Amendment

Omnibus Approval and Amendment With Respect To: Series B Preferred Stock Purchase Agreement; And Third Amended and Restated Investors Rights Agreement


Exhibit 4.5

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

This Omnibus Approval and Amendment (this “Amendment”) is made as of March  6, 2012, by and among RECEPTOS, INC., a Delaware corporation (the “Company”), the New Party (as defined below), and the stockholders of the Company tendering signature pages hereto with respect to the following:  (i) that certain Series B Preferred Stock Purchase Agreement (the “Purchase Agreement”), made and entered into as of February 3, 2012, by and among the Company and the Purchasers (as defined in the Purchase Agreement); and (ii) that certain Third Amended and Restated Investors’ Rights Agreement (the “Investors’ Rights Agreement”), made and entered into as of February 3, 2012, by and among the Company and the Investors (as defined in the Investors’ Rights Agreement), as amended by that certain Omnibus Approval and Amendment (the “Prior Omnibus Amendment”), dated as of February 23, 2012, by and among the Company and the stockholders of the Company tendering signature pages thereto.  This Amendment is made with reference to the following:

 

A.                                    Defined terms used herein but not otherwise defined shall have their respective meanings as set forth in the Purchase Agreement.

 

B.                                    The parties desire to (i) approve of an additional party becoming a Purchaser under the Purchase Agreement and (ii) amend the Investors’ Rights Agreement in connection with such approval.

 

C.                                    In order to approve of an additional party becoming a Purchaser (in this case, an Additional 1st Tranche Purchaser) pursuant to the Purchase Agreement, this Amendment must be executed by a Majority-In-Interest (i.e., Purchasers holding at least a majority of the currently outstanding shares of Series B Preferred Stock held by all Purchasers).

 

D.                                    In order to amend the Investors’ Rights Agreement, this Amendment must be executed by (i) the Company and (ii) the “Holders” (as defined in the Investors’ Rights Agreement) of at least sixty percent (60%) of the shares of Series A Preferred Stock and Series B Preferred Stock currently outstanding (taken together as one class).

 

NOW, THEREFORE, the parties agree as follows:

 

1.             Approval of Additional 1st Tranche Purchaser.  Osage University Partners I, L.P. (the “New Party”) is approved as an Additional 1st Tranche Purchaser pursuant to Section 1.2(b)(i), clause (z) of the Purchase Agreement, with the New Party having the following purchase commitments subject to the terms and conditions of, and all as more fully set forth in, the Purchase Agreement:

 



 

 

 

1st Tranche

 

2nd Tranche

 

3rd Tranche

 

TOTALS

 

Shares

 

728,155

 

728,155

 

485,437

 

1,941,747

 

Aggregate Price

 

$

749,999.65

 

$

749,999.65

 

$

500,000.11

 

$

1,999,999.41

 

 

2.             Delivery of Financial Statements and Inspection Rights.  Effective upon the New Party fulfilling its 1st Tranche purchase commitment as contemplated by Section 1 of this Amendment above, the Investors’ Rights Agreement is hereby amended as follows:

 

(a)           The following sentence is hereby inserted at the end of Section 3.1:

 

“For purposes of this Section 3.1, Osage University Partners I, L.P. (“Osage”) shall have the same rights as a Major Investor; provided, however; that the foregoing provisions of this sentence shall terminate in the event (i) any shares of Series B Preferred Stock issued by the Company to Osage (regardless of whether such shares have been transferred) are converted into shares of Common Stock pursuant to a Pay-to-Play Conversion (as such term is defined in the Company’s Certificate of Incorporation) or (ii) Osage transfers any shares of Series B Preferred Stock (or any shares of Common Stock into which such shares of Series B Preferred Stock have been converted), except to an affiliated fund or entity.”

 

(b)           The following sentence is hereby inserted at the end of Section 3.2:

 

“For purposes of this Section 3.2, Osage shall have the same rights as a Major Investor; provided, however; that the foregoing provisions of this sentence shall terminate in the event (i) any shares of Series B Preferred Stock issued by the Company to Osage (regardless of whether such shares have been transferred) are converted into shares of Common Stock pursuant to a Pay-to-Play Conversion (as such term is defined in the Company’s Certificate of Incorporation) or (ii) Osage transfers any shares of Series B Preferred Stock (or any shares of Common Stock into which such shares of Series B Preferred Stock have been converted), except to an affiliated fund or entity.”

 

3.             Miscellaneous; Transaction Agreements.  Except as otherwise expressly provided herein, the Purchase Agreement and the Investors’ Rights Agreement are unaffected hereby and remain in full force and effect in accordance with their respective terms.  The New Party acknowledges and agrees that in order to participate in the transactions contemplated by Section 1 above, the New Party shall be required to execute signature pages for, and otherwise become a party to, this Amendment as well as the Purchase Agreement, the Investors’ Rights Agreement, the Voting Agreement, the Right of First Refusal and Co-Sale Agreement and the Prior Omnibus Amendment.

 

2



 

4.             Counterparts; Facsimile.  This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Amendment may also be executed and delivered by facsimile signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

[signature pages follow]

 

3



 

IN WITNESS WHEREOF, the parties have executed this Omnibus Approval and Amendment as of the date first written above.

 

 

RECEPTOS, INC.

 

 

 

 

 

 

By:

/s/ Faheem Hasnain

 

Name:

Faheem Hasnain

 

Title:

Chief Executive Officer

 

 

 

Address:

10835 Road to the Cure, #205

 

 

San Diego, CA 92121

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

POLARIS VENTURE PARTNERS VI, L.P.

 

 

 

By:

POLARIS VENTURE MANAGEMENT CO. VI, L.L.C.

 

 

ITS GENERAL PARTNER

 

 

 

 

 

By:

/s/ William E. Bilodeau

 

 

William E. Bilodeau

 

 

Attorney-in-fact

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

POLARIS VENTURE PARTNERS FOUNDERS’ FUND VI, L.P.

 

 

 

By:

POLARIS VENTURE MANAGEMENT CO. VI, L.L.C.

 

 

ITS GENERAL PARTNER

 

 

 

 

 

By:

/s/ William E. Bilodeau

 

 

William E. Bilodeau

 

 

Attorney-in-fact

 


 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

FLAGSHIP VENTURES FUND 2007, L.P.

 

 

 

By its General Partner

 

Flagship Ventures 2007 General Partner LLC

 

 

 

 

 

By:

/s/ Noubar Afeyan

 

 

Manager

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

LILLY VENTURES FUND I, LLC

 

 

 

 

 

By:

/s/ S. Edward Torres

 

Name:

S. Edward Torres

 

Title:

Managing Director

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

ARCH VENTURE FUND VII, L.P.

 

 

 

By: ARCH Venture Partners VII, L.P.,

 

its General Partner

 

 

 

 

By: ARCH Venture Partners VII, LLC,

 

 

its General Partner

 

 

 

 

By:

/s/ Clinton Bybee

 

 

Name:

Clinton Bybee

 

 

Title:

Managing Director

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

ARCH VENTURE FUND VI, L.P.

 

 

 

By: ARCH Venture Partners VI, L.P.,

 

its General Partner

 

 

 

 

By: ARCH Venture Partners VI, LLC,

 

 

its General Partner

 

 

 

 

 

 

By:

/s/ Clinton Bybee

 

 

Name:

Clinton Bybee

 

 

Title:

Managing Director

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

 

VENROCK ASSOCIATES V, L.P.

 

 

 

By:

Venrock Management V, LLC

 

Its:

General Partner

 

 

 

 

 

By:

/s/ Bryan Roberts

 

 

Authorized Signatory

 


 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

VENROCK ENTREPRENEURS FUND V, L.P.

 

 

 

By: VEF Management V, LLC

 

Its: General Partner

 

 

 

 

 

By:

/s/ Bryan Roberts

 

 

Authorized Signatory

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

VENROCK PARTNERS V, L.P.

 

 

 

By: Venrock Partners Management V, LLC

 

Its: General Partner

 

 

 

 

 

By:

/s/ Bryan Roberts

 

 

Authorized Signatory

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

William H. Rastetter and Marisa G. Rastetter

 

 

 

 

 

By:

 /s/ William H. Rastetter

 

Name: William H. Rastetter

 

 

 

 

 

By:

 /s/ Marisa G. Rastetter

 

Name: Marisa G. Rastetter

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

/s/ Faheem Hasnain

 

Faheem Hasnain

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

WS INVESTMENT COMPANY, LLC (2012A)

 

 

 

 

 

By:

/s/ James A. Terraman

 

Name:

 

 

Title:

 

 


 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

BMV Direct LLC

 

 

 

 

 

By:

 /s/ Jonathan P. Klassen

 

Name:

Jonathan P. Klassen

 

Title:

Vice President

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 9, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

WASHINGTON RESEARCH FOUNDATION

 

 

 

By:

 /s/ Jeff Eby

 

Name:

Jeff Eby

 

Title:

CFO

 

 

Address:

2815 Eastlake Ave E #300

 

 

Seattle, WA 98102

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 6, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

OSAGE UNIVERSITY PARTNERS I, L.P.

 

 

 

 

BY:

OSAGE UNIVERSITY GP, LP,

 

 

ITS GENERAL PARTNER

 

 

 

 

BY:

OSAGE PARTNERS, LLC,

 

 

 

ITS GENERAL PARTNER

 

 

 

 

 

BY:

/s/ William Harrington

 

 

NAME: William Harrington

 

 

ITS: Authorized Signer

 

 

 

Address:

c/o Osage Partners

 

 

50 Monument Rd, Ste 201

 

 

Bala Cynwyd, PA 19004

 



 

SIGNATURE PAGE TO

 

OMNIBUS APPROVAL AND AMENDMENT WITH RESPECT TO:

 

SERIES B PREFERRED STOCK PURCHASE AGREEMENT; AND

 

THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

 

MARCH 28, 2012

 

The undersigned hereby executes and delivers the Omnibus Approval and Amendment  to which this Signature Page is attached, which, together with all counterparts thereto and Signature Pages of the other parties with respect thereto, shall constitute one and the same document in accordance with the terms of such document.

 

 

ALTITUDE LIFE SCIENCE VENTURES, L.P.

 

 

 

 

 

By:

/s/ David Maki

 

Name:

David Maki

 

Title:

General Partner

 

 

 

Address:

 701 Fifth Avenue

 

 

Suite 5400

 

 

Seattle, WA 98104