AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
Exhibit 4.3
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 to Registration Rights Agreement (this “Amendment”) dated as of April 23,
2009 is entered into by and between Santarus, Inc., a Delaware corporation (the “Company”) and
Cosmo Technologies Limited, an Irish corporation (the “Investor”). Capitalized terms used and not
otherwise defined herein that are defined in this Amendment shall have the meanings given such
terms in the Original Agreement (as defined below).
RECITALS
WHEREAS, the Company and the Investor entered into that certain Stock Issuance Agreement dated
as of December 10, 2008 (the “Issuance Agreement”), pursuant to which the Company agreed to issue
to the Investor (a) at the Initial Closing, six million (6,000,000) shares (the “Initial Shares”)
of the Company’s Common Stock, par value $0.0001 per share (“Common Stock”) and (b) at the election
of the Investor, at each Milestone Closing, the number of shares of Common Stock (in each case, the
“Milestone Shares” and, together with the Initial Shares, the “Shares”) equal to the Milestone
Payment then due as calculated in accordance with the Issuance Agreement;
WHEREAS, the Company and the Investor entered into that certain Registration Rights Agreement
dated as of December 10, 2008 (the “Original Agreement”), providing for the registration for resale
of the Initial Shares and, when and if issued, the Milestone Shares;
WHEREAS, pursuant to Section 2(a) of the Original Agreement, on January 20, 2009 the Company
filed with the Commission a Registration Statement on Form S-3 (the “Form S-3 Registration
Statement”) covering the resale of the Initial Shares and, when and if issued, the Milestone Shares
for an offering to be made on a continuous basis pursuant to Rule 415;
WHEREAS, pursuant to letters from the Commission to the Company dated February 5, 2009, March
6, 2009 and April 6, 2009, the Commission indicated that the Milestone Shares that may be issued
pursuant to the License Agreement may not be registered on the Form S-3 Registration Statement and
that the Form S-3 Registration Statement must be amended to remove the Milestone Shares;
WHEREAS, the Company and the Investor now desire to amend the Original Agreement as set forth
herein; and
WHEREAS, the Original Agreement provides that an amendment of the Original Agreement may be
effected by the written consent of the Company and the Investor.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company and the Investor agree as follows:
1. Definitions.
The following definitions are hereby amended in their entirety to read as follows:
“Effective Deadline” means April 30, 2009.
“Effectiveness Period” means the earlier of (i) such time as all of the
Registrable Securities covered by the applicable Registration Statement have
been publicly sold by the Holders or (ii) the date that all Registrable
Securities covered by the applicable Registration Statement may be sold by
all the Holders without volume or manner of sale restrictions pursuant to
Rule 144.
The following definitions are hereby inserted into Section 1 of the Original Agreement:
“Initial Registration Statement” means a registration statement of the
Company filed under the Securities Act that covers the resale of any of the
Initial Shares that are Registrable Securities pursuant to the provisions of
this Agreement, amendments and supplements to such Initial Registration
Statement or Prospectus, including pre- and post-effective amendments, all
exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such Initial Registration Statements.
“Milestone Closing” has the meaning set forth in the Issuance Agreement.
“Subsequent Effectiveness Deadline” means the date that is the earlier of
(i) 45 calendar days after the relevant Subsequent Filing Deadline (or, in
the event the Commission reviews and has written comments to the Subsequent
Registration Statement, the date that is 75 calendar days after the relevant
Subsequent Filing Deadline) and (ii) the final day of the applicable
Milestone Restricted Period (as defined in the Issuance Agreement);
provided, however, that if the Subsequent Effectiveness Deadline falls on a
Saturday, Sunday or other day that the Commission is closed for business,
the Subsequent Effectiveness Deadline shall be extended to the next Business
Day on which the Commission is open for business.
“Subsequent Filing Deadline” means the date on which the Company files with
the Commission its first periodic report on Form 10-Q or Form 10-K, as
applicable, following the date that is 45 calendar days after the relevant
Milestone Closing; provided, however, that if the Subsequent Filing Deadline
falls on a Saturday, Sunday or other day that the Commission is closed for
business, the Subsequent Filing Deadline shall be extended to the next
Business Day on which the Commission is open for business.
“Subsequent Registration Statement” means a registration statement of the
Company filed under the Securities Act that covers the resale of any of the
Milestone Shares that are Registrable Securities pursuant to the provisions
of this Agreement, amendments and supplements to such Subsequent
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Registration Statement or Prospectus, including pre- and post-effective
amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such Subsequent Registration
Statements.
2. Registration. Section 2 of the Original Agreement is hereby amended in its
entirety to read as follows:
“(a) On or prior to the Filing Deadline, the Company shall prepare and
file with the Commission an Initial Registration Statement on Form S-3
covering the resale of the Initial Shares for an offering to be made on a
continuous basis pursuant to Rule 415. The Initial Registration Statement
shall be on Form S-3 (except if the Company is not then eligible to register
for resale the Initial Shares on Form S-3, in which case such registration
shall be on another appropriate form in accordance with the Securities Act
and the Exchange Act and as consented to by the Investor).
(b) The Company shall use its best efforts to cause the Initial
Registration Statement to be declared effective by the Commission no later
than the Effectiveness Deadline. Thereafter, the Company shall use its best
efforts to keep the Initial Registration Statement continuously effective
under the Securities Act until the Effectiveness Period applicable to such
Initial Registration Statement. The Company shall promptly notify the
Investor via facsimile or electronic mail of the effectiveness of the
Initial Registration Statement on or before the second Trading Day after the
date that the Company telephonically confirms effectiveness with the
Commission.
(c) On or prior to each Subsequent Filing Deadline, the Company shall
prepare and file with the Commission a Subsequent Registration Statement on
Form S-3 covering the resale of up to the number of Milestone Shares equal
to the Milestone Payment then due for an offering to be made on a continuous
basis pursuant to Rule 415. Such Subsequent Registration Statement shall be
on Form S-3 (except if the Company is not then eligible to register for
resale the Milestone Shares on Form S-3, in which case such registration
shall be on another appropriate form in accordance with the Securities Act
and the Exchange Act and as consented to by the Investor).
(d) The Company shall use its best efforts to cause each Subsequent
Registration Statement to be declared effective by the Commission no later
than the Subsequent Effectiveness Deadline. Thereafter, the Company shall
use its best efforts to keep each Subsequent Registration Statement
continuously effective under the Securities Act until the Effectiveness
Period applicable to such Subsequent Registration Statement. The Company
shall promptly notify the Investor via facsimile or electronic mail of the
effectiveness of each Subsequent Registration Statement on or before the
second Trading Day after the date that the Company telephonically confirms
effectiveness with the Commission.
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(e) At least ten (10) Trading Days prior to the first anticipated
filing date of a Registration Statement for any registration under this
Agreement, the Company will notify the Investor of the information the
Company requires from the Investor, which shall be completed and delivered
to the Company promptly upon request and, in any event, within three (3)
Trading Days prior to the applicable anticipated filing date. Investor
further agrees that it shall not be entitled to be named as a selling
securityholder in the Registration Statement or use the Prospectus for
offers and resales of Registrable Securities at any time, unless it has
returned to the Company a response to any requests for information as
described in the previous sentence. Investor acknowledges and agrees that
the information as described in this Section 2(e) will be used by the
Company in the preparation of the Registration Statement and hereby consents
to the inclusion of such information in the Registration Statement.”
3. Effectiveness of Amendment. In accordance with Section 6(d) of the Original
agreement, this Amendment is effective when signed by the Company and the Investor.
4. No other waivers; modifications. Except as otherwise expressly provided in this
Amendment, no other portion, section or provision of the Original Agreement is waived or amended
and the Original Agreement shall continue in full force and effect, in accordance with its terms.
5. Execution and Counterparts. 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.
6. Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Amendment shall be determined in accordance with the provisions of the
Issuance Agreement.
7. Severability. If one or more provisions of this Amendment are held to be
unenforceable under applicable law, such provision shall be excluded from this Amendment and the
balance of the Amendment shall be interpreted as if such provisions were so excluded and shall be
enforceable in accordance with its terms.
8. Titles and Subtitles. The titles and subtitles used in this Amendment are used for
convenience only and are not to be considered in construing or interpreting this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first written
above.
| SANTARUS, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| COSMO TECHNOLOGIES LIMITED |
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| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxx | |||
| Title: | Director | |||
[Signature Page To Amendment No. 1 To Registration Rights Agreement]
