AMENDMENT NO. 1 TO THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 4.3
AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 1 TO THE THIRD AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and effective as of May 31, 2013, by and among Akebia Therapeutics, Inc., a Delaware corporation (the “Company”), and the “Stockholders” as defined in that certain Third Amended and Restated Voting Agreement, dated as of May 10, 2013, by and among the Company and the Stockholders a party thereto (the “Agreement”). Capitalized terms not defined herein have the meanings given them in the Agreement.
RECITALS
WHEREAS, on May 10, 2013, the Agreement was entered into by the Company and the Investors in connection with the transactions and agreements contemplated in that certain Series C Preferred Stock Purchase Agreement by and between the Company and certain parties as listed therein, dated as of May 10, 2013 (the “Series C Stock Purchase Agreement” and the transactions and agreements contemplated therein collectively the “Series C Transaction”); and
WHEREAS, in connection with an Additional Closing (as defined in the Series C Stock Purchase Agreement) to the Series C Transaction dated May 31, 2013, the Company and the Stockholders holding more than the Appropriate Percentage (as defined in the Agreement) of the shares of the Company’s Common Stock issuable upon conversion of the outstanding shares of the Company’s Preferred Stock (as defined in the Agreement) desire to amend the Agreement in accordance with the terms and conditions more fully set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth, and other good and valuable consideration had and received, the parties hereto, upon the terms and subject to the conditions contained herein, hereby agree as follows:
1. Amendments.
(a) Section 1.2(d) is hereby amended by deleting it in its entirety and replacing it with the following: “(d) As Preferred Directors, two persons designated by Novo A/S (each, a “New Investor Director”).”
(b) Section 6.8(i) is hereby amended by deleting it in its entirety and replacing it with the following:
(i) this Agreement may not be amended or terminated and the observance of any term of this Agreement may not be waived with respect to any Stockholder without the written consent of such Stockholder unless such amendment, termination or waiver applies to all Stockholders in the same fashion, and provided that (the following provisions of this Section 6.8(i) proviso, the “Liability Proviso”) any amendment of Sections 3.3(c) and 3.3(d) hereof, as well as any amendment of this Liability Proviso, shall require, in addition to any other approvals required by this Section 6.8, also the approval of (A) Xxxxxx Investment
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Management, LLC so long as Xxxxxx Investment Management, LLC or any of its Affiliates holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock, (B) Novartis Bioventures Ltd. so long as Novartis Bioventures Ltd. holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock, and (C) Novo A/S so long as Novo A/S holds any Preferred Stock or Common Stock issued upon conversion of any of such Preferred Stock;
(c) Section 6.8 (iv) is hereby amended by deleting it in its entirety and replacing it with the following:
(iv) Section 1.2(a) of this Agreement shall not be amended or waived without the written consent of Xxxxxx Investment Management, LLC, Section 1.2(b) of this Agreement shall not be amended or waived without the written consent of Novartis Bioventures Ltd., Section 1.2(c) shall not be amended or waived without the written consent of Kearny Venture Partners, Section 1.2(d) shall not be amended or waived without the written consent of Novo A/S, Section 1.2(e) shall not be amended or waived without the written consent of the holders of a majority of the outstanding shares of Common Stock (including, on an as-converted to Common Stock basis, all shares of Preferred Stock convertible into Common Stock) and Section 1.6 shall not be amended or waived without the written consent of Xxxxxx Investment Management, LLC and Novartis Bioventures Ltd. Notwithstanding the foregoing, if any amendment, modification, termination or waiver of this section or any other section or subsection of this Agreement would deprive Xxxxxx Investment Management, LLC, Novartis Bioventures Ltd., Kearny Venture Partners, or Novo A/S of its director designation rights (or of Xxxxx Xxxx’x right to be named to the Board) under Section 1.2, then the written consent of such party or such person (in the case of Xx. Xxxx) shall be required.
2. Miscellaneous Amendments. The Agreement is amended hereby so that any reference therein to the Agreement shall be deemed to be a reference to the Agreement as amended by this Amendment.
3. Continuance of Agreement. Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect.
4. Governing Law. The laws of the State of Delaware govern all matters arising out of or relating to this Amendment, including, without limitation, its interpretation, construction, performance, and enforcement, without giving effect to such state’s conflicts of law principles or rules of construction concerning the drafter hereof.
5. Counterparts. This Amendment may be executed in two or more counterparts, including by facsimile or PDF signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
AKEBIA THERAPEUTICS, INC. | ||
By: | /s/ Xxxxxx X. Xxxxxxx | |
Xxxxxx X. Xxxxxxx, Ph.D. President and Chief Executive Officer | ||
Address: | ||
0000 Xxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
NOVARTIS BIOVENTURES LTD. | ||
By: | /s/ Xxxxx Xxxx | |
Name: Xxxxx Xxxx | ||
Title: Deputy Chairman | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: Xxxxxxx Xxxxx | ||
Title: Authorized Signatory | ||
Address: | ||
NOVARTIS BIOVENTURES LTD. Attn: Xxxxx Xxxxx Zivi 000 Xxxxx Xxxxxx Xxxxxxxx XX 12 Bermuda
But for mail, to:
Novartis BioVentures Ltd. Attn: Xxxxx Xxxxx Zivi PO Box HM 2899 Xxxxxxxx XX LX Bermuda
And, also send a copy to:
Novartis Venture Fund Attn: Xxxxxxxx Xxxxxx Five Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
VENTURE INVESTORS EARLY STAGE FUND IV LIMITED PARTNERSHIP | ||
By: | VIESF IV GP, LLC, its General Partner | |
By: | /s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx, PhD Title: Managing Director | ||
Address: | ||
000 Xxxxx Xxxx Xxxx Xxxxxxx, XX 00000-0000 Attn: Xxxx Xxxxx, Managing Director Phone: (000) 000-0000 Fax: (000) 000-0000 Email: xxxx@xxxxxxxxxxxxxxxx.xxx |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
TRIATHLON MEDICAL VENTURES FUND, L.P. | ||
By: | Triathlon Medical Ventures, LLC | |
Its: | General Partner | |
By: | /s/ Xxxx X. Xxxx | |
Xxxx X. Xxxx Managing Partner | ||
Address:
000 X-Xxxxxxxx Xxx Xxxxx 000 Xxxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
KEARNY VENTURE PARTNERS, L.P. | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: Kearny Venture Associates, LLC | ||
Title: its General Partner | ||
Address:
Attn: Xxxxxx Xxxxx Kearny Venture Associates LLC 00 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000-0000
KEARNY VENTURE PARTNERS ENTREPRENEURS FUND, L.P. | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: Kearny Venture Associates, LLC Title: its General Partner | ||
Address:
Attn: Xxxxxx Xxxxx Kearny Venture Associates LLC 00 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000-0000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
XXXXXX XXXXXX HEALTHCARE VENTURE PARTNERS, L.P. | ||
By: Xxxxxx Xxxxxx Capital Management LLC Title: its Managing Member | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx Title: Managing Director
Address:
00 Xxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
ATHENIAN VENTURE PARTNERS III L.P. | ||
By: Athenian III, Ltd Its: General Partner | ||
By: | /s/ Xxxx X. Xxxxxxxx | |
Name: Xxxx X. Xxxxxxxx Title: President | ||
AVP OHIO TECHNOLOGY I L.P. | ||
By: AVP Ohio I, Ltd. Its: General Partner | ||
By: | /s/ Xxxx X. Xxxxxxxx | |
Name: Xxxx X. Xxxxxxxx Title: President
Address:
000 Xxxx Xxxxx Xxxxxx Xxxx 00/Xxxxx 000X Xxxxxx XX 00000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above,
AGECHEM VENTURE FUND L.P. | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx Title: President
Address:
Attn: Xxxxx Xxxxxxx, President 0 Xxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
CINCINNATI CORNERSTONE INVESTORS AKB, LLC | ||
By: | /s/ Xxxxxx X. Xxx, Xx. | |
Xxxxxx X. Xxx | ||
President | ||
Address: | ||
00 Xxxx 0xx Xxxxxx, 0xx Xxxxx Xxxxxxxxxx, XX 00000-0000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
FAMILY AKEBIA INVESTMENTS LLC | ||
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: Xxxxxx Xxxxxxxxx | ||
Title: Managing Member | ||
Address: | ||
0000 Xxxx Xxxxxx #00X Xxx Xxxx, XX 00000 |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
XXXXXX X. XXXXXX REVOCABLE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Trustee |
THE XXXXXX FOUNDATION | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Trustee |
XXXXXX FAMILY TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Investment Advisor |
XXXXXX CHILDREN’S TRUST I | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Investment Advisor | ||
Address: | ||
c/x Xxxxxx Investment Management, LLC 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
XXXXXXX XXXXXX XXXXXX REVOCABLE TRUST | ||
By: | /s/ Xxxxxxx Xxxxxx Xxxxxx | |
Name: Xxxxxxx Xxxxxx Xxxxxx | ||
Title: Trustee
| ||
Address: | ||
c/x Xxxxxx Investment Management, LLC 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.
XXXX-XXXXXX XXXXXX INSURANCE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Trustee | ||
ROSE XXXXXXX XXXXX INSURANCE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Investment Advisor | ||
XXXX X. XXXXXX INSURANCE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Investment Advisor | ||
XXXX XXXX TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Investment Advisor
Address:
c/x Xxxxxx Investment Management, LLC 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to he executed as of the date first written above.
XXXXX XXXXXX INSURANCE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Trustee | ||
XXXXXX AND XXXXXXX XXXX XXXXXX INSURANCE TRUST | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx Title: Trustee
Address:
c/x Xxxxxx Investment Management, LLC 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx |
SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE THIRD AMENDED AND RESTATED VOTING AGREEMENT