
Title: Member |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||||||
POLARIS VENTURE PARTNERS V, L.P. | ||||||
By: | Polaris Venture Management Co. V, L.L.C., | |||||
Its General Partner |
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Name: Xxxxxxx X. Xxxxxxxx | ||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS ENTREPRENEURS’ FUND V, L.P. | ||||||
By: | Polaris Venture Management Co. V, L.L.C., | |||||
Its General Partner | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxx | ||||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS FOUNDERS’ FUND, V, L.P. | ||||||
By: | Polaris Venture Management Co. V, L.L.C., | |||||
Its General Partner | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxx | ||||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS SPECIAL FOUNDERS’ FUND V, L.P. | ||||||
By: | Polaris Venture Management Co. V, L.L.C., | |||||
Its General Partner | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxx | ||||||
Title: Attorney-in-fact |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||||
SV LIFE SCIENCES FUND V, L.P. | ||||
By: | SV Life Sciences Fund V (GP), L.P., | |||
Its sole General Partner | ||||
By: | SVLSF V, LLC, | |||
Its sole General Partner | ||||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: Xxxxxx X. Xxxxx | ||||
Title: SVLSF V, LLC, Member |
SV LIFE SCIENCES FUND V STRATEGIC PARTNERS, L.P. | ||||
By: | SV Life Sciences Fund V (GP), L.P., | |||
Its sole General Partner | ||||
By: | SVLSF V, LLC, | |||
Its sole General Partner | ||||
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: Xxxxxx X. Xxxxx | ||||
Title: SVLSF V, LLC, Member |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||||
NEOMED INNOVATION V L.P. | ||||
By: | /s/ XXXXX XXXXXX | /s/ XXXXXX XXXXXXXX | ||
Name: XXXXX XXXXXX | XXXXXX XXXXXXXX | |||
Title: ALTERNATE DIRECTOR | DIRECTOR |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||
EMBL TECHNOLOGY FUND II GMBH & CO. KG | ||
By: | EMBL VENTURES VERWALTUNGS GMBH, | |
its General Partner |
By: | /s/ Xxx Xxxxx | |
Name: Xxx Xxxxx | ||
Title: Executive Director |
By: | /s/ Xxxxxx Xxxx | |
Name: Xxxxxx Xxxx | ||
Title: Executive Director |
Signature Page to Second Amended and Restated Stockholders Agreement
INVESTORS: | ||
Xxxx-Xxxxx and Xxxxxxx Xxxxxx Foundation, Inc. | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: |
Xxxxxxx X. Xxxxxx | |
Title: | President |
Signature Page to Second Amended and Restated Stockholders Agreement
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
ALEXANDRIA VENTURE INVESTMENTS, LLC, a Delaware limited liability company | ||
By: | ALEXANDRIA REAL ESTATE EQUITIES, INC., | |
a Maryland corporation, managing member | ||
By: | /s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx Title: VP - Corporation Counsel | ||
Address: | 000 X. Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxx, XX 00000 |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
GV 2016, L.P. | ||
By: | GV 2016 GP, L.P., its General Partner | |
By: | GV 2016 GP, L.L.C., its General Partner | |
By: | /s/ Xxxxxxxx X. Xxxxxxx | |
Name: | Xxxxxxxx X. Xxxxxxx | |
Title: | Authorized Signatory |
Address: | Attn: Xxxxxxxx X. Xxxxxxx c/o GV 0000 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxx, XX 00000 |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
N5 Investments AS |
By: | /s/ Pål Xxxxxx |
Pål Xxxxxx, an authorized person, for and on its behalf |
Address: | Xxxxxxxxx 00 0000 Xxxx Xxxxxx |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
Xxxx & Xxxxxxx Xxxxx Foundation |
By: | /s/ Xxx Xxxxxxx | |
Name: | Xxx Xxxxxxx | |
Title: | Chief Financial Officer |
Address: | 0000 Xxxxxxx Xxx X. | |
Xxxxxxx, XX 00000 | ||
Attn: General Counsel |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
SV LIFE SCIENCES FUND VI, L.P. |
By: | SV Life Sciences Fund VI (GP), L.P., | |
Its sole General Partner | ||
By: | SVLSF VI, LLC, | |
Its sole General Partner |
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: Xxxxxx X. Xxxxx Title: SVLSF VI, LLC, Member |
Address: | One Boston Place 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attn: Xxxxxx Xxxxx |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
SV LIFE SCIENCES FUND VI STRATEGIC PARTNERS, L.P. |
By: | SV Life Sciences Fund VI (GP), L.P., | |
Its sole General Partner | ||
By: | SVLSF VI, LLC, | |
Its sole General Partner |
By: | /s/ Xxxxxx X. Xxxxx | |||
Name: Xxxxxx X. Xxxxx Title: SVLSF VI, LLC, Member |
Address: | One Boston Place 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attn: Xxxxxx Xxxxx |
Accepted and Agreed: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
Date: | /s/ Xxxxxxx X. Gerngorss | |||||||||||
Xxxxxxx X. Gerngorss | ||||||||||||
Address: |
| |||||||||||
| ||||||||||||
|
Accepted and Agreed: | ||
ARSANIS, INC. |
By: | /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx | ||
Title: President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This Joinder Agreement is executed on April 24, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows.
/s/ Xxxxxxx X. Xxxxxx | ||||
Xxxxxxx X. Xxxxxx | ||||
Address: | 000 Xxxxxxxxxx Xxxxxx | |||
Xxxxxx, XX 00000 |
Accepted and Agreed: | ||
ARSANIS, INC. |
By: | /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx | ||
Title: President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
JOINDER AGREEMENT TO SECOND AMENDED AND RESTATED
This Joinder Agreement is executed on September 1, 2017, by the undersigned (the “Investor”) pursuant to the terms of that certain Second Amended and Restated Stockholders’ Agreement by and among Arsanis, Inc., a Delaware corporation (the “Company”) and certain of its Stockholders, dated as of April 12, 2016, and as amended by that certain First Amendment to the Second Amended and Restated Stockholders’ Agreement dated as of April 24, 2017 (as so amended and as the same may be amended or amended and restated hereafter, the “Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Joinder Agreement, the Investor agrees as follows:
SECTION 32 FUND 1, LP | ||
By: | Section 32 GP 1, LLC | |
its General Partner | ||
By: | /s/ Xxxxxxxx X. Xxxxxxx | |
Xxxxxxxx X. Xxxxxxx | ||
Chief Operating Officer |
ACCEPTED AND AGREED: | ||
ARANIS, INC. |
By: | /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx | ||
Its: President and Chief Executive Officer |
—Joinder Agreement to Second Amended and Restated Stockholders’ Agreement—
EXHIBIT A
SCHEDULE OF INVESTORS
OrbiMed Private Investments IV, LP
000 Xxxxxxxxx Xxxxxx (xx 00xx Xxxxxx)
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Polaris Venture Partners V, L.P.
Xxx Xxxxxx Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Polaris Venture Partners Entrepreneurs’ Fund V, L.P.
[Same address as above]
Polaris Venture Partners Founders’ Fund V, L.P.
[Same address as above]
Polaris Venture Partners Special Founders’ Fund V, L.P.
[Same address as above]
SV Life Sciences Fund V, L.P.
One Boston Place
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
SV Life Sciences Fund V Strategic Partners, L.P.
[Same address as above]
SV Life Sciences Fund VI, L.P.
[Same address as above]
SV Life Sciences Fund VI Strategic Partners, L.P.
[Same address as above]
NeoMed Innovation V L.P.
00, Xxxxxx Xxxxxx
Xxxxxx, XX0 0XX
cc to: xxxxxxx@xxxxxx.xxx
EMBL Technology Fund II GmbH & Co. KG
Xxxxxxxxxxx 000
X-00000 Xxxxxxxxxx
Xxxxxxx
Attn: Xxx Xxxxx
1
Xxxx-Xxxxx and Xxxxxxx Xxxxxx Foundation, Inc.
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn. Xxxxxxx X. Xxxxxx
Xxxx & Xxxxxxx Xxxxx Foundation
Address:
For UPS, FedEx, DHL:
Xxxx & Xxxxxxx Xxxxx Foundation
0000 Xxxxxxx Xxx Xxxx
Xxxxxxx, XX 00000
For United States Postal Service
Xxxx & Xxxxxxx Xxxxx Foundation
XX Xxx 00000
Xxxxxxx, XX 00000
For Messengers & Courier Service
Xxxx & Xxxxxxx Xxxxx Foundation
ATTN: Loading Dock
000 Xxxxx Xxx X
Xxxxxxx, XX 00000-0000
Fax No. 000.000.0000
Attn: Xxx Xxxxxxx, Chief Financial Officer
With a copy (which shall not constitute notice):
Xxxxxx Xxxxxx, Director Program-Related Investments
With a copy (which shall not constitute notice):
Xxxxxx Xxxxx
K&L Gates LLP
000 0xx Xxx, Xxxxx 0000
Xxxxxxx XX, 00000
GV 2016, L.P.
Email: xxxxxx@xx.xxx
Attn: Xxxxxxxx X. Xxxxxxx
c/o GV
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Alexandria Venture Investments, LLC
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
2
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
N5 Investments AS
Xxxxxxxxx 00
0000 Xxxx
Xxxxxx
Xxxxxxx X. Xxxxxxxxx
Section 32 Fund 1, LP
0000 Xxx Xxxxx Xxxxxx #000
Cardiff by the Xxx, XX 00000
3
ARSANIS, INC.
FIRST AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
This FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT (this “Amendment”) is entered into as of April 24, 2017, by and among Arsanis, Inc. (the “Company”), the existing investors listed on the signature pages hereto under the heading “Investors” (the “Existing Investors”), the individuals listed on the signature pages hereto under the heading “Founders” (the “Founders”), and the individuals listed on the signature pages hereto under the heading “Restricted Stockholders” (the “Restricted Stockholders”). Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Stockholders Agreement (each as defined below).
1. Amendments to the Stockholders Agreement.
“(f) any covenants that any Investor shall be required to make (other than in relation to such Investor’s indemnification obligations) in connection with a Proposed Sale shall be limited to reasonable covenants regarding confidentiality, publicity, and similar matters;
(g) the Xxxx & Xxxxxxx Xxxxx Foundation shall not be required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer, or their respective affiliates (including without limitation, that certain Letter Agreement, dated on or about April , 2017, between the Company and the Xxxx & Xxxxxxx Xxxxx Foundation, and any grant agreement from the Xxxx & Xxxxxxx Xxxxx Foundation then currently in effect); except the Stockholders’ Agreement or that certain Second Amended and Restated Investors’ Rights Agreement, as amended, to the extent such agreements (or any specific provisions therein) terminate by their terms in connection with a Proposed Sale;
(h) no Investor shall be required to agree to any covenant not to compete or covenant not to solicit customers, employees, or suppliers of any party unless such Investor is an employee, consultant, or similar service provider to the Company at the time of the closing of the Proposed Sale.”
“This Agreement, and the rights and obligations of each Investor hereunder, may be assigned by such Investor (a) to any person or entity to which such Investor transfers a number of shares of Preferred Stock equal to not less than five percent (5%) of the total number of shares of Preferred Stock held by such Investor
(subject to adjustment for any stock dividend, stock split, stock split-up, combination or shares or the like) immediately following the Closing (as defined in the Purchase Agreement), (b) if the Investor is an individual, to any family member or trust or partnership established for such family member, (c) if the Investor is a corporation, partnership, limited liability company or other entity, to any current or former partner (including general partner and limited partner), shareholder, member, or other affiliate of the Investor or (d) in the case of the Xxxx & Xxxxxxx Xxxxx Foundation, to a charitable trust or other entity a majority of the trustees of which are also trustees of the Xxxx & Xxxxxxx Xxxxx Foundation.”
“Notwithstanding the foregoing, with respect to the Investors, to the extent that the provisions of this Section 8 are in conflict with the “stand-off” agreement provisions in the Second Amended and Restated Investors’ Rights Agreement, dated as of April 12, 2016, and as amended from time to time (the “Rights Agreement”), the provisions in the Rights Agreement shall control.”
“Notwithstanding the foregoing, Subsections 2.3(f) through 2.3(h) may not be amended or waived without the written consent of the Xxxx & Xxxxxxx Xxxxx Foundation.”
[Remainder of page intentionally left blank.]
COMPANY: | ||
ARSANIS, INC. | ||
By: | /s/ Xxxx Xxxxx | |
Name: Xxxx Xxxxx | ||
Title: President |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
FOUNDERS: |
/s/ Xxxxxx Xxxx |
Xxxxxx Xxxx |
/s/ Xxxxxxx X. Xxxxxxxxx |
Xxxxxxx X. Xxxxxxxxx |
/s/ Xxxxx X. Xxxxxxxx |
Xxxxx X. Xxxxxxxx |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
RESTRICTED STOCKHOLDERS: |
/s/ Xxxxx Xxxx Apr 20, 2017 |
Xxxxx Xxxx |
/s/ Xxxxxx Xxxxxxxxx |
Xxxxxx Xxxxxxxxx |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||
ORBIMED PRIVATE INVESTMENTS IV LP | ||
By: | OrbiMed Capital XX XX LLC | |
Its General Partner | ||
By: | OrbiMed Advisors LLC, | |
Its Managing Member |
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: Xxxx X. Xxxxxx | ||||||
Title: Member |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||
POLARIS VENTURE PARTNERS V, L.P. | ||
By: | Polaris Venture Management Co. V, L.L.C., | |
Its General Partner |
By: | /s/ Xxx Xxxxxxxxx | |||||
Name: Xxx Xxxxxxxxx | ||||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS ENTREPRENEURS’ FUND V, L.P. | ||
By: | Polaris Venture Management Co. V, L.L.C., | |
Its General Partner |
By: | /s/ Xxx Xxxxxxxxx | |||||
Name: Xxx Xxxxxxxxx | ||||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS FOUNDERS’ FUND, V, L.P. | ||
By: | Polaris Venture Management Co. V, L.L.C., | |
Its General Partner |
By: | /s/ Xxx Xxxxxxxxx | |||||
Name: Xxx Xxxxxxxxx | ||||||
Title: Attorney-in-fact |
POLARIS VENTURE PARTNERS SPECIAL FOUNDERS’ FUND V, L.P. | ||
By: | Polaris Venture Management Co. V, L.L.C., | |
Its General Partner |
By: | /s/ Xxx Xxxxxxxxx | |||||
Name: Xxx Xxxxxxxxx | ||||||
Title: Attorney-in-fact |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||
SV LIFE SCIENCES FUND V, L.P. | ||
By: | SV Life Sciences Fund V (GP), L.P., | |
Its sole General Partner | ||
By: | SVLSF V, LLC, | |
Its sole General Partner |
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxx X. Xxxxx | ||||||
Title: SVLSF V, LLC, Member |
SV LIFE SCIENCES FUND V STRATEGIC PARTNERS, L.P. | ||
By: | SV Life Sciences Fund V (GP), L.P., | |
Its sole General Partner | ||
By: | SVLSF V, LLC, | |
Its sole General Partner |
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxx X. Xxxxx | ||||||
Title: SVLSF V, LLC, Member |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||||
NEOMED INNOVATION V L.P. | ||||
By: | /s/ XXXXXX XXXXXXXX | /s/ XXXXX XXXXXXX | ||
Name: XXXXXX XXXXXXXX | XXXXX XXXXXXX | |||
Title: DIRECTOR | DIRECTOR | |||
ACTING BY ITS GENERAL PARTNER NEOMEO INNOVATION V LIMITED |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||
EMBL TECHNOLOGY FUND II GMBH & CO. KG | ||
By: | EMBL VENTURES VERWALTUNGS GMBH, | |
its General Partner |
By: | /s/ Xxx Xxxxx | |
Name: Xxx Xxxxx | ||
Title: Executive Director |
By: | /s/ Xx. Xxxxxx Xxxx | |
Name: Xxxxxx Xxxx | ||
Title: Executive Director |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
INVESTORS: | ||
Xxxx-Xxxxx and Xxxxxxx Xxxxxx Foundation, Inc. |
By: | /s/ Xxxxxxx X. Xxxxxx |
Name: Xxxxxxx X. Xxxxxx | ||
Title: President |
Signature Page to First Amendment to Second Amended and Restated Stockholders’ Agreement
EXHIBIT A
Xxxx & Xxxxxxx Xxxxx Foundation
Address:
For UPS, FedEx, DHL:
Xxxx & Xxxxxxx Xxxxx Foundation
0000 Xxxxxxx Xxx Xxxx
Xxxxxxx, XX 00000
For United States Postal Service
Xxxx & Xxxxxxx Xxxxx Foundation
XX Xxx 00000
Xxxxxxx, XX 00000
For Messengers & Courier Service
Xxxx & Xxxxxxx Xxxxx Foundation
ATTN: Loading Dock
000 Xxxxx Xxx X
Xxxxxxx, XX 00000-0000
Fax No. 000.000.0000
Attn: Xxx Xxxxxxx, Chief Financial Officer
With a copy (which shall not constitute notice):
Xxxxxx Xxxxxx, Director Program-Related Investments
With a copy (which shall not constitute notice):
Xxxxxx Xxxxx
K&L Gates LLP
000 0xx Xxx, Xxxxx 0000
Xxxxxxx XX, 00000
GV 2016, L.P.
Email: xxxxxx@xx.xxx
Attn: Xxxxxxxx X. Xxxxxxx
c/o GV
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Alexandria Venture Investments, LLC
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
N5 Investments AS
Xxxxxxxxx 00
0000 Xxxx
Xxxxxx
SV Life Sciences Fund VI, L.P.
One Boston Place
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
SV Life Sciences Fund VI Strategic Partners, L.P.
One Boston Place
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxxxxx