Exhibit 4.4
EXECUTION COPY
ALTUS PHARMACEUTICALS INC.
AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This Amended and Restated Right of First Refusal and Co-Sale Agreement
(this "Agreement") dated as of May 21, 2004 is entered into by and among Vertex
Pharmaceuticals Incorporated, a Massachusetts corporation ("Vertex"), the
persons and entities listed on Exhibit A attached hereto (individually, a
"Purchaser" and collectively, the "Purchasers"), Altus Pharmaceuticals Inc., a
Delaware corporation (the "Company") (f/k/a "Altus Biologics Inc."), each of the
executives of the Company listed on Exhibit B hereto (individually, an
"Executive" and collectively, the "Executives") who is now, or after the date
hereof becomes, an executive of the Company and joins in and becomes a party to
this Agreement by executing and delivering to the Company an Instrument of
Accession in the form of Annex 1 hereto, and each other holder of 1% or more of
the outstanding voting stock of the Company listed on Exhibit C hereto
(individually, an "Other Holder" and collectively, the "Other Holders"), who
owns, or shall after the date hereof acquire, 1% or more of the outstanding
voting stock of the Company and joins in and becomes a party to this Agreement
by executing and delivering to the Company an Instrument of Accession in the
form of Annex 2 hereto, and amends and restates that certain Right of First
Refusal and Co-Sale Agreement among the Company and the parties thereto dated
September 26, 2001, as amended as of December 7, 2001 (the "Prior Agreement").
Vertex, the Purchasers and the Other Holders are sometimes referred to in this
agreement as the "Stockholders." Executives and Former Employees (as defined
below) are expressly excluded from the definition of Stockholders,
notwithstanding the fact that an Executive may hold 1% or more of the
outstanding voting stock of the Company. For the purposes of this Agreement a
"Former Employee" shall be any Executive who ceases to be employed by or serve
as a consultant to the Company. A Former Employee ceases to be an Executive for
all purposes under this Agreement.
Recitals
WHEREAS, the Company, Vertex, certain of the Purchasers, the Executives and
the Other Holders have previously entered into the Prior Agreement;
WHEREAS, the Company and certain of the Purchasers are parties to that
certain Series C Convertible Preferred Stock and Warrant Purchase Agreement of
even date herewith (the "Purchase Agreement");
WHEREAS, the execution and delivery of this Agreement is a condition to the
consummation of the transactions contemplated by the Purchase Agreement;
WHEREAS, the parties to the Prior Agreement desire to amend and restate the
Prior Agreement in its entirety so as to read in its entirety as set forth
herein;
WHEREAS, the undersigned parties represent the necessary voting power in
order to amend the Prior Agreement as set forth in Section 11.5 thereof; and
WHEREAS, the purpose of this Agreement is to protect the management and
control of the Company from influence by any person not acceptable to the
Stockholders, and to assist the Stockholders in selling their Shares if they so
desire.
NOW, THEREFORE, for valuable consideration, it is agreed as follows.
1. Certain Definitions.
As used in this Agreement, the term "Shares" shall include all shares of
capital stock of the Company held by Stockholders, Executives and/or Former
Employees, whether now owned or hereafter acquired. For purposes of calculating
any person's "pro rata" ownership of Shares, all shares of capital stock that
are convertible into common stock, $.01 par value per share, of the Company (the
"Common Stock") shall be deemed to have been converted into Common Stock of the
Company, and for purposes of Sections 5 and 6 only, the warrants held by Vertex
as of the date hereof, warrants (the "Series B Warrants") held by certain
Purchasers as of the date hereof to purchase shares of Series B Convertible
Preferred Stock, $.01 par value per share, (the "Series B Preferred") and the
warrants (the "Series C Warrants") issued on the date hereof to the Purchasers
of Series C Convertible Preferred Stock, $.01 par value per share, (the "Series
C Preferred") to purchase shares of Series C Preferred (the Series C Warrants
together with the Series B Warrants, the "Purchaser Warrants"), so long as they
remain outstanding, shall be deemed to have been exercised.
2. Restrictions on Transfer.
2.1 Any sale, transfer or other disposition, whether voluntarily or by
operation of law ("Transfer") of any of the Shares by a Stockholder, Executive
or Former Employee, other than according to the terms of this Agreement, shall
be void and shall not transfer any right, title, or interest in or to any of
such Shares to the purported transferee.
2.2 An Executive may not Transfer Shares except in accordance with
Section 3 or Section 8.
2.3 An original copy of this Agreement, duly executed by each of the
parties hereto, shall be delivered to the Secretary of the Company and
maintained at the principal executive office of the Company and made available
for inspection by any person requesting it.
2.4 Each Stockholder, Executive and Former Employee agrees to present
the certificates representing the Shares presently owned or hereafter acquired
by him, her or it to the Secretary of the Company and cause the Secretary to
stamp on such certificates in a prominent manner the following legend in
substantially the following form:
"The sale or other disposition of any of the shares represented by
this certificate is restricted by an Amended and Restated Right of
First Refusal and Co-Sale Agreement, dated as of May 21, 2004, as
amended from time to time, among certain of the shareholders of this
corporation and this corporation (the "Agreement"). A copy of the
Agreement is available for
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inspection during normal business hours at the principal executive
office of this corporation."
3. Transfers Not Subject to Restrictions. Any Stockholder, Executive or
Former Employee may Transfer Shares (i) to his or her parents, spouse, children,
siblings, in-laws, grandchildren, or children or grandchildren of siblings or
in-laws, or to a trust established for the benefit of himself or herself or any
such family member, or dispose of them under his or her will (in the case of a
Stockholder, Executive or Former Employee who is a natural person), (ii) to an
affiliate (as such term is defined under the Securities Act of 1933, as amended
(the "Securities Act")) of such Stockholder (in the case of a Stockholder that
is an entity) or (iii) to a partner, a retired partner, member or retired member
of such Stockholder, or to the estate of any such partner or member (in the case
of a Stockholder that is a partnership or limited liability company), without
compliance with Sections 4 through 6, provided that any transferee pursuant to
clause (i), (ii) or (iii) above delivers to the Company and the Stockholders a
written instrument agreeing to be bound by the terms of this Agreement as if it
were the transferor.
4. Offer of Sale; Notice of Proposed Sale.
If any Stockholder or Former Employee desires to Transfer any of his, her
or its Shares, or any interest in such Shares, in any transaction other than
pursuant to Section 3 of this Agreement, such Stockholder or Former Employee
(the "Selling Stockholder") shall first deliver written notice of his, her or
its desire to do so (the "Notice") to the Company and each of the Stockholders
in the manner prescribed in Section 12.4 of this Agreement. The Notice must
specify: (i) the name and address of the party to which the Selling Stockholder
proposes to sell or otherwise dispose of the Shares or an interest in the Shares
(the "Offeror"), (ii) the number, class and series of Shares the Selling
Stockholder proposes to sell or otherwise dispose of (the "Offered Shares"),
(iii) the consideration per Share to be delivered to the Selling Stockholder for
the proposed sale, transfer or disposition, and (iv) all other material terms
and conditions of the proposed transaction.
5. Stockholders' Option to Purchase.
5.1 Subject to Section 6, each Stockholder other than the Selling
Stockholder (the "Non-Selling Stockholders") shall have an option, exercisable
for a period of fifteen (15) business days from the date of delivery of the
Notice, to purchase, on a pro rata basis according to the number of Shares owned
by such Non-Selling Stockholder, the Offered Shares for the consideration per
share and on the terms and conditions set forth in the Notice. Such option shall
be exercised by delivery by such Non-Selling Stockholder of written notice to
the Secretary of the Company. Notwithstanding the foregoing, in no event shall
Vertex be entitled to exercise any rights under this Section 5 to the extent
that any purchase hereunder by Vertex would result in Vertex holding more than
ten percent (10%) of the Company's issued and outstanding shares of Series B
Preferred or Series C Preferred.
5.2 Subject to the terms of Section 6, each Non-Selling Stockholder
who does not elect to purchase Shares pursuant to Section 5.1 may, within the
same 15-day period referred to in Section 5.1, notify the Secretary of the
Company of its desire to participate in the sale of the
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Shares on the terms set forth in the Notice, and the number, class and series of
Shares it wishes to sell.
5.3 In the event options to purchase have been exercised by the
Non-Selling Stockholders with respect to some but not all of the Offered Shares,
those Non-Selling Stockholders who have exercised their options within the
15-day period specified in Section 5.1 shall have an additional option, for a
period of ten (10) days next succeeding the expiration of such 15-day period, to
purchase all or any part of the balance of such Offered Shares on the terms and
conditions set forth in the Notice, which option shall be exercised by the
delivery of written notice to the Secretary of the Company. In the event there
are two or more such Non-Selling Stockholders that choose to exercise the
last-mentioned option for a total number of Offered Shares in excess of the
number available, the Offered Shares available for each such Non-Selling
Stockholders option shall be allocated to such Non-Selling Stockholder pro rata
based on the number of Shares owned by the Non-Selling Stockholder so electing.
5.4 If the options to purchase the Offered Shares are exercised in
full by the Non-Selling Stockholders, the Company shall immediately notify all
of the Non-Selling Stockholders of that fact. The closing of the purchase of the
Offered Shares shall take place at the offices of the Company no later than five
(5) days after the date of such notice to the Non-Selling Stockholders.
5.5 The option to purchase provided for in this Section 5 shall not
apply to any Approved Sale as that term is defined in Section 7.
5.6 The option provided for in this Section 5 shall have priority over
any first refusal rights held by the Company or by any other parties to this
Agreement.
6. Failure to Fully Exercise Options; Co-Sale.
6.1 If the Non-Selling Stockholders do not exercise their options to
purchase all of the Offered Shares within the periods described in this
Agreement (the "Option Period"), then all options of the Non-Selling
Stockholders to purchase the Offered Shares, whether exercised or not, shall
terminate, and each Non-Selling Stockholder which has, pursuant to Section 5,
expressed a desire to sell Shares in the transaction (a "Participating
Stockholder"), shall be entitled to do so pursuant to this Section; provided,
however, that with respect to Offered Shares consisting of Series C Preferred,
the Participating Stockholders may only elect to sell Shares consisting of
Series C Preferred. The Company shall promptly, on expiration of the Option
Period, notify the Selling Stockholder of the number of Shares the Participating
Stockholders wish to sell, specifying the class and series of such Shares and
the number of Shares within each class and series. The Selling Stockholder shall
use his, her or its best efforts to interest the Offeror in purchasing, in
addition to the Offered Shares, the Shares that any Participating Stockholder
wishes to sell. If the Offeror does not wish to purchase all of the Shares made
available by the Selling Stockholder and the Participating Stockholders, then
each Participating Stockholder and the Selling Stockholder shall be entitled to
sell, at the price and on the terms and conditions set forth in the Notice
(provided that the price set forth in the Offer with respect to shares of Common
Stock shall be appropriately adjusted, if necessary, based on the
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conversion ratio of any Convertible Preferred Stock to be sold), a portion of
the Shares being sold to the Offeror as follows:
(i) With respect to the Offered Shares consisting of shares of
Series C Preferred, that number of shares of Series C Preferred in the same
proportion as such Selling Stockholder's or Participating Stockholder's
ownership of Series C Preferred bears to the aggregate number of shares of
Series C Preferred owned by the Selling Stockholder and the Participating
Stockholders; and
(ii) With respect to the Offered Shares that do not consist of
shares of Series C Preferred, that number of Shares in the same proportion as
such Selling Stockholder's or Participating Stockholder's ownership of Shares
bears to the aggregate number of Shares owned by the Selling Stockholder and the
Participating Stockholders.
The transaction contemplated by the Notice shall be consummated not later than
sixty (60) days after the expiration of the Option Period.
6.2 If the Participating Stockholders do not elect to sell the full
number of Shares which they are entitled to sell pursuant to Section 6.1, the
Selling Stockholder shall be entitled to sell to the Offeror, according to the
terms set forth in the Notice, that number of his, her, or its own Shares which
equals the difference between the number of Shares desired to be purchased by
the Offeror and the number of Shares the Participating Stockholders desire to
sell pursuant to Section 6.1. If the Selling Stockholder wishes to Transfer any
such Shares at a price per Share which differs from that set forth in the
Notice, upon terms different from those previously offered to the Stockholders,
or more than sixty (60) days after the expiration of the Option Period, then, as
a condition precedent to such transaction, such Shares must first be offered to
the Stockholders on the same terms and conditions as given the Offeror, and in
accordance with the procedures and time periods set forth above.
6.3 The proceeds of any sale made by the Selling Stockholder without
compliance with the provisions of this Section 6 shall be deemed to be held in
constructive trust in such amount as would have been due to the Participating
Stockholders if the Selling Stockholder had complied with this Agreement.
7. Voting and Required Sale. If any person or entity offers to acquire all
or substantially all of the assets or business of the Company, by merger, sale
of assets, stock purchase or otherwise, and
(i) the aggregate consideration payable in respect thereof is
equal to or greater than the Threshold Price (as defined below) and the
Purchasers holding 55% in interest of the voting power of the then outstanding
shares of Series B Preferred and Series C Preferred voting together as a single
class on an as converted basis have voted in favor of such transaction (whether
at an annual or special meeting of stockholders or by written consent in lieu
thereof); or
(ii) the aggregate consideration payable in respect thereof is
less than the Threshold Price and at least 55% of the voting power of all issued
and outstanding shares of capital stock of the Company (other than issued and
outstanding shares of voting capital stock
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held by Vertex or any holder of capital stock of the Company for which the
transaction is an Interested Transaction (as defined below)) have voted in favor
of such transaction (whether at an annual or special meeting of stockholders or
by written consent in lieu thereof) (any of (i) or (ii) above shall be referred
to herein as an "Approved Sale")); then
Vertex, the Executives and the Former Employees (the "Obligees") shall be
obligated to (a) vote all of their Shares in favor of the transaction, (b)
sell, transfer or exchange all of their Shares in connection with such
transaction on the same terms as those consented to by such consenting
stockholders of the Company's voting capital stock (with appropriate
adjustment to reflect the conversion of convertible securities and the
preferences and priorities of the Company's preferred stock, $.01 par value
per share (the "Preferred Stock")), and (c) execute and deliver such
instruments of conveyance and transfer and take such other action,
including executing any purchase agreement, merger agreement, indemnity
agreement, escrow agreement or related documents, as may be reasonably
required by the Company in order to carry out the terms and provisions of
this Section 7. If the Approved Sale is structured as a merger or
consolidation, the Obligees shall waive any dissenters' rights, appraisal
rights or similar rights in connection with the Approved Sale. If an
Obligee fails or refuses to vote or sell his, her or its Shares as required
by, or votes his, her or its Shares in contravention of, this Section 7,
then each such Obligee hereby grants to the Secretary of the Company an
irrevocable proxy, coupled with an interest, to vote such Shares in
accordance with this Section 7, and hereby appoints the Secretary of the
Company its attorney in fact, to sell such Shares in accordance with the
terms of this Section 7. At the closing of the Approved Sale, each Obligee
shall deliver, against receipt of the consideration payable in such
transaction, certificates representing the Shares which such Obligee holds
of record or beneficially, with all endorsements necessary for transfer. In
the event that an Obligee fails or refuses to comply with the provisions of
this Section 7, the Company, the Stockholders and the purchaser in such
transaction, at their option, may elect to proceed with such transaction
notwithstanding such failure or refusal and, in such event and upon tender
of the specified consideration to any such Obligee, the rights of any such
party with respect to the Shares shall cease.
The "Threshold Price" shall mean $8.549420 times the number of shares
of Common Stock then outstanding (and assuming the conversion of all
outstanding convertible preferred stock, the exercise of all outstanding
options and the exercise of all outstanding warrants (options and warrants
that are outstanding at any point in time are hereinafter referred to as
"Common Stock Equivalents")).
An "Interested Transaction" with respect to any "Person" (which for
purposes of this Agreement shall include persons and entities) shall mean a
transaction between the Company and any other corporation, limited
liability company, partnership, association, organization or other entity
(the "Transaction Party") if such Person either (i) is an officer,
director, member, partner or affiliate of the Transaction Party or (ii) has
a "Financial Interest" (as defined below) in the Transaction Party or with
respect to the transaction (other than a financial interest resulting
solely from such Person's proportionate interest as a stockholder of the
Company)).
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A Person has a "Financial Interest" in a Transaction Party or a
transaction if such Person, directly or indirectly, has (i) an ownership or
investment interest in the Transaction Party; (ii) a compensation
arrangement with the Transaction Party or with respect to the transaction;
or (iii) a right to acquire an ownership or investment interest in, or
compensation arrangement with the Transaction Party; provided, however,
that the ownership of 3% or less of the total outstanding equity of a
Transaction Party by any Person shall not constitute a Financial Interest.
Notwithstanding the foregoing, a transaction shall not constitute an
Interested Transaction as to any Person who a majority of the Disinterested
Directors (as defined below) determine in good faith does not have a
material financial interest in such transaction other than such Person's
ownership of voting capital stock of the Company. "Disinterested Directors"
shall mean the directors of the Company other than any director nominated
solely by the Person regarding whom the determination of an Interested
Transaction is to be made.
In the event that the Secretary of the Company is unwilling or unable to
act as attorney in fact as set forth in this Section 7, the holders of a
majority of the shares held by the Purchasers shall be entitled to appoint
a new attorney in fact in substitution thereof.
8. Inapplicability of Certain Restrictions to Approved Sales. The
restrictions contained in Sections 2, 3, 4, 5 and 6 shall not apply to any
Transfer of Shares by any party hereto in connection with any Approved Sale.
9. Required Exercise of Convertible Securities.
(a) In connection with a firm-commitment underwritten public offering
of the Common Stock pursuant to a registration statement under the Securities
Act (a "Public Offering"), Vertex will exercise a sufficient number of its then
outstanding warrants for Common Stock ("Vertex Warrants") such that all
outstanding warrants (Vertex Warrants together with all other outstanding
warrants for Common Stock and capital stock of the Company convertible into
Common Stock, other than (i) warrants with a per share exercise price of less
than $.05 and (ii) the Purchaser Warrants other than the Vertex Warrants (the
"Outstanding Warrants")) shall equal not more than 10% of the Common Stock
outstanding after the closing of the Public Offering, including the exercise of
any over-allotment option (assuming for the purpose of determining the number of
shares of Common Stock outstanding, the conversion of all outstanding
convertible securities (other than stock options held by current and former
directors, officers and employees) and the exercise of all outstanding warrants
for Common Stock (the "Outstanding Common Stock Equivalents")).
(b) [Intentionally Omitted]
(c) In the event the Company intends to sell shares of its voting
capital stock in a Public Offering, it shall provide Vertex with notice of such
intent. Such notice shall contain a detailed analysis of the general parameters
of the expected offering with the Company's best estimates of the number of
shares that will be sold, the aggregate number of shares of voting capital stock
that are likely to be outstanding after the closing of the Public Offering
(including the closing of any over-allotment option) and the number of Vertex
Warrants that the Company expects Vertex will be required to exercise.
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(d) Upon the closing of the Public Offering, including the closing of
the exercise of any over-allotment option or the expiration of the
over-allotment option, the Company shall deliver notice (the "Vertex Notice") to
Vertex, including a detailed calculation of the number of Vertex Warrants Vertex
is required to exercise (the "Required Amount") such that the Outstanding
Warrants shall equal not more than 10% of the Common Stock outstanding after the
closing of the Public Offering, calculated as provided in Section 9(a) above.
Vertex shall within three (3) business days of the Vertex Notice, complete the
required exercise, including payment of the aggregate exercise price.
(e) In the event Vertex does not complete an exercise of the Required
Amount within two (2) business days of the Vertex Notice, Vertex shall contact
the President of the Company and schedule to meet in person with the President
of the Company and its representatives as soon as practicable but in any event
such meeting shall occur within seven (7) business days of the Vertex Notice to
discuss the disputed Required Amount. If such dispute cannot be resolved at such
meeting, then within two (2) business days of such meeting (or if such meeting
does not occur within such seven (7) business day-period, then within ten (10)
business days of the Vertex Notice), the Company's independent accountants shall
certify by notice delivered to Vertex the independent accountants' understanding
and belief as to the Required Amount (the "Accountants Required Amount").
(f) If as of the close of business on the fifth (5th) business day
following the accountants' notice, Vertex has not yet exercised the Accountants
Required Amount and delivered to the Company the aggregate exercise price
therefor, the Company shall be entitled to deem the Accountants Required Amount
exercised by Vertex as of the close of business on such date, to cancel the
exercised Vertex Warrants constituting the Accountants Required Amount, to
reflect such exercise and cancellation in the stock records of the Company and
to hold the shares of Common Stock issued in respect of such deemed exercise as
collateral against payment of the aggregate exercise price for the Accountants
Required Amount. In the event of such a deemed exercise, Vertex shall have an
obligation to pay to the Company the aggregate exercise price as of the date of
such deemed exercise. Vertex agrees not to assert against the Company any
defense, set-off, recoupment, claim or counterclaim, against or in respect of
such payment. Upon payment of the exercise price for the Accountants Required
Amount, the Company shall deliver to Vertex a stock certificate representing the
shares of Common Stock issued upon such deemed exercise. In the event the
exercise price is not paid as of the date of such deemed exercise, the aggregate
exercise price shall accrue interest at a rate that shall initially be 10% per
annum. Such interest rate shall increase two percent per month (e.g., 10%
interest to 12% interest to 14% interest, etc.) until such interest rate reaches
20%, at which time such interest rate shall remain at 20% per annum until
payment has been made in full. If the aggregate exercise price remains unpaid on
the thirtieth (30th) day following such deemed exercise, the Company shall be
entitled at its option to sell such shares and apply the proceeds of the sale to
the satisfaction of the aggregate exercise price and shall be entitled to retain
any remaining amounts for the account of the Company, and Vertex shall have no
further rights with respect to such amounts or such shares. For the avoidance of
doubt, Sections 4, 5 and 6 of this Agreement shall not apply to any sale of
shares of capital stock of the Company pursuant to the preceding sentence.
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10. Termination of Agreement.
10.1 This Agreement shall terminate upon the earlier of the following
events:
(a) The sale of all or substantially all of the assets or business of
the Company, by merger, sale of assets or otherwise (except a merger or
consolidation in which the holders of capital stock of the Company immediately
prior to such merger or consolidation continue to hold immediately following
such merger or consolidation at least 50% by voting power of the capital stock
of the surviving corporation); or
(b) The closing of the public offering of shares of the Common Stock
that triggers mandatory conversion of the Company's Preferred Stock pursuant to
the terms of the Company's Certificate of Incorporation as in effect from time
to time (the "Charter").
10.2 The provisions of Sections 4, 5 and 6 hereof shall not apply to
any sale of Shares pursuant to a transaction referred to in Section 10.1 above.
11. Transfers. No Transfer of Shares by a party hereto shall be valid
unless the transferee provides written notice of such transfer to the Company
and agrees in writing to be bound hereby in the same capacity and to the same
extent as the transferring party.
12. General.
12.1 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
12.2 Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement, each
Stockholder shall be entitled to specific performance of the agreements and
obligations of the Company, the other Stockholders, the Executives, the Former
Employees and the Obligees hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
12.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of The State of Delaware (without reference
to the conflicts of law provisions thereof).
12.4 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two (2) business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one (1) business day
after being sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, in each case to the intended recipient
as set forth below:
If to the Company, at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: President, or at such other address or addresses as may have been
furnished in writing by the Company to the Purchasers, with a copy to Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq.;
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If to a Purchaser, at his or its address set forth in Schedule A hereto, or
at such other address or addresses as may have been furnished to the Company in
writing by such Purchaser. If the Purchaser is a holder of Series B Preferred, a
copy of such notice shall be delivered to Xxxxxxxxx Xxxxx LLP, 200 Page Xxxx
Xxxx, Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxx,
Esq, and if the Purchaser is a holder of Series C Preferred, a copy of such
notice shall be delivered to Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.;
If to an Other Holder, at his or its address set forth on Exhibit C hereto,
or at such other address or addresses as may have been furnished to the Company
in writing by such Other Holder;
If to Vertex, at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: General Counsel, or at such other address or addresses as may have
been furnished to the Company in writing by Vertex;
If to a person in its capacity as attorney under Section 7, at such address
or addresses as may be furnished to the parties hereto at the time of the grant
of the irrevocable proxy under Section 7; and
If to an Executive or Former Employee, at the address of the Company, or at
such other address or addresses as may have been furnished to the Company in
writing by such Executive or Former Employee.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
12.5 Complete Agreement; Amendments. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings
relating to such subject matter. No amendment, modification or termination of,
or waiver under, any provision of this Agreement shall be valid unless in
writing and signed by the Company and Stockholders holding at least 55% of the
voting power of the Shares then held by all of the Stockholders (giving effect
to the conversion into Common Stock of all securities convertible thereinto,
i.e. on an as converted basis); provided, however, this Agreement may be amended
or terminated, and any right hereunder may be waived with respect to all parties
to this Agreement with the consent of less than all parties to this Agreement,
and shall be binding upon each party, even if they do not execute such consent,
only if such amendment, modification or termination applies in the same fashion
to all parties to this Agreement whose rights are being terminated, amended or
waived; provided further, however, any amendment or modification of this
Agreement which would adversely affect the rights or obligations of the
Executives or Former Employees shall require the consent of the Executives and
Former Employees holding at least a majority of the voting power
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of the Shares held by all Executives and Former Employees. For the sake of
clarity, no amendment to this Agreement which adds additional Stockholders,
Executives or Former Employees as parties hereto shall be deemed to adversely
affect any Person who or which is already a party hereto. The Company shall give
prompt written notice of any amendment or termination hereof or waiver hereunder
to any party hereto that did not consent in writing to such amendment,
termination or waiver. Notwithstanding anything to the contrary herein, any
amendment to the Threshold Price in Section 7 hereof shall require the prior
written consent of Vertex only if such amendment occurs between the date hereof
and the second anniversary of the date hereof and is to a price less than
$4.2747100.
12.6 Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
12.7 Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
12.8 Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
12.9 Additional Stockholders. Persons or entities that, after the date
hereof, purchase shares of the Company's capital stock such that they become
holders of at least one percent (1%) of the outstanding voting capital stock of
the Company may, with the prior written approval of the Company (but without the
need for approval by any other party to this Agreement), become parties to this
Agreement by executing and delivering an Instrument of Accession hereto,
whereupon they shall be deemed "Stockholders" for all purposes of this
Agreement.
12.10 Changes in Executives. Anyone who, on or after the date hereof,
becomes an executive officer of the Company shall become party to this Agreement
by executing and delivering an Instrument of Accession hereto, whereupon they
shall be deemed an "Executive" for all purposes of this Agreement. The Company
shall use its best efforts to ensure that anyone who becomes an executive
officer of the Company executes and delivers such an Instrument of Accession.
12.11 Stop Transfer Order. The parties hereto agree that the Company
may instruct its transfer agent to impose transfer restrictions on the Shares to
enforce the provisions of this Agreement, and the Company agrees to do so
promptly.
12.12 Ownership. Each party hereto represents and warrants that he,
she or it is the sole legal and beneficial owner of the Shares he, she or it
currently holds and that no other person has any interest (other than a
community property interest) in such Shares, except as specified on Exhibit A, B
or C hereto. In every case where Exhibit A, B or C indicates that a party is not
the sole legal and beneficial owner of the Shares, such party represents and
warrants
11
that each legal and/or beneficial owner of those Shares (other than a
community property interest) is listed on the Exhibit and that no other person
has any interest in such Shares.
12.13 Further Assurances. Each of the parties hereto shall execute and
deliver such instruments and take such other actions as the other parties may
reasonably request in order to carry out the intent of this Agreement.
12.14 Rights of Purchasers. Each Purchaser shall have the absolute
right to exercise or refrain from exercising any right or rights that such
Purchaser may have by reason of this Agreement including without limitation, the
right to consent to any wavier or amendment of this Agreement. Each such
Purchaser shall not incur any liability to any other Purchaser with respect to
exercising or refraining from exercising any such right or rights.
12.15 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
12.16 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties, except as expressly limited in this
Agreement. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
12.17 Construction and Titles. This Agreement has been negotiated
between the parties hereto, and the language hereof shall not be construed for
or against any party. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement. A reference herein to any Section shall be deemed to include a
reference to every subsection thereof.
12.18 Attorney's Fees. If any action at law or in equity (including
arbitration) is instituted to enforce or interpret the terms of the Agreements,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
12.19 Aggregation of Stock. All Shares held by affiliated entities or
persons shall be aggregated together for purposes of determining the
availability of any rights under this
12
Agreement (provided that no shares shall be attributed to more than one entity
or person within any such group of affiliated entities or persons).
[Remainder of Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
COMPANY:
ALTUS PHARMACEUTICALS INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
VERTEX PHARMACEUTICALS
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: Sr. Vice President and General Counsel
--------------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Title: President and CEO
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Title: Vice President of Science
NOMURA INTERNATIONAL PLC
By: /s/ Xxxxxx Xxxxxxx-Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx-Xxxxxx
---------------------------------
Title: Head of Xxxxxx Xxxxx 0 Ventures
--------------------------------
[Amended and Restated Right of First Refusal and Co-Sale Agreement]
U.S. VENTURE PARTNERS VIII, L.P.
USVP VIII AFFILIATES FUND, L.P.
USVP ENTREPRENEUR PARTNERS VIII-A, L.P.
USVP ENTREPRENEUR PARTNERS VIII-B, L.P.
By Presidio Management Group VIII,
L.L.C.
The General Partner of Each
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney In-Fact
CMEA VENTURES LIFE SCIENCES 2000, L.P
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CMEA VENTURES LIFE SCIENCES 2000,
CIVIL LAW PARTNERSHIP
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Amended and Restated Right of First Refusal and Co-Sale Agreement]
P/S BI BIOMEDICINSK VENTURE III
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------------
Title: Managing Director
CLARIDEN BANK
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
[Amended and Restated Right of First Refusal and Co-Sale Agreement]
Exhibit A
List of Purchasers
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Hen
U.S. VENTURE PARTNERS VIII, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
USVP VIII AFFILIATES FUND, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
USVP ENTREPRENEUR PARTNERS VIII-A, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
USVP ENTREPRENEUR PARTNERS VIII-B, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
NOMURA PHASE4 VENTURES LP
c/o Nomura International plc
Xxxxxx Xxxxx
0 Xx. Xxxxxx'x-xx-Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxxx Sermon
P/S BI BIOMEDICINSK VENTURE III
Xxxxxxxxxxxxx 0
X.X. Xxx 0000
XX-0000 Xxxxxxxxxx
Xxxxxxx
Attention: Xxxx X. Kindtler
CLARIDEN BANK
Xxxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attention: Xxxx Xxxxxxxxx
CMEA VENTURES LIFE SCIENCES 2000, L.P.
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
415.352.1520 ext. 200 (voice)
000.000.0000 (fax)
Attention: Xxxxx Xxxxxxx and Xxxxx Xxxxxxxxxxxx
CMEA VENTURES LIFE SCIENCES 2000, CIVIL LAW PARTNERSHIP
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
415.352.1520 ext. 200 (voice)
000.000.0000 (fax)
Attention: Xxxxx Xxxxxxx and Xxxxx Xxxxxxxxxxxx
XXX XXXXXXXXXXXX
c/o XX Xxxxx Ventures I, L.P.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (office)
(000) 000-0000 (fax)
XXXXX X. XXXXXXX
000 Xxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000 (office)
(000) 000-0000 (fax)
XXXXXXX XXXXXXXXXXXX
0 Xxxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
(000) 000-0000 (home)
(000) 000-0000 (fax)
XXXXX XXXXXX
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
(000) 000-0000 (office)
(000) 000-0000 (fax)
SENGAL X. XXXXXXXX
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(000) 000-0000 (home)
(000) 000-0000 (fax)
(000) 000-0000 (office)
(000) 000-0000 (fax)
XXXXXXXXXXX X. XXXXX
000 Xxxx 00xx Xxxxxx, #00X
Xxx Xxxx, XX 00000
(000) 000-0000 (office)
(000) 000-0000 (fax)
NOMURA INTERNATIONAL PLC
Xxxxxx Xxxxx
0 Xx. Xxxxxx'x-xx-Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxxx Sermon
XX XXXXX VENTURES I, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
XXXX X. XXXXX
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
ML INVESTMENTS LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
CHINA DEVELOPMENT INDUSTRIAL BANK INCORPORATED
000, Xxxxxxx Xxxx Xxxx, Xxxxxxx 5
Taipei 105
Taiwan, R.O.C.
Attn: Xxxxx Xxx
PALLADIN OPPORTUNITY FUND LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
CDIB BIOTECH USA INVESTMENT, CO.
00 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn:Xxxxxxxx Xxxx
BAOTUNG VENTURE CAPITAL CORPORATION
00X, 000, Xxxx-Xxxxxx Xxxx
Xxxxxx
Xxxxxx, X.X.X.
Attn: Xxxxx Xxx, Ph. D.
WANTUNG VENTURE CAPITAL CORPORATION
00X, 000, Xxxx-Xxxxxx Xxxx
Xxxxxx
Xxxxxx, X.X.X.
Attn: Xxxxx Xxx, Ph. X.
XXXXX-SHAN VENTURE CAPITAL CORPORATION
00X, 000, Xxxx-Xxxxxx Xxxx
Xxxxxx
Xxxxxx, X.X.X.
Attn: Xxxxx Xxx, Ph. X.
XXXXX-XXXX XX VENTURE CAPITAL CORPORATION
00X, 000, Xxxx-Xxxxxx Xxxx
Xxxxxx
Xxxxxx, X.X.X.
Attn: Xxxxx Xxx, Ph. D.
Exhibit B
List of Executives and Former Employees
Executives:
-----------
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Former Employee:
----------------
Xxxxxx Xxxxxxxxx
Exhibit C
List of Other Holders
Eastcastle Limited
Xxxxx Xxxxxxxxx
ANNEX 1
ALTUS PHARMACEUTICALS INC.
INSTRUMENT OF ACCESSION
The undersigned, _______________________, as a condition precedent to
becoming an executive of Altus Pharmaceuticals Inc., a Delaware corporation (the
"Company"), hereby agrees to become an Executive party to that certain Amended
and Restated Right of First Refusal and Co-Sale Agreement dated as of May 21,
2004 by and among the Company, the Stockholders and other Executives (each as
defined therein). This Instrument of Accession shall take effect and shall
become an integral part of, and the undersigned shall become a party to and be
bound by, said Amended and Restated Right of First Refusal and Co-Sale Agreement
immediately upon execution and delivery to the Company of this Instrument of
Accession.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
---------------------------------------
(Print Name)
Address:
------------------------------
------------------------------
------------------------------
ACCEPTED:
ALTUS PHARMACEUTICALS INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
-------------------
ANNEX 2
ALTUS PHARMACEUTICALS INC.
INSTRUMENT OF ACCESSION
The undersigned, ______________________, as a condition precedent to
becoming the owner or holder of record of shares of capital stock, of Altus
Pharmaceuticals Inc., a Delaware corporation (the "Company"), hereby agrees to
become a Stockholder party to that certain Amended and Restated Right of First
Refusal and Co-Sale Agreement dated as of May 21, 2004 by and among the Company,
the other Stockholders and the Executives (each as defined therein). This
Instrument of Accession shall take effect and shall become an integral part of,
and the undersigned shall become a Stockholder party to and be bound by, said
Amended and Restated Right of First Refusal and Co-Sale Agreement immediately
upon execution and delivery to the Company of this Instrument of Accession.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
---------------------------------------
(Print Name)
Address:
------------------------------
------------------------------
------------------------------
ACCEPTED:
ALTUS PHARMACEUTICALS INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
-------------------
