EXHIBIT 4.2.3
SYNTA PHARMACEUTICALS CORP.
SECOND AMENDMENT
TO THE
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Second Amendment (the "AMENDMENT") to the Amended and Restated
Investor Rights Agreement, dated December 13, 2002, as amended by the First
Amendment to the Amended and Restated Investor Rights Agreement, dated January
11, 2005, by and among Synta Pharmaceuticals Corp., a Delaware corporation (the
"COMPANY"), and the Investors named therein (collectively, the "INVESTOR RIGHTS
AGREEMENT"), is made as of January 31, 2007, by and among the Company and the
Investors. Capitalized terms used herein but not defined shall have the meanings
ascribed to such terms in the Investor Rights Agreement.
WHEREAS, Section 4 of the Investor Rights Agreement sets forth certain
rights granted to the Investors with respect to the right of first refusal (the
"RIGHT OF FIRST REFUSAL") to purchase New Securities, as defined in Section 1(k)
of the Investor Rights Agreement, issued by the Company and the obligation of
the Company to provide notice to the Investors of any such issuances;
WHEREAS, clauses (i) through (vii) of Section 1(k) of the Investor Rights
Agreement exclude from the definition of New Securities certain securities
issued by the Company;
WHEREAS, on March 15, 2006, the Company adopted the Synta Pharmaceuticals
Corp. 2006 Stock Plan (the "2006 STOCK PLAN"), pursuant to which the Company has
issued securities to Participants, as defined in the 2006 Stock Plan, from such
adoption through the date hereof (the "2006 STOCK PLAN ISSUANCES"), and intends
to issue additional securities in accordance with the terms of the 2006 Stock
Plan;
WHEREAS, the 2006 Stock Plan Issuances may give rise to the Investors'
Right of First Refusal with respect to such issuances and the Company's
obligation to provide notice thereof;
WHEREAS, the Company and the Investors wish to amend the Investor Rights
Agreement by amending the definition of New Securities to exclude all securities
issued under any equity compensation plans approved by the Board of Directors of
the Company from the definition thereof;
WHEREAS, the Investors wish to waive the Right of First Refusal with
respect to the 2006 Stock Plan Issuances and the Company's obligation to provide
notice thereof; and
WHEREAS, in accordance with Section 5.7 of the Investor Rights Agreement,
by executing and delivering this Amendment, the Company and each Investor has
approved this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Amendment and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENT OF INVESTOR RIGHTS AGREEMENT.
The Investor Rights Agreement is hereby amended by deleting clause (iii) of
Section 1(k) in its entirety and by substituting in lieu thereof the following:
"(iii) up to 23,172,930 shares of Common Stock issued or issuable to
employees, consultants or directors of the Company pursuant to equity
compensation plans or arrangements approved by the Board of Directors of
the Company (including shares issued or issuable upon exercise of options
previously granted), which number of shares (A) shall be adjusted upwards
to accommodate any increases in the number of shares of Common Stock
issuable under such plans and arrangements pursuant to the express terms
and provisions thereof (for example, pursuant to any "evergreen" or similar
provision set forth in such plans or arrangements) or (B) may be adjusted
upward by the affirmative vote of the Board of Directors of the Company;"
2. WAIVER OF RIGHT OF FIRST REFUSAL.
In accordance with Section 5.7 of the Investor Rights Agreement, the
undersigned Investors, being all of the Investors that are a party to the
Investor Rights Agreement, hereby waive the Right of First Refusal in connection
with the 2006 Stock Plan Issuances of the Company up through and including the
date of this Amendment and the obligation of the Company to provide notice
thereof.
3. MISCELLANEOUS.
(i) Except as contemplated by this Amendment, all of the terms and
conditions of the Investor Rights Agreement shall remain in full force and
effect.
(ii) This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
COMPANY:
SYNTA PHARMACEUTICALS CORP.
By: /s/ SAFI ▇. ▇▇▇▇▇▇▇
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Name: Safi ▇. ▇▇▇▇▇▇▇, Ph.D.
Title: President and Chief Executive Officer
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[Second Amendment to the Amended and Restated Investor Rights Agreement,
Signature Page, CONTINUED]
INVESTORS:
CxSYNTA LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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GOLLUST TRUST II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
WYANDANCH PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
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/s/ ▇▇▇▇▇▇ ▇. DAY
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By: /s/ ▇▇▇▇▇▇ ▇. DAY
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Name: ▇▇▇▇▇▇ ▇. Day
Title
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[Second Amendment to the Amended and Restated Investor Rights Agreement,
Signature Page, CONTINUED]
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