AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 4.7
AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED
This Amendment No. 1 to Fourth Amended and Restated Investor Rights Agreement (this “Amendment”) to that certain Fourth Amended and Restated Investor Rights Agreement (the “XXX”) dated as of November 20, 2013, is entered into as of the 3rd day of July, 2014 (the “Effective Date”), by and among Roka Bioscience, Inc., a Delaware corporation (the “Company”) and the investors listed on Exhibit A attached hereto (referred to hereinafter as the “Investors” and each individually as an “Investor”). All capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the XXX.
RECITALS
WHEREAS, Section 5.2 of the XXX provides that, except as otherwise expressly provided in the XXX, the XXX may be amended or modified (or provisions of the XXX waived either generally or in a particular instance and either retrospectively or prospectively) only with the written consent of (a) the Company (with the approval of the Company’s Board of Directors) and (b) the holders of at least 51% of the votes attributable to the then outstanding shares of Series E Stock, Series D Stock, Series C Stock and Series B Stock, voting together as a single class on an as converted to Common Stock basis (the “Requisite Holders”); and
WHEREAS, the undersigned Investors are the holders of that number of shares of currently outstanding Series E Stock, Series D Stock, Series C Stock and Series B Stock as set forth on Exhibit A hereto, and therefore constitute the Requisite Holders; and
WHEREAS, the Company and the Investors desires to amend the XXX in accordance with Section 5.2 thereof as set forth herein.
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 to this Amendment hereby agree as follows:
AMENDMENT
1. Amendment of XXX. Section 1.1(o) of the XXX is hereby deleted in its entirety and the following substituted in its place:
“(o) “Qualified IPO” means (i) a firm commitment underwritten public offering of shares of the Company’s Common Stock at a price per share to the public of at least $3.825 (adjusted for stock splits, stock dividends, recapitalizations and similar events, including any such events to be effected in connection with such offering) resulting in aggregate proceeds to the Company (net of the underwriting discounts or commissions and offering expenses) of not less than $50,000,000, or (ii) the closing of a firm commitment underwritten public offering of shares of Common Stock that is approved by the holders of at least fifty-one percent (51%) of the aggregate issued and outstanding shares of Series B Stock, Series C Stock, Series D Stock and Series E Stock, voting together as a single class on an as-converted to Common Stock basis.”
2. Reference to and Effect on the XXX.
| a. | On and after the Effective Date, each reference to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import shall mean and be a reference to the XXX as amended to date. No reference to this Amendment need be made in any instrument or document at any time referring to the XXX, a reference to the XXX in any such instrument or document shall be deemed to be a reference to the XXX as amended to date. |
| b. | Except as expressly amended by this Amendment, all of the terms and conditions of the XXX shall continue in full force and effect. |
| c. | The execution of this Amendment by the Company and the undersigned shall constitute a duly adopted amendment of the applicable provisions of the XXX in accordance with Section 5.2 thereof. |
| d. | This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Facsimile copies hereof may be executed as counterpart originals. |
| e. | This Amendment shall be governed by, and construed under, the laws of the State of Delaware, without regard to principles of conflict of laws. |
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EXHIBIT A
LIST OF INVESTORS
| Investors: |
Series B Preferred Stock Held |
Series C Preferred Stock Held |
Series D Preferred Stock Held |
Series E Preferred Stock Held |
||||||||||||
| OrbiMed Private Investments III, LP |
12,283,019 | 3,992,203 | 8,475,069 | 5,931,402 | ||||||||||||
| OrbiMed Associates III, LP |
116,981 | 38,021 | 80,715 | 56,490 | ||||||||||||
| New Enterprise Associates 13, Limited Partnership |
12,360,000 | 4,030,224 | 8,555,784 | 5,987,892 | ||||||||||||
| NEA Ventures 2009, Limited Partnership |
40,000 | — | — | — | ||||||||||||
| TPG Biotechnology Partners III, L.P. |
12,400,000 | 4,030,224 | 6,844,627 | 5,557,814 | ||||||||||||
| Aisling Capital III, LP |
— | — | 8,555,784 | 2,050,391 | ||||||||||||
| Ball & Co fbo Fidelity Mt. Xxxxxx Street Trust: Fidelity Growth Company Fund |
— | — | — | 7,841,600 | ||||||||||||
| M Xxxxxxxx & Co fbo Fidelity Advisor Series VII: Fidelity Advisor Health Care Fund |
— | — | — | 1,372,273 | ||||||||||||
| Mag & Co fbo Fidelity Select Portfolios: Medical Equipment and Systems |
— | — | — | 3,136,640 | ||||||||||||
| Leerink Xxxxx Holdings, LLC |
— | — | — | 490,099 | ||||||||||||
| Leerink Xxxxx Co-Investment Fund, LLC |
— | — | — | 490,099 | ||||||||||||
