EXHIBIT 4.1
AMENDMENT NO. 3 TO SHAREHOLDER'S AGREEMENT
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AMENDMENT NO. 3 (the "Amendment"), dated as of May 19, 1997, to the
Shareholder's Agreement, dated as of November 12, 1996, as amended by Amendment
No. 1 dated as of December 16, 1996, and Amendment No. 2 dated as of February
28, 1997 (the "Agreement"), between Gensia Sicor Inc. (f/k/a Gensia, Inc.), a
corporation organized under the laws of Delaware (the "Company"), and Rakepoll
Finance N.V., a corporation organized under the laws of the Netherlands Antilles
("Rakepoll Finance").
W I T N E S S E T H :
WHEREAS, the Company and Rakepoll Finance are parties to the Agreement; and
WHEREAS, in connection with the investment in the Company by Health Care
Capital Partners L.P. ("HCCP"), pursuant to the certain Securities Purchase
Agreement, dated as of May 1, 1997, between HCCP and the Company (the "HCCP
Agreement") the Company and Rakepoll Finance wish to amend the Agreement, among
other things (i) to extend the lock-up period applicable to Rakepoll Finance to
parallel the lock-up period applicable to HCCP; (ii) to extend the period before
which Rakepoll Finance may exercise its registration rights under the Agreement
to parallel the analogous period applicable to HCCP; (iii) to modify the
registration rights of Rakepoll Finance to correspond to registration rights
afforded by the Company to HCCP in the HCCP Registration Rights Agreement, dated
as of May 1, 1997, and (iv) to provide for certain limitations to the incidental
registration rights of Rakepoll Finance, in each case as more fully set forth
herein and subject to the terms and conditions hereof; and
WHEREAS, Section 8.2(a) of the Agreement provides that the Agreement may be
amended in a writing signed by the Company and Rakepoll Finance;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions: References. Capitalized terms used in this Amendment but
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not defined herein shall have the meanings ascribed to them in the Agreement.
2. Amendment of Section 1.1(o). Section 1.1(o) of the Agreement is
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hereby amended by deleting such section in its entirety and substituting in lieu
thereof the following:
"Lock-Up Period' means the period of time commencing at the Closing Date
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and terminating on the date which is 18 months after the Closing Date."
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3. Amendment of Section 4.7. Section 4.7 of the Agreement is hereby
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amended by inserting immediately before the "." at the end thereof the
following:
", or (iii) pursuant to, or upon conversion or exercise of securities
issued pursuant to, the Securities Purchase Agreement, dated May 1, 1997,
between Health Care Capital Partners ("HCCP") and the Company".
4. Amendment of Section 6.1(a). Section 6.1(a) of the Agreement is
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hereby amended by deleting from the first sentence thereof the words "first
anniversary of the Closing Date" appearing in the first and second lines thereof
and substituting in lieu thereof the words "termination of the Lock-Up Period".
5. Amendment of Section 6.2. Section 6.2 of the Agreement is hereby
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amended by deleting in its entirety the first sentence thereof and substituting
in lieu thereof the following:
"Subject to Section 6.7, if at any time after the termination of the Lock-
Up Period the Company proposes to file a registration statement under the
Securities Act (other than a registration statement on a Form S-4 or S-8 or
any successor or similar forms, or a registration effected pursuant to
Section 2.1 of the Registration Rights Agreement, dated as of May 1, 1997,
between HCCP and the Company (the "HCCP Registration Rights Agreement")
unless the Selling Holders (as defined in the HCCP Registration Rights
Agreement) holding at least a majority of the Registrable Securities (as
defined in the HCCP Registration Rights Agreement) included in such
registration shall have provided their written consent to the inclusion of
such Registrable Securities (as defined in the HCCP Registration Rights
Agreement) in such registration) on any form that would permit the
registration of the Registrable Securities, whether or not such filing is
to be on its behalf, each such time the Company shall give to each Holder
prompt written notice of such determination setting forth the date on which
the Company proposes to file such registration statement, which date shall
be no earlier than twenty-one days from the date of such notice, and
advising each Holder of its right under this Section 6.2 to have
Registrable Securities included in such registration".
6. Full Force and Effect. Except as modified, amended or supplemented
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above, all rights, terms and conditions of the Agreement shall remain in full
force and effect.
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7. Conditions to Effectiveness of this Amendment. This Amendment shall
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become effective when (a) HCCP and the Company shall have executed and delivered
all documents necessary to effect the investment in the Company by HCCP,
including, without limitation, the HCCP Agreement; (b) the Company shall have
received the Purchase Price (as defined in the HCCP Agreement); (c) the Company
shall have issued to HCCP the Notes and Warrants (each as defined in the HCCP
Agreement) in accordance with the terms of the HCCP Agreement, and (d) it shall
have been executed and delivered by each of the Company and Rakepoll Finance.
8. Governing Law. This Amendment shall be governed by and construed
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under the laws of the State of New York (irrespective of its choice of law
principles).
9. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date first written above.
GENSIA SICOR INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
President
RAKEPOLL FINANCE N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
Chairman of the Board
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