Exhibit 10.2
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
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THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the "Agreement") dated
as of March 31, 2000, by and among 3-DIMENSIONAL PHARMACEUTICALS, INC., a
Delaware corporation (the "Company"), and those stockholders of the Company
whose names appear on the signature pages hereof.
W I T N E S S E T H
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WHEREAS, certain of the parties hereto have entered into that certain
Amended and Restated Stockholders' Agreement by and among them, dated as of
January 6, 1998 (the "Stockholders' Agreement");
WHEREAS, the Company has entered into a Series A-5 Preferred Stock Purchase
Agreement, dated as of March 31, 2000 (the "Stock Purchase Agreement"), between
the Company and the investors ("Investors") listed on Schedule 1 providing for
the purchase by the Investors of shares of Series A-5 Preferred Stock, $.001 par
value per share, of the Company, and, in connection therewith, the Company has
agreed to enter into this Agreement which is Exhibit 3.2.3 of the Stock Purchase
Agreement; and
WHEREAS, in connection with the Stock Purchase Agreement, the parties
hereto desire to amend and restate the Stockholders' Agreement as provided for
herein.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and undertakings hereunder and pursuant to the Stock Purchase
Agreement, the parties hereto do hereby amend and restate the Stockholders'
Agreement in its entirety and hereby agree as follows:
SECTION 1. Definitions.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall mean, with respect to any specified Person, (i) any
other Person which owns, directly or indirectly, individually or as part of a
group (as such term is defined under the Exchange Act), greater than 50% of the
voting stock or other capital interest of such specified Person or (ii) any
other Person of whom greater than 50% of the voting stock is owned, directly or
indirectly, individually or as part of a group (as such term is defined under
the Exchange Act), by such specified Person.
"Bylaws" shall mean the Bylaws of the Company, as amended.
"Capital Stock" shall mean any (i) shares of Common Stock, Preferred
Stock or any
other equity security of the Company, (ii) debt securities convertible into or
exchangeable for any equity security of the Company or (iii) options, warrants
or other rights to subscribe for, purchase or otherwise acquire any such equity
security or debt security of the Company.
"Charter" shall mean the Certificate of Incorporation of the Company,
as restated and/or amended from time to time.
"Commission" shall mean the Securities and Exchange Commission or any
other Federal agency administering the Securities Act at the applicable time.
"Common Shares" shall mean the issued and outstanding shares of the
Company's Common Stock.
"Common Stock" shall mean the Company's authorized Common Stock, $.001
par value.
"Equity Stock" shall have the meaning set forth in Rule 3a11-1 under
the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute and the rules and regulations thereunder, as
shall be in effect from time to time.
"Excluded Stock" shall mean (a) the Preferred Shares, (b) the Option
Shares, (c) Common Stock issuable upon conversion of the Preferred Shares, (d)
the Warrants issued or issuable pursuant to the Loan Agreements dated as of
December 15, 1994, as amended, August 15, 1995, December 12, 1995, February 12,
1996, June 20, 1996 and September 25, 1996 between the Company and certain of
the Preferred Stockholders and the Common Stock issued pursuant to the exercise
thereof, (e) the Warrants issued in connection with the Master Lease Agreement
entered into between the Company and Transamerica Business Credit Corporation in
June 1997 and the Common Stock issued pursuant to the exercise thereof, (f)
securities issued pursuant to the acquisition of another corporation,
partnership, joint venture, trust or other entity by the Company by merger,
consolidation, stock acquisition, reorganization, or otherwise, whereby the
Company, or its stockholders of record immediately prior to the effectiveness of
such transaction, directly or indirectly, own at least the majority of the
voting power of such other entity or the resulting or surviving corporation
immediately after such transaction and (g) securities authorized by the
affirmative vote of at least 75% of the Company's Board of Directors then in
office to be issued in connection with (x) bridge loan financings from
institutional and/or other accredited investors or (y) corporate partnering
transactions or other strategic alliances with pharmaceutical or other companies
related to the Company's business.
"Family" shall include any spouse, lineal ancestor or descendant, or
sibling.
"Five Percent (5%) Stockholder" shall mean any Preferred Stockholder
owning (either of record or beneficially), at any time, five percent (5%) or
more of the Company's then outstanding Common Shares.
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"Group" shall mean as to (a) a Preferred Stockholder that is a limited
partnership, any and all of the venture capital limited partnerships now
existing or hereafter arising that are "affiliates" (as defined by Rule 405
promulgated under the Securities Act), in whole or in part, of one or more
general partners or of one or more general partners of a general partner of such
Preferred Stockholder and any predecessor or successor partnership and any
limited and general partners of any such partnership, (b) a Preferred
Stockholder that is a trust, any of the beneficiaries, settlers or grantors now
existing or hereafter arising of, or any Person under common control with, such
trust and (c) any other Preferred Stockholder, its Affiliates.
"Holder" shall mean each Preferred Stockholder and each holder of the
Warrants issued or issuable pursuant to the Loan Agreements dated as of December
15, 1994, as amended, August 15, 1995, December 12, 1995, February 12, 1996,
June 20, 1996 and September 25, 1996 between the Company and certain of the
Preferred Stockholders or of the Common Stock issued pursuant to the exercise
thereof and each holder of the Warrants issued or issuable pursuant to the 1999
Bridge Financing Agreements dated as of November 18, 1999 between the Company
and certain of the Preferred Stockholders and the Common Stock issued or to be
issued pursuant to the exercise thereof.
"Initial Public Offering" shall mean the Company's initial
distribution of Common Stock in an underwritten Public Offering to the general
public pursuant to a registration statement filed with and declared effective by
the Commission pursuant to the Securities Act resulting in gross proceeds
(before underwriting commissions and offering expenses) to the Company of not
less than $15 million.
"Offer" shall have the meaning set forth in Section 4(b) hereof.
"Offered Shares" shall have the meaning set forth in Section 4(a)
hereof.
"Option Shares" shall mean up to 9,325,000 shares of Common Stock
issued, available for issuance or subject to options, warrants or rights granted
or authorized to be granted to employees and others who provide services to the
Company pursuant to any Stock Plan.
"Person" shall mean and include a natural person, a corporation, a
partnership, a trust, an unincorporated organization and a government or any
department, agency or political subdivision thereof.
"Preferred Shares" shall mean the issued and outstanding shares of the
Company's Preferred Stock.
"Preferred Stock" shall mean the Company's authorized Series A-1
Preferred Stock, $.001 par value, Series A-2 Preferred Stock, $.001 par value,
Series A-3 Preferred Stock, $.001 par value, Series A-4 Preferred Stock, $.001
par value and Series A-5 Preferred Stock.
"Preferred Stockholder" shall mean (a) each Person purchasing or who
has purchased
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and holds Preferred Shares of the Company and (b) any Person to whom Preferred
Shares or Registrable Securities are Transferred and to whom registration rights
are assigned in accordance with Section 6.10.
"Preferred Stockholder's Group" shall mean each Person purchasing or
who has purchased and holds Preferred Shares from the Company, together with any
member of such Person's Group.
"Pro Rata Fraction" shall have the meaning set forth in Section 4(a).
"Public Offering" shall mean a distribution of Common Stock in an
underwritten public offering to be the general public pursuant to a registration
statement filed with and declared effective by the Commission pursuant to the
Securities Act.
"Registrable Securities" shall mean any shares of Common Stock issued
or to be issued pursuant to the conversion of Preferred Shares, and any shares
of Common Stock issued or to be issued pursuant to the exercise of the Warrants
issued or issuable pursuant to the Loan Agreements dated as of December 15,
1994, as amended, August 15, 1995, December 12, 1995, February 12, 1995, June
20, 1996 and September 25, 1996 between the Company and certain of the Preferred
Stockholders, and any Common Stock issued or to be issued pursuant to the
exercise of the Warrants issued or issuable pursuant to the 1999 Bridge
Financing Agreements dated as of November 18, 1999 between the Company and
certain of the Preferred Stockholders.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and any successor statute and the rules and regulations of the Commission
thereunder, as shall be in effect at the applicable time.
"Shares" shall mean and include all shares of voting capital stock of
the Company now owned or hereafter acquired by any Preferred Stockholder or
transferee of such Preferred Stockholder.
"Stock Plan" shall mean the Company's Equity Compensation Plan or any
stock option plan for officers, directors, employees and others who render
services to the Company.
"Transfer" shall include any direct or indirect sale, assignment,
transfer, pledge, hypothecation or other disposition of any Shares or of any
legal or beneficial interest therein.
SECTION 2. Representations.
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2.1 By the Company. The Company represents to each Preferred Stockholder
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that:
(a) The execution, delivery and performance by the Company of this
Agreement and all transactions contemplated in this Agreement have been duly
authorized by all action required by law, its Charter, its Bylaws or otherwise.
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(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms.
2.2 By the Preferred Stockholders. Each Preferred Stockholder, as to
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itself or himself, represents to the Company and the other Preferred
Stockholders that:
(a) The execution, delivery and performance by such Preferred
Stockholder of this Agreement and all transactions contemplated in this
Agreement have been duly authorized by all action required by law, and by the
certificate of incorporation and by-laws, partnership agreement or other
governing instrument of such Preferred Stockholder.
(b) This Agreement has been duly executed and delivered by such
Preferred Stockholder and constitutes the legal, valid and binding obligation of
such Preferred Stockholder enforceable against it or him in accordance with its
terms.
SECTION 3. Legend on Shares and Notice of Transfer.
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3.1 Restrictive Legends. Each certificate evidencing Shares, and each
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certificate evidencing Shares held by subsequent transferees of any such
certificate, shall (unless otherwise permitted by the provisions of Section 3.2
hereof) be stamped or otherwise imprinted with a legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAW. ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS
SUBJECT TO THE CONDITIONS SPECIFIED IN THE THIRD AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT DATED AS OF MARCH 31, 2000, AMONG 3-DIMENSIONAL
PHARMACEUTICALS, INC. AND CERTAIN OTHER SIGNATORIES THERETO. NO TRANSFER
OF SUCH SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF 3-DIMENSIONAL PHARMACEUTICALS, INC. THESE SECURITIES MAY NOT
BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS EXEMPTIONS THEREFROM ARE AVAILABLE UNDER THE SECURITIES
ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES LAW.
3.2 Notice of Transfer. (a) Each of the Preferred Stockholders, and any
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other holder of any Shares by acceptance thereof, agrees that, prior to any
Transfer of any Shares, such holder will give written notice to the Company of
such holder's intention to effect such Transfer and to comply in all other
respects with the provisions of this Section 3.2. Each such notice shall
contain (i) a
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statement setting forth the intention of said holder's prospective transferee
with respect to its retention or disposition of said Shares, and (ii) unless
waived by the Company, an opinion of counsel for said holder (who may be the
inside or staff counsel employed by said holder), or an opinion of counsel for
the Company as to the necessity or non-necessity for registration under the
Securities Act and applicable state securities laws in connection with such
Transfer and stating the factual and statutory bases relied upon by counsel. The
following provisions shall then apply:
(i) If in the opinion of counsel for the Company the proposed Transfer
of Shares may be effected without registration or qualification under the
Securities Act and any applicable state securities laws, then the
registered holder of such Shares shall be entitled to Transfer such Shares
in accordance with the intended method of disposition specified in the
statement delivered by said holder to the Company.
(ii) If in the opinion of counsel for the Company the proposed
Transfer of such Shares may not be effected without registration under the
Securities Act or registration or qualification under any applicable state
securities laws, the registered holder of such Shares shall not be entitled
to Transfer such Shares until the requisite registration or qualification
is effective.
(b) Each certificate evidencing the Shares issued upon such Transfer
(and each certificate evidencing any balance of such Shares not transferred)
shall bear the legend set forth in Section 3.1 hereof unless (i) in the opinion
of counsel (reasonably acceptable to the Company) addressed to the Company the
registration of future Transfers is not required by the applicable provisions of
the Securities Act or applicable state securities laws; (ii) the Company shall
have waived the requirement of such legend; or (iii) in the reasonable opinion
of counsel to the Company, such Transfer shall have been made in connection with
an effective registration statement filed pursuant to the Securities Act or in
compliance with the requirements of Rule 144 or Rule 144A (or any similar or
successor rule) promulgated under the Securities Act, and in compliance with
applicable state securities laws.
(c) Notwithstanding the provisions of this Section 3, in the case of
a Transfer by a holder to a member of such holder's Group, no such opinion of
counsel shall be necessary, provided that the transferee agrees in writing to be
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subject to Sections 3.1 and 3.2 hereof to the same extent as if such transferee
were originally a signatory to this Agreement.
SECTION 4. Rights to Purchase Additional Stock..
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(a) Except for Excluded Stock, the Preferred Stockholders shall have
the right to subscribe to any and all issuances of Capital Stock of the Company
("Offered Shares"). Each Preferred Stockholder shall have the right to purchase
that number of Offered Shares as shall be equal to the number of Offered Shares
multiplied by a fraction, the numerator of which shall be the number of Shares
then owned by such Preferred Stockholder and denominator of which shall be the
aggregate number of Shares then owned by all of the Preferred Stockholders (the
"Pro Rata Fraction"). For purposes of calculating the Pro Rata Fraction, each
Preferred Share shall be deemed to represent the number of Common Shares into
which the Preferred Share is then convertible.
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(b) In the event the Company shall propose to issue Capital Stock
except for Excluded Stock, the Company shall give written notice (the "Offer")
to each Preferred Stockholder, which shall set forth the number and kind or
class of shares of Capital Stock proposed to be issued the terms and conditions
thereof and the price therefor. Such notice shall be given at least 20 days
prior to the issuance of such Capital Stock.
(c) The Offer by its term shall remain open and irrevocable for a
period of 20 days from the date of its delivery to such Preferred Stockholder
("20-Day Period").
(d) The Preferred Stockholder shall evidence its acceptance of the
Offer by delivering a written notice ("Notice of Acceptance"), signed by the
Preferred Stockholder, setting forth the number of Offered Shares which the
Preferred Stockholder elects to purchase. The Notice of Acceptance must be
delivered to the Company prior to the end of the 20-Day Period.
(e) If the Preferred Stockholders do not tender Notices of Acceptance
for all of the Offered Shares, the Company shall have 90 days from the
expiration of the 20-Day Period to sell all or any part of the Offered Shares
refused by the Preferred Stockholders to any person(s), but only upon terms and
conditions which are in all material respects no more favorable to such other
person(s) than those set forth in the Offer.
(f) Upon the closing of the sale of Offered Shares to any third party,
each Preferred Stockholder shall purchase from the Company, and the Company
shall issue and sell to such Preferred Stockholder, any Offered Shares for which
such Preferred Stockholder tendered a Notice of Acceptance upon the terms
specified in the Offer.
(g) In each case, any Offered Shares not purchased either by the
Preferred Stockholders or by any other person in accordance with this Section 4
may not be sold or otherwise disposed of until they are again offered to the
Preferred Stockholder under the procedures specified in this Section 4.
(h) If the Capital Stock to be issued by the Company is to be issued
pursuant to a Public Offering, notwithstanding the time periods set forth above,
the Company may require that the Preferred Stockholders make an election to
either (i) commit to purchase shares of Capital Stock from the Company at the
public offering price at the closing of the Public Offering or (ii) waive their
rights to subscribe for additional shares of Common Stock to be issued in the
Public Offering. Such election shall be made sufficiently in advance of the
filing of the registration statement relating to the Public Offering as shall be
reasonably requested by the Company.
(i) The rights provided by this Section 4 may be assigned by any
Preferred Stockholder to any and all members of its Group, provided that all
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such rights of any assignee to purchase Offered Shares will be subject to
receipt of appropriate representations from such assignee as reasonably
requested by the Company to ensure compliance with all applicable securities
laws.
SECTION 5. Reporting of Public Information Rule 144.
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(a) With a view to making available the benefits of Rule 144 under the
Securities Act (or any similar or successor rule which may at any time permit
the sale of Common Shares to the public without registration), at all times
after ninety (90) days after any registration statement covering an offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(i) make and keep public information available, as those terms are
defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to each Preferred Stockholder promptly upon request a
written statement by the Company as to its compliance with the reporting
requirements of the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed by the Company as such holder may reasonably request in availing
itself of Rule 144 (or any similar or successor rule).
(b) With a view to making available the benefits of Rule 144A (or any
similar or successor rule), the Company shall, upon request of a Preferred
Stockholder, make and keep available such information as is required pursuant to
that rule.
SECTION 6. Registration Rights.
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6.1 Demand Registration Rights. Upon written request by Holders
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representing in the aggregate at least 50% of the total number of Registrable
Securities that have not been registered under the Securities Act, the Company
shall use its best efforts to effect the registration under the Securities Act
and registration or qualification under all applicable state securities laws of
the Registrable Securities, as requested by the Holders all as provided in the
following provisions of this Section 6. Holders may require the Company to
effect no more than four registrations under the Securities Act, in the
aggregate, upon the request of the Holders pursuant to this Section 6.1. Except
as otherwise provided in Section 6.6., any registration which is not declared
effective pursuant to the Securities Act and which does not remain effective as
required by Section 6.5(a) below shall not constitute one of the four
registrations which the Company is obligated to effect pursuant to this Section
6.1. A request by a Holder to have the Company effect the registration of
Registrable Securities shall not obligate the Holder to convert them into Common
Stock, whether on not the registration of the Registrable Securities shall
become effective, provided that the Holder shall convert Registrable Securities
into Common Stock prior to the sale of such Registrable Securities pursuant to
such registration statement.
6.2 Registration Requested by Holders. Whenever the Company shall be
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requested, pursuant to Section 6.1 hereof, to effect the registration of any of
the Registrable Securities under the Securities Act (a "Request for
Registration"), the Company shall give notice of such proposed
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registration to all Holders at least 60 days before the Company files a
registration statement and thereupon shall, as expeditiously as possible after
such 60-day notice period, use its best efforts to effect the registration under
the Securities Act and under all applicable state securities laws of:
(a) all Registrable Securities which the Company has been requested to
register pursuant to the Request for Registration; and
(b) all other Registrable Securities which Holders have, within 20
days after the Company has given such notice, requested the Company to register;
all to the extent requisite to permit the sale or other disposition by the
Holders so to be registered. If the Holders who requested the registration of
Registrable Securities engage one or more underwriters to distribute such
Registrable Securities, the Company shall permit the managing underwriter(s) and
counsel to the underwriter(s) at the Company's expense to visit and inspect any
of the properties of the Company, examine its books, take copies and extracts
therefrom and discuss the affairs, finances and accounts of the Company with its
officers, employees and public accountants (and by this provision the Company
hereby authorizes said accountants to discuss with such underwriter(s) and such
counsel its affairs, finances and accounts), at reasonable times and upon
reasonable notice, with or without a representative of the Company being
present. The Company shall have the right to include in any registration of
Registrable Securities required pursuant to this Section 6.2 additional shares
of its Common Stock ("Company Securities") or shares of Common Stock that have
the benefit of duly exercised registration rights contractually binding on the
Company ("Third Party Registrable Securities"), provided that if any Registrable
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Securities to be so registered for sale are to be distributed by or through
underwriters, then all Registrable Securities to be so registered for sale,
Company Securities and Third Party Registrable Securities, if any, shall be
included in such underwriting on the same terms and provided, further that if,
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in the written opinion of the managing underwriter(s) the total amount of such
securities to be registered will exceed the maximum amount of the Company's
securities which can be marketed (i) at a price reasonably related to their then
current market value, or (ii) without otherwise materially and adversely
affecting the entire offering, then the Company shall exclude from such
underwriting (x) first, the maximum number of Company Securities and Third Party
Registrable Securities as is necessary in the opinion of the managing
underwriter(s) to reduce the size of the offering and (y) then, the minimum
number of Registrable Securities, pro rata to the extent practicable, on the
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basis of the number of Registrable Securities requested to be registered among
the participating Holders, as is necessary to reduce the size of the offering.
(A registration that covers both Registrable Securities and Company Securities
or Third Party Registrable Securities shall be deemed to have been requested
pursuant to a Request for Registration if the Registrable Securities constitute
at least 50% of the total offering on the effective date of the registration
statement but shall not be deemed to be one of the four registrations referred
to in Section 6.1 hereof if the Registrable Securities constitute less than 50%
of the total offering on the effective date of the registration statement.)
6.3 "Piggyback" Registrations. (a) If the Company at any time proposes
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other than in accordance with a Request for Registration to register any of its
securities under the Securities Act on Form X-0, X-0 or S-3 or on any other form
upon which the Registrable Securities may be registered for sale to the general
public, solely for cash, whether for its own account or for the
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account of others, the Company will at each such time give notice to all Holders
of such proposal at least 30 days before the Company files a registration
statement. Upon the request of any Holder given within 20 days after the Company
has given such notice, the Company will cause the Registrable Securities which
the Company has been requested to register by such Holder to be registered under
the Securities Act, all to the extent requisite to permit the sale or other
disposition by such Holder of the Registrable Securities so registered.
(b) If securities are to be registered for sale under a registration
not initiated by a Request for Registration and are to be distributed for the
account of the Company by or through a firm of underwriters then any Registrable
Securities which the Company has been requested to register pursuant to clause
(a) of this Section 6.3 shall also be included in such underwriting on the same
terms as other securities of the same class as the Registrable Securities
included in such underwriting, provided that if, in the written opinion of the
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managing underwriter(s), the total amount of such securities to be so registered
and distributed for the account of the Company, when added to the Registrable
Securities and the securities held by holders of securities other than the
Registrable Securities, if any, will exceed the maximum amount of the Company's
securities which can be marketed (i) at a price reasonably related to their then
current market value, or (ii) without otherwise materially and adversely
affecting the entire offering, then (subject to clause (d) of this Section 6.3)
the Company shall exclude from such underwriting (x) first, the maximum number
of securities, if any, other than Registrable Securities, being sold for the
account of persons other than the Company as is necessary to reduce the size of
the offering and (y) then, the minimum number of Registrable Securities, pro
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rata to the extent practicable, on the basis of the number of Registrable
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Securities requested to be registered among the participating Holders, as is
necessary in the opinion of the managing underwriter(s) to reduce the size of
the offering.
(c) If securities are to be registered for sale under a registration
not initiated by a Request for Registration and are to be distributed for the
account of holders of Third Party Registrable Securities or holders (other than
the Company) of other securities of the Company other than Registrable
Securities by or through a firm of underwriters of recognized standing under
underwriting terms appropriate for such transaction, then any Registrable
Securities which the Company has been requested to register pursuant to clause
(a) of this Section 6.3 shall also be included in such underwriting on the same
terms as other securities included in such underwriting, provided that if, in
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the written opinion of the managing underwriter or underwriters, the total
amount of such securities to be so registered, when added to such Registrable
Securities, will exceed the maximum amount of the Company's securities which can
be marketed (i) at a price reasonably related to their then current market
value, or (ii) without otherwise materially and adversely affecting the entire
offering, then the Company shall exclude from such underwriting the number of
Registrable Securities and other securities, pro rata to the extent practicable,
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on the basis of the number of securities requested to be registered, as is
necessary to in the opinion of the managing underwriter(s) to reduce the size of
the offering.
(d) Notwithstanding Section 6.3 (a) and (b), the Company shall not
exclude more Registrable Securities from registration than is necessary to
reduce the number of Registrable Securities to be registered to one-fifth of the
total number of securities to be registered, provided, however, that the Company
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may exclude all Registrable Securities from registration in connection
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with the Company's Initial Public Offering in its sole discretion, whether or
not such exclusion is required in the opinion of the managing underwriter(s).
6.4 Registrations on S-3. At such time as the Company shall have
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qualified for the use of Form S-3 (or any successor form promulgated under the
Securities Act), each Holder shall have the right to request in writing an
unlimited number of registrations on Form S-3. Each such request by a Holder
shall: (a) specify the number of Registrable Securities which the Holder intends
to sell or dispose of, and (b) state the intended method by which the Holder
intends to sell or dispose of such Registrable Securities. Upon receipt of a
request pursuant to this Section 6.4, the Company shall use its best efforts to
effect such registration or registrations on Form S-3. Notwithstanding the
foregoing: (i) the Company shall not be obligated to effect more than one such
registration on Form S-3 pursuant to this Section 6.4 during any thirteen-month
period (provided that this limitation shall not apply to any member of a
Preferred Stockholder Group if a member of such Preferred Stockholder Group has
not caused the Company to effect at least one such registration on Form S-3
during the proceeding thirteen-month period), and (ii) the Company shall not be
obligated to effect any registration on Form S-3 under this Section 6.4 if the
Holders propose to sell in the aggregate a number of Registrable Securities that
they otherwise would be eligible to sell during one three-month period in
compliance with Rule 144 under the Securities Act.
6.5 Company's Obligations in Registration. Whenever the Company is
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obligated to effect the registration of any Registrable Securities under the
Securities Act, as expeditiously as possible the Company will use its best
efforts to:
(a) prepare and file with the Commission, a registration statement
with respect to such Registrable Securities and cause such registration
statement to become and remain effective, provided that the Company shall not be
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required to keep such registration statement effective, or to prepare and file
any amendments or supplements thereto, later than the last business day of the
fifteenth month following the date on which such registration statement becomes
effective under the Securities Act or such longer period during which the
Holders registered thereunder shall pay all expenses reasonably incurred to keep
such registration statement effective with respect to any of the Registrable
Securities so registered and provided, further, that in the event the Commission
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shall have declared any other registration statement with respect to an offering
of securities of the Company to be effective within four months prior to the
Company's receiving a Request for Registration, the Company may delay the
effective date of the registration statement filed in response to the Request
for Registration until six months after the effective date of the previous
registration statement;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such registration statement whenever
the Holders covered by such registration statement shall desire to dispose of
the same;
(c) furnish to the Holders for whom such Registrable Securities are
registered or are to be registered such numbers of copies of a printed
prospectus, including a preliminary
11
prospectus and any amendments or supplements thereto, in conformity with the
requirements of the Securities Act, and such other documents as such Holders may
reasonably request in order to facilitate the disposition of such Registrable
Securities;
(d) notify each Holder at any time when a prospectus relating to the
Registrable Securities covered by such registration statement is required to be
delivered under the Securities Act, of the Company's becoming aware that the
prospectus in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
at the request of any Holder prepare and furnish to such Holder any reasonable
number of copies of any supplement to or amendment of such prospectus necessary
so that, as thereafter delivered to any purchaser of the Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(e) register or qualify the Registrable Securities covered by such
registration statement under such securities or blue sky laws of such
jurisdictions as the Holders for whom such Registrable Securities are registered
or are to be registered shall reasonably request, and do any and all other
reasonable acts and things which may be necessary or advisable to enable such
Holders to consummate the disposition in such jurisdictions of such Registrable
Securities, provided that the Company shall not be required to do business or to
--------
file a general consent to service of process in any such states or
jurisdictions, and provided, further, that (notwithstanding any other provision
-------- -------
of this Agreement with respect to the bearing of expenses) if any jurisdiction
in which the Registrable Securities shall be qualified shall require that
expenses incurred in connection with the qualifications of the Registrable
Securities in that jurisdiction be borne by the Holders thereof and not by the
Company, then such expenses shall be payable by the selling Holders pro rata, to
--- ----
the extent required by such jurisdiction;
(f) furnish to the Holders for whom such Registrable Securities are
registered or are to be registered an agreement satisfactory in form and
substance to them by the Company and each of its officers, directors and holders
of 5% or more of any class of capital stock, that during the 30 days before and
the 180 days after the effective date of any underwritten public offering, the
Company and such officers, directors and 5% security holders shall not offer,
sell, contract to sell or otherwise dispose of any shares of capital stock or
securities convertible into capital stock, except as part of such underwritten
public offering and except that gifts may be made to relatives or their legal
representatives upon the condition that the donees agree in writing to be bound
by the restrictions contained in this clause (f) of Section 6.5;
(g) in connection with any underwritten offering, furnish to the
Holders for whom such Registrable Securities are registered or are to be
registered at the closing of the sale of such Registrable Securities by such
Holders a signed copy of (i) an opinion or opinions of counsel for the Company
acceptable to such Holders in form and substance as is customarily given to
underwriters in public offerings, and (ii) a "cold comfort" letter from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accounts to underwriters
in an underwritten public offering, to the extent that such "cold
12
comfort" letters are then available to selling stockholders;
(h) otherwise use its efforts to comply with all applicable rules and
regulations of the Commission, and, if required, make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first day of the Company's first calendar quarter after the effective
date of the registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(i) use its best efforts to cause all Registrable Securities covered
by such registration statement to be listed on the principal securities exchange
on which similar equity securities issued by the Company are then listed, if the
listing of such Registrable Securities is then permitted under the rules of such
exchange or, if similar equity securities are not listed, to use its best
efforts to cause such Registrable Securities to be included on the Nasdaq
National Market of The Nasdaq Stock Market, Inc.;
(j) in connection with any underwritten offering, enter into an
underwriting agreement with the underwriters of such offering in the form
customary for such underwriters for similar offerings, including such
representations and warranties by the Company, provisions regarding the delivery
of opinions of counsel for the Company and accountants' letters, provisions
regarding indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's underwriting
agreements for similar offerings; and
(k) permit any Holder who, in the sole judgment, exercised in good
faith, of such Holder, might be deemed to be a controlling person of the
Company, to participate in the preparation of such registration statement and to
require the insertion therein of material, furnished to the Company in writing,
that in the judgment of such Holder, as aforesaid, should be included.
6.6 Payment of Registration Expenses. The costs and expenses of all
--------------------------------
registrations and qualifications under the Securities Act, and of all other
actions which the Company is required to take or effect pursuant to this Section
6, shall be paid by the Company or holders of Third Party Registrable Securities
or other securities of the Company other than Registrable Securities, if any
(including, without limitation, all registration and filing fees, printing
expenses, auditing costs and expenses, and the reasonable fees and disbursements
of counsel for the Company and, in connection with registrations under Section
6.1, one special counsel for the Holders) and the Holders shall pay only the
underwriting discounts and commissions and transfer taxes, if any, relating to
the Registrable Securities sold by them; provided that the Company shall pay
--------
without reimbursement such costs and expenses of no more than four registrations
which become effective under the Securities Act as a result of requests for
registration pursuant to Section 6.4, and provided, further, that the Company
-------- -------
shall not be obligated to pay for any costs or expenses incurred in connection
with a registration begun pursuant to a Request for Registration under Section
6.1 if such Request for Registration is subsequently withdrawn at the request of
the Holders of a majority of the Registrable Securities to be registered (in
which case all participating Holders shall bear such costs and expenses) unless
the Holders of a majority of the Registrable Securities agree to forfeit their
right to one demand registration under Section 6.1, and provided, further, that
-------- -------
in the event more than four
13
registrations of Registrable Securities become effective under the Securities
Act as a result of requests for registration pursuant to Section 6.4, the
Holders and holders of other securities, if any, included in such registrations
shall reimburse the Company pro rata for all registration and filing fees,
reasonable printing expenses, reasonable auditing costs and expenses (excluding
costs and expenses of the Company's annual audit) and the reasonable fees and
expenses of counsel for the Company and such reimbursement shall be made to the
Company within five business days after the effective date of such a
registration statement.
6.7 Information from Holders. Notices and requests delivered by Holders
------------------------
to the Company pursuant to this Section 6 shall contain such information
regarding the Registrable Securities to be so registered and the intended method
of disposition thereof as shall reasonably be required in connection with the
action to be taken. Each Holder hereby agrees to provide the Company, or its
agents or designees, with all information reasonably required in connection with
the registration under the Securities Act or any applicable state securities law
of any Registrable Securities.
6.8 Indemnification. (a) In the event of any registration under the
---------------
Securities Act of any Registrable Securities pursuant to this Section 6, to the
extent permitted by law, the Company shall indemnify and hold harmless each
Holder disposing of such Registrable Securities and each other person, if any,
which controls (within the meaning of the Securities Act) such Holder and each
other person (including underwriters) who participates in the offering of such
Registrable Securities, against any losses, claims, damages or liabilities,
joint or several, to which such Holder or controlling person or participating
person may become subject under the Securities Act or otherwise, to the extent
that such losses, claims, damages or liabilities (or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
registration statement under which such Registrable Securities were registered
under the Securities Act, in any preliminary prospectus or final prospectus
contained therein, or in any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein (in the case of a prospectus, in the light of the
circumstances under which they were made) or necessary to make the statements
therein not misleading, and will reimburse such Holder and each such controlling
person or participating person for any legal or any other expenses reasonably
incurred by such Holder or such controlling person or participating person in
connection with investigating or defending any such loss, claim, damage,
liability or proceeding, provided that the Company will not be liable in any
--------
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, preliminary or
final prospectus or amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by an instrument duly executed
by any such Holder or any such controlling or participating person, as the case
may be, specifically for use in the preparation thereof unless such Holder or
such controlling or participating person, as the case may be, in writing
corrects such information or provides additional information in a manner such
that the Company could reasonably correct such untrue statement or omission
contained in any such filings, and provided, further, that the Company will not
-------- -------
be liable for any amounts paid in settlement of any such loss, claim, damage or
liability if such settlement is
14
effected without the consent of the Company. Each such Holder will, if requested
by the Company prior to the initial filing of any such registration statement,
agree in writing, severally but not jointly, to indemnify and hold harmless the
Company and each person which controls (within the meaning of the Securities
Act) the Company and each other person (including underwriters) who participates
in the offering of such Registrable Securities against all losses, claims,
damages and liabilities to which the Company or such controlling person or
participating person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement of any material fact contained, on the effective date
thereof, in any registration statement under which such Registrable Securities
were registered under the Securities Act, or in any preliminary prospectus or
final prospectus contained therein, or in any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
statement or omission made in such registration statement, preliminary or final
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
such Holder and specifically stated to be for use in the preparation thereof
unless such Holder in writing corrects such information or provides additional
information in a manner such that the Company could reasonably correct such
untrue statement or omission contained in any such filings. Each indemnified
party shall cooperate with each indemnifying party in defending any loss, claim,
damage, liability or proceeding.
(b) To the extent permitted by law, indemnification similar to that
specified in the preceding clause of this Section 6.8 (with appropriate
modifications) shall be given by the Company and, at the Company's request, each
Holder with respect to any registration or other qualification of securities
under any state securities and "blue sky" laws.
(c) If the indemnification provided for in clause (a) and (b) of this
Section 6.8 is unavailable or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party referred to in clauses (a) and (b) of this
Section 6.8 in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and the indemnified party on the other
hand in connection with statements or omissions which resulted in losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statements or omissions. The parties agree that
it would not be just and equitable if contributions pursuant to this clause were
to be determined by pro rata allocation or by any other method of allocation
--- ----
which does not take account of the equitable considerations referred to in the
first sentence of this clause. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this clause shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any loss, claim, damage, liability or proceeding which is the
subject of this clause. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f)
15
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(d) Each indemnified party shall notify the indemnifying party in
writing within 10 days after its receipt of notice of the commencement of any
action against it in respect of which indemnity may be sought from the
indemnifying party pursuant to this Section 6.8. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying
party, the indemnifying party will be entitled to participate in the defense
with counsel satisfactory to such indemnified party. Each indemnified party
shall cooperate with each indemnifying party in defending any loss, claim,
damage, liability or proceeding.
(e) Notwithstanding clauses (a) through (c) of this Section 6.8, the
aggregate amount which may be recovered by the Company, controlling persons of
the Company or underwriters from each Holder pursuant to the indemnification and
contribution provided for in this Section 6.8 shall be limited to the total net
proceeds for which the Registrable Securities were sold by such Holder.
(f) Notwithstanding any of the foregoing, if, in connection with an
underwritten public offering of Registrable Securities, the Company, the selling
stockholders and the underwriter(s) enter into an underwriting or purchase
agreement relating to such offering which contains provisions covering
indemnification and contribution among the parties, the indemnification and
contribution provisions of this Section 6.8 shall be deemed inoperative for
purposes of such offering.
6.9 Market Stand-Off Agreement. Each Holder agrees, if requested by the
--------------------------
Company or an underwriter in connection with a Public Offering, that during the
30 days before and the 180 days after the effective date of any Public Offering,
such Holder shall not offer, sell, contract to sell or otherwise dispose of any
shares of Capital Stock or securities convertible into Capital Stock, except as
part of such Public Offering. The Company may impose stop transfer instructions
with respect to the securities subject to the foregoing restrictions until the
end of the stand-off period. The foregoing provisions shall not apply to any
Holder after the Company's Initial Public Offering if the Holder or its group
(as defined in the Exchange Act) beneficially owns less than 5% of the Company's
Common Stock.
6.10 Assignment of Registration Rights. The right to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Section 6 may be assigned by a
Holder to any member of such Holder's Group or in connection with a Transfer of
any Registrable Securities representing at least 1% of the then outstanding
Registrable Securities, provided that such assignment shall be effective only if
--------
the transferee becomes a party to this Agreement and agrees to be bound as a
Preferred Stockholder hereunder, and provided, further, that such registration
-------- -------
rights may not be Transferred to a competitor of the Company (as determined in
good faith by the Board of Directors) unless such Transfer is to a member of
such Holder's Group. A Holder shall retain all rights under this Section 6 with
respect to all Registrable Securities that are not subject to such Transfer.
6.11 Amendment of Registration Rights. Any provision of this Section 6 may
--------------------------------
be amended or the observance thereof may be waived (either generally or in a
particular instance and either
16
retroactively or prospectively), only with the written consent of the Company
and the Holders of a majority of the Registrable Securities then outstanding;
provided, however, any amendment or waiver which adversely affects Rho
Management Trust II, Abingworth Bioventures SICAV, Biotech Growth SA or any
member of any of their Groups may not be made without the written consent of Rho
Management Trust II, Abingworth Bioventures SICAV or Biotech Growth SA and/or
their respective Group member, as the case may be. Any amendment or waiver
effected in accordance with this Section 6.11 shall be binding upon each
Preferred Stockholder, each future Holder and the Company.
6.12 Rights That May Be Granted To Subsequent Investors. (a) Within the
--------------------------------------------------
limitations prescribed by this paragraph (a), but not otherwise, the Company may
grant to subsequent investors in the Company rights of incidental registration
(such as those provided in Section 6.3). Such rights may only pertain to shares
of Common Stock, including shares of Common Stock into which any other
securities may be converted. Such rights may be granted with respect to (i)
registrations actually requested by initiating Holders pursuant to Section 6.1,
but only in respect of that portion of any such registration as remains after
inclusion of all Registrable Securities requested by Holders and (ii)
registrations initiated by the Company, but only in respect of that portion of
such registration as remains after inclusion of all Registrable Securities.
With respect to registrations which are for Public Offerings, "available
portion" shall mean the portion of the underwritten shares that is available as
specified in clauses (i) and (ii) of the third sentence of this paragraph (a).
Shares not included in such underwriting shall not be registered.
(b) The Company may not grant to subsequent investors in the Company
rights of registration upon request (such as those provided in Section 6.1)
unless (i) such rights are limited to shares of Common Stock, (ii) all Holders
are given enforceable contractual rights to participate in registrations
requested by such subsequent investors, such participation to be on a pro rata
--- ----
basis and subject to the limitations described in the final three sentences of
paragraph (a) of this Section 6.12, (iii) such rights shall not become effective
prior to 90 days after the effective date of the first registration pursuant to
Section 6.1 and (iv) such rights shall not be more favorable than those granted
to the Holders.
6.13 Termination of Obligations. Notwithstanding any other provisions of
--------------------------
this Agreement, all of the obligations of the Company under this Section 6 shall
terminate as to any Holder on the first day that such Holder may freely sell
such Registrable Securities in compliance with Rule 144(k) as now in effect or
hereafter amended under the Securities Act, provided that in the event such
--------
Holder becomes an affiliate of the Company (as defined in Rule 144 under the
Securities Act) after such date and prior to December 31, 2007, the Company's
obligations under this Section 6 shall survive and continue as to such Holder
during the period in which such Holder is an affiliate of the Company (as
defined in Rule 144 under the Securities Act), and provided, further, that
-------- -------
notwithstanding the provisions of this Section 6.13, all of the obligations of
the Company under this Section 6 shall terminate as to all Holders on December
31, 2007.
SECTION 7. Duration of Agreement. The rights and obligations of each
---------------------
Preferred Stockholder, except the rights and obligations contained in Sections 5
and 6 hereof, and the covenants hereunder to that Preferred Stockholder shall
terminate as to each Preferred Stockholder
17
upon the earlier of (i) December 31, 2007 and (ii) the closing of the Initial
Public Offering by the Company. The obligations contained in Sections 5 and 6
shall survive indefinitely until, by their respective terms, they are no longer
applicable.
SECTION 8. Remedies. In case any one or more of the covenants and/or
--------
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce their rights either by suit in
equity and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach; and/or an action for specific
performance of any such covenant or agreement contained in this Agreement and/or
a temporary or permanent injunction, in any case without showing any actual
damage. The rights, powers and remedies of the parties under this Agreement are
cumulative and not exclusive of any other right, power or remedy which such
parties may have under any other agreement or law. No single or partial
assertion or exercise of any right, power or remedy of a party hereunder shall
preclude any other or further assertion or exercise thereof. Any purported
Transfer in violation of the provisions of this Agreement shall be void ab
initio. -- ------
SECTION 9. Successors and Assigns. Except as otherwise expressly
----------------------
provided herein, this Agreement shall bind and inure to the benefit of the
Company, each of the Preferred Stockholders and the respective successors or
heirs and personal representatives and permitted assigns of the Company and each
of the Preferred Stockholders. Each Preferred Stockholder agrees further that it
shall not transfer any Shares to any Person not a party to this Agreement unless
such Person becomes a party to this Agreement contemporaneously with such
transfer by executing and delivering to the Company an agreement to be bound
hereby, whereupon such Person shall be deemed a Preferred Stockholder and shall
have the same rights and obligations as other Preferred Stockholders.
SECTION 10. Entire Agreement. This Agreement supersedes all prior
----------------
agreements among the parties with respect to its subject matter (including
without limitation the Amended and Restated Stockholders' Agreement, dated as of
January 6, 1998, which is hereby terminated and of no further force or effect),
and is intended (with the documents referred to herein) as a complete and
exclusive statement of the terms of the agreement among the parties with respect
thereto.
SECTION 11. Notices. All notices, requests, consents and other
-------
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person, duly sent by first class
registered or certified airmail, postage prepaid, or telecopied or telexed to
such party at the address or telecopier number set forth below, or such other
address or telecopier number as may hereafter be designated in writing by the
addressee; provided, however, that if the Preferred Stockholder is foreign,
notice shall be sent by both two-day guaranteed international air courier, and
telecopied or telexed to such Preferred Stockholder:
(a) If to the Company:
3-Dimensional Pharmaceuticals, Inc.
Eagleview Corporate Center
18
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, President
and Chief Executive Officer
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
(b) If to HealthCare Ventures III, L.P. and HealthCare Ventures IV,
L.P.:
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
with a copy to:
Counsel to HealthCare Ventures III, L.P. and
HealthCare Ventures IV, L.P. pursuant to instructions
received from such Preferred Stockholders
(c) If to Rho Management Trust II:
c/o Rho Management Co., Inc.
000 Xxxxx Xxxxxx - 00xx Xx.
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxx
with a copy to:
Xxxxxxx X.X. Xxxx, Esq.
000 0xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
(d) If to Xxxxxx Trust:
Xxxxxx Trust
19
The Xxxxxx Xxxxxx
000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx March
(e) If to Commonwealth Venture Partners II, L.P.:
c/o Philadelphia Ventures, Inc.
The Bellevue
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
(f) If to Xxxxx Xxxxxx:
00 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
(g) If to M & G Equities:
c/o American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
(h) If to Xxxxx Xxxxxxx:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
(i) If to Abingworth Bioventures SICAV
Abingworth Bioventures SICAV
x/x Xxxxx & Xxx
Xxxxx Xxxxxxx 000
X-0000 Xxxxxxxxxx
Telecopier No.: (352) 43 54 10
Attention: Xxxx X. Xxxxx
With a copy to:
Abingworth Management Limited
00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
20
Telecopier No.: 00 000 000-0000
Attention: Xxxxxxx Xxxxxxx, Ph.D.
and to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(j) If to Sentron Medical, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X'Xxxxxxxxx
(k) If to the State of Michigan Retirement Systems:
Department of Treasury
Treasury Building
000 Xxxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(l) If to Aetna Life Insurance Company
000 Xxxxxxxxxx Xxxxxx - XX00
Xxxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Managing Director
(m) If to Biotech Growth SA
c/o Bellevue Asset Management XX
Xxxxxxxxxxx 0
XX-0000 Xxx
Xxxxxxxxxxx
Telecopier No.: 000-00-000-0000
Attention: Xx. Xxxxxxx Xxxxxx
With a copy to:
21
Xxxxx & XxXxxxxx
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
All such notices, requests, consents and communications shall be deemed to
have been given (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of telex or telecopier transmission, on the date on
which the sender receives machine confirmation of such transmission, and (iii)
in the case of mailing, on the fifth business day following the date of such
mailing. Notwithstanding the above, any notice or communication to an address
outside the United States shall additionally be given by telecopier and
confirmed in writing sent by two day guaranteed international courier.
SECTION 12. Changes. Except as otherwise provided in Section 6.11, the
-------
terms and provisions of this Agreement may not be modified or amended, or any of
the provisions hereof waived, temporarily or permanently, except pursuant to the
written consent of (i) the Company, and (ii) the holders of a majority of the
voting power of the Shares; provided, however, any modification, amendment or
-------- -------
waiver which adversely affects Rho Management Trust II, Biotech Growth SA or any
member of either of their Groups may not be made without the written consent of
Rho Management Trust II or Biotech Growth SA and/or their respective Group
member, as the case may be.
SECTION 13. Counterparts. This Agreement may be executed in any number of
------------
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 14. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
SECTION 15. Nouns and Pronouns. Whenever the context may require, any
------------------
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice- versa.
SECTION 17. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
22
SECTION 17. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with (a) the laws of the Commonwealth of Pennsylvania
without giving effect to the principles of conflicts of law thereof and (b) the
laws of the State of Delaware applicable to corporations organized under the
laws of such state.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written, in the case of corporations by their respective
officers thereunto duly authorized.
3-DIMENSIONAL PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. U'Xxxxxxxx
_____________________________________
STOCKHOLDERS:
------------
HEALTHCARE VENTURES III, L.P.
By: HealthCare Partners III, L.P.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
_______________________________
HEALTHCARE VENTURES IV, L.P.
By: HealthCare Partners IV, L.P.
Its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
___________________________
HEALTHCARE VENTURES V, L.P.
By: HealthCare Partners V, L.P.
Its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
___________________________
23
RHO MANAGEMENT TRUST II (formerly Everest Trust)
By: /s/ Illegible
__________________________________
XXXXXX TRUST
By: /s/ Xxxxx Xxxxxxx
_______________________________
COMMONWEALTH VENTURE PARTNERS II, L.P.
By: Xxxxxxx X. Xxxxxx
________________________________
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
___________________________
M & G EQUITIES
By: /s/ Xxxxxxx Xxxxxxxxx
__________________________________
/s/ Xxxxx Xxxxxx
__________________________________
XXXXX XXXXXX
/s/ Xxxxx Xxxxxxx
__________________________________
XXXXX XXXXXXX
ABINGWORTH BIOVENTURES SICAV
By: /s/ M. - Rose Dock
__________________________________
24
SENTRON MEDICAL, INC.
By: /s/ Xxxxx X. Xxxxxx
__________________________________
STATE TREASURER OF THE STATE OF
MICHIGAN, CUSTODIAN OF THE MICHIGAN
PUBLIC SCHOOL EMPLOYEES' RETIREMENT
SYSTEM, STATE EMPLOYEES' RETIREMENT
SYSTEM, MICHIGAN STATE POLICE
RETIREMENT SYSTEM, AND MICHIGAN
JUDGES RETIREMENT SYSTEM
By:
__________________________________
AETNA LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
__________________________________
BIOTECH GROWTH SA
By: Xxxx Xxxx
__________________________________
By: /s/ Xxxx Xxxx
__________________________________
25
