AMENDMENT NO. 2 TO THE THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 10.1
AMENDMENT NO. 2 TO THE THIRD AMENDED AND RESTATED
This AMENDMENT NO. 2 TO THE THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT is dated as of August 5, 2010 (this “Amendment”) and is entered into by and among NeurogesX, Inc., a Delaware corporation (the “Company”), the parties defined as “Investors” in the XXX (as defined below) (each a “Prior Investor,” and collectively, the “Prior Investors”). The Third Amended and Restated Investors’ Rights Agreement dated as of November 14, 2005, as amended, shall be hereinafter referred to as the “XXX.”
RECITALS
WHEREAS, the Company and the undersigned Prior Investors (on behalf of all Prior Investors) desire to amend Section 1.14 of the XXX; and
WHEREAS, Section 4.3 of the XXX allows the amendment of the XXX with the written consent of the Company and the holders of at least a majority of the Registrable Securities, as defined in the XXX, outstanding.
WHEREAS, the undersigned Prior Investors hold sufficient shares of Registrable Securities to amend the XXX pursuant to Section 4.3 thereto.
NOW, THEREFORE, in consideration of the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged by the parties hereto, the parties hereby covenant and agree as follows:
1. Amendment to Section 1.14. Section 1.14 of the XXX is hereby amended and restated to read in its entirety as follows:
“1.14 Termination/Deferral of Registration Rights. The right of any Holder to request registration or inclusion in any registration pursuant to Section 1.2, 1.3 or 1.5 shall terminate on June 30, 2013. Prior to such termination, a Holder of Registrable Securities consisting of less than 1% of the then outstanding shares of capital stock of the Company shall not have registration rights under Sections 1.2 or 1.5 hereof during any period of time prior to such termination when all Registrable Securities held (or deemed held) by such Holder may be sold pursuant to Rule 144 under the Securities Act (or any successor regulation) during a three month period. For purposes of this Agreement the term “Qualified IPO” shall mean the initial public offering of Common Stock of the Company which occurred on May 1, 2007.”
2. Except as set forth in this Amendment, the provisions of the XXX shall remain unchanged and shall continue in full force and effect.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
| NEUROGESX, INC. | ||
| By: | /s/ Xxxxxxx XxXxxxx | |
| Xxxxxxx XxXxxxx | ||
| President and Chief Executive Officer | ||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
| PRIOR INVESTOR: | ARCH Venture Fund V, L.P. | |||||
| By: | ARCH Venture Partners V, L.P. | |||||
| Its: | General Partner | |||||
| By: | ARCH Venture Partners V, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Its: | Managing Director | |||||
| ARCH V Entrepreneurs Fund, L.P. | ||||||
| By: | ARCH Venture Partners V, L.P. | |||||
| Its: | General Partner | |||||
| By: | ARCH Venture Partners V, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Its: | Managing Director | |||||
| Healthcare Focus Fund, L.P. | ||||||
| By: | ARCH Venture Partners V, L.P. | |||||
| Its: | General Partner | |||||
| By: | ARCH Venture Partners V, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Its: | Managing Director | |||||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
| PRIOR INVESTOR: | Montreux Equity Partners II SBIC, L.P. | |||||
| By: | Montreux Equity Management II SBIC, | |||||
| LLC, its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx III | |||||
| Name: | Xxxxxx X. Xxxxxx III | |||||
| Title: | Managing Member | |||||
| Montreux Equity Partners III SBIC, L.P. | ||||||
| By: | Montreux Equity Management III SBIC, | |||||
| LLC, its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx III | |||||
| Name: | Xxxxxx X. Xxxxxx III | |||||
| Title: | Managing Member | |||||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
| PRIOR INVESTOR: | Pacven Xxxxxx Ventures V, L.P. | |||||
| By: | Pacven Xxxxxx Management V, Co., Ltd. | |||||
| Its: | General Partner | |||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, Director | ||||||
| Pacven Xxxxxx Ventures Parallel V-A C.V. | ||||||
| By: | Pacven Xxxxxx Management V, Co., Ltd. | |||||
| Its: | General Partner | |||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, Director | ||||||
| Pacven Xxxxxx Ventures Parallel V-B C.V. | ||||||
| By: | Pacven Xxxxxx Management V, Co., Ltd. | |||||
| Its: | General Partner | |||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, Director | ||||||
| Pacven Xxxxxx Ventures V-QP Associates Fund, L.P. | ||||||
| By: | Pacven Xxxxxx Management V, Co., Ltd. | |||||
| Its: | General Partner | |||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, Director | ||||||
| Seed Ventures III Pte. Ltd. | ||||||
| By: | /s/ Loo Xxxx Xxxx | |||||
| Loo Xxxx Xxxx, Liquidator | ||||||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
| PRIOR INVESTOR: | International Venture Capital Investment III Corporation | |||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, President | ||||||
| International Venture Capital Investment Corporation | ||||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, President | ||||||
| Asian Venture Capital Investment Corporation | ||||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan, President | ||||||
| Pacven Xxxxxx Ventures V Associates Fund, L.P. | ||||||
| By: | /s/ Lip-Bu Tan | |||||
| Lip-Bu Tan | ||||||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
| PRIOR INVESTOR: | The Global Life Sciences Ventures Funds II GmbH & Co. KG | |||||
| Represented by its General Partner The Global Life Sciences Ventures GmbH | ||||||
| By: | /s/ Hanns-Xxxxx Xxxxx | |||||
| Title: | Hanns-Xxxxx Xxxxx, Partner | |||||
| The Global Life Sciences Ventures Funds II Limited Partnership | ||||||
| Represented by its General Partner | ||||||
| Global Life Sciences Ventures (GP) Limited | ||||||
| By: | /s/ Xxxxxx Helyor | |||||
| Title: | Xxxxxx Helyor, Director | |||||
[Signature Page to Amendment No. 2 to the NeurogesX Third Amended and Restated Investors’ Rights Agreement]
