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Exhibit 10.4
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
Third Amended and Restated Stockholders' Agreement, dated as of this
12th day of August, 1998 (the "Agreement"), among The Medicines Company, a
Delaware corporation (the "Company"), the individuals and entities listed on
SCHEDULE I hereto (the "Old Investors") and the individuals and entities listed
on Schedule 11 hereto (the "New Investors"). The Old Investors and the New
Investors are collectively referred to herein as the "Investors".
R E C I T A L S
WHEREAS, pursuant to the terms of a Stock Purchase Agreement, dated as
of August 12,1998, with the Company (the "Purchase Agreement"'), the New
Investors have agreed to purchase, shares of Series III Convertible Preferred
Stock, par value $1.00 par value per share, of the Company (the "Series III
Preferred Stock"); and
WHEREAS, in connection with the purchase and sale of shares of Series A
Redeemable Preferred Stock, $1.00 par value per share (the "Series A Stock"),
and shares of Common Stock, $0.001 par value per share (the "Common Stock"), of
the Company pursuant to Stock Purchase Agreements dated as of September 5, 1996,
June 4, 1997 and December 17, 1997 (the "Old Purchase Agreements"), the Company
previously entered into Second Amended and Restated Stockholders' Agreement
dated December 17, 1997 (the "Second Amended and Restated Stockholders'
Agreement") with the Old Investors; and
WHEREAS, the Company has previously exchanged the shares of Series A
Stock and Common Stock sold pursuant to the Old Purchase Agreements for shares
of Series I Convertible Preferred Stock, $1.00 par value per share (the "Series
I Preferred Stock") and Series 11 Convertible Preferred Stock, $1.00 par value
per share (the "Series 11 Preferred Stock" and, collectively with the Series I
Preferred Stock and Series III Preferred Stock, the "Preferred Stock"); and
WHEREAS, the Company and the Old Investors believe if -to be in their
mutual best interests to amend and restate the Second Amended and Restated
Stockholders' Agreement; and
WHEREAS, the Investors and the Company desire to promote their mutual
interests by agreeing to certain matters relating to the operations of the
Company and the disposition and voting of the Shares (as hereinafter defined);
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and in consideration of the foregoing and of the respective
covenants and undertakings of the Company and the Investors, the parties hereto
hereby agree to amend and restate the Second Amended and Restated Stockholders'
Agreement as follows:
1. COVENANTS OF THE PARTIES
(a) LEGENDS. The certificates evidencing the Shares acquired by the
Investors pursuant to the Old Purchase Agreements and the Purchase Agreement
will bear a legend reflecting the restrictions on the transfer of such
securities contained in this Agreement in substantially the following form:
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"The securities evidenced hereby are subject to the terms of
that certain Third Amended and Restated Stockholders'
Agreement, dated as of August - 12, 1998, by and among the
Company and certain investors identified therein, as amended
from time to time, including certain restrictions on transfer.
A copy of this Agreement has been filed with the secretary of
the Company and is available upon request."
If any Shares shall cease to be subject to the provisions of this
Agreement, the Company shall, upon the written request of the holder thereof,
issue to such holder a new certificate evidencing such Shares without the legend
required by Section 1(a) hereof endorsed thereon.
(b) ADDITIONAL INVESTORS. The parties hereto acknowledge that certain
employees of the Company may become stockholders of the Company after the date
hereof. As a condition to the issuance of shares of Common Stock to such
employees, the Company shall require such employees to execute an agreement
containing restrictions substantially similar to those set forth in Sections
3(a), (b), (c), (d) and (e) hereof.
2. BOARD OF DIRECTORS
(a) ELECTION OF DIRECTORS.
(i) As of the date hereof, the Board of Directors of the Company
(the "Board") consists of Xxxxx X. Xxxxxxxx, Xxxxx X.Xxxxxx, Xxxxxxxx X.
Xxxxxxx, T. Xxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx
and Faizl Xxxxxx. From and after the date hereof, the Investors and the Company
shall take all action within their respective power, including but not limited
to, the voting of all Shares owned by them, required to cause the Board to
consist of at least eight (8) members or such other number as the Board may from
time to time establish, and at all times throughout the term of this Agreement
to include (A) the Chief Executive Officer of the Company, (B) as long as
Warburg, Xxxxxx Ventures, L.P. ("Warburg") and its Permitted Transferees own at
least seven and one-half percent (7.5%) of the Common Stock of the Company,
calculated on an as converted basis, but less than twenty percent (20%,) of the
Common Stock of the Company, calculated on an as converted basis, one
representative designated by Warburg; as long as Warburg and its Permitted
Transferees own at least twenty percent (20'%) of the Common Stock of the
Company, calculated on an as converted basis, two representatives designated by
Warburg (each, a "Warburg Director"), (C) as long as T. Xxxxx Xxxxxxx, Xxxxxxx
Xxxxxxx, Hanseatic and MPM Medicines L.P. (collectively, the -MPM Group") and
their Permitted Transferees as a group own at least seven and one-half percent
(7.5%) of the Common Stock of the Company, calculated on an as converted basis,
one representative designated by MPM Medicines L.P. ("MPM") (an "MPM Director");
(D) as long as PharmaBio Development Inc. ("PharmaBio") and its Permitted
Transferees own at least seven and one-half percent (7.5'%) of the Common Stock
of the Company, calculated on an as converted basis, one representative
designated by PharmaBio (a "PharmaBio Director"); (E) as long as Biotech Target,
S.A. ("Biotech Target") and its Permitted Transferees own at least seven and
one-half percent (7.5%) of the Common Stock of the Company, calculated on an as
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converted basis, one representative designated by Biotech Target; as long as
Biotech Target and its Permitted Transferees own at least twenty percent (20%.)
of the Common Stock of the Company, calculated on an as converted basis, two
representatives designated by Biotech Target (each, a "Biotech Target
Director"); and (F) as long as Xxxxxx Xxxxxxx Venture Partners 111, L.P., Xxxxxx
Xxxxxxx Venture Investors III, L.P. and The Xxxxxx Xxxxxxx Venture Partners
Entrepreneur Fund, L.P. (collectively, the "MSVP Investors") and their Permitted
Transferees as a group own at least three and one-half percent (3.5%.) of the
Common Stock of the Company, calculated on an as converted basis, one
representative designated by the MSVP Investors (a "MSVP Director"). From and
after the date hereof (until the death, disability, resignation or removal of
such director in accordance with the terms hereof), Xxxxx X. Xxxxxx and Xxxxxxxx
X. Xxxxxxx shall constitute the Warburg Directors.- T. Xxxxx Xxxxxxx shall
constitute the MPM Director; Xxxxxx Xxxxxxxx shall constitute the PharmaBlo
Director; Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx shall constitute the Biotech
Target Directors; and Fazte Xxxxxx shall constitute the MSVP Director.
(ii) From the date on which the Company completes an underwritten
public offering for shares of Common Stock (the "Initial Public Offering")
pursuant to a registration under the Securities Act, and for as long as any
Investor and its Permitted Transferees own at least twenty percent (20%) of the
Common Stock of the Company, calculated on an as converted basis, other than
Biotech Target, whose rights to designate representatives to the Board shall
terminate upon the completion of an Initial Public Offering, the Company will
nominate and use its best efforts to have two individuals designated by such
Investor elected to the Board. From the date on which the Company completes its
Initial Public Offering and for as long as any Investor and its Permitted
Transferees own at -least ten percent (10%.) of the Common Stock of the Company,
calculated on an as converted basis, other than Biotech Target as provided
above, the Company will nominate and use its best efforts to have one
`individual designated by such Investor elected to the Board.
(b) REPLACEMENT DIRECTORS. In the event that any Warburg Director, MPM
Director, PharmaBlo Director, Biotech Target Director or MSVP Director (a
"Withdrawing Director") designated in the manner set forth in Section 2(a)
hereof is unable to serve, or once having commenced to serve, is removed or
withdraws from the Board, such Withdrawing Director's replacement (the
"Substitute Director") will be designated by Warburg, MPM, PharmaBio, Biotech
Target or the MSVP Investors, as the case may be. Such Investor (or group of
Investors) shall have the right at any time, by written notice to the other
Investors, to request the removal of any director designated by such Investor
and such Investor shall thereafter have the right to nominate a replacement for
such director. The Investors and the Company agree to take all action within
their respective power, including but not limited to, the voting of capital
stock of the Company owned by them or the execution of a shareholder consent to
cause the removal or election of any director designated by an Investor or group
of Investors pursuant to Section 2(a) promptly following the request for removal
or nomination, as the case may be, by such Investor or group of Investors
pursuant to this Section 2(b).
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(c) REMOVAL. Each Investor agrees that if, at any time, it is then
entitled to vote for the removal of directors of the Company, it will not vote
any of its Shares in favor of the removal of any director who shall have been
nominated pursuant to Section 2(a) or 2(b), except for bad faith or willful
misconduct, unless the Investor(s) entitled to nominate such director shall have
consented to such removal in writing.
(d) QUARTERLY MEETINGS. The Board of Directors of the Company will meet
no less frequently than quarterly.
3. TRANSFER OF STOCK
(a) RESALE OF SECURITIES. No Investor shall Transfer any Shares other
than in accordance with the provisions of this Section 3 and in compliance with
applicable federal, state and foreign securities laws. Any Transfer or purported
Transfer made in violation of this Section 3 shall be null and void and of no
effect. Notwithstanding anything herein to the contrary, the rights of the
Company and Investors under this Section 3 shall not apply to any pledge of
Shares by an Investor which creates a mere security interest, provided that the
pledgee agrees in writing to be bound by this Agreement as if it were an
Investor.
(b) AGREEMENT TO BE BOUND. No Transfer of Shares may be made to any
Permitted Transferee unless (1) the certificates representing such Shares
delivered to such Permitted Transferee shall bear the legend set forth in
Section 1, if required by such Section, and (1i) except as otherwise
specifically permitted by the provisions of this Agreement, prior to such
Transfer, such Permitted Transferee (if not already a party to this Agreement)
shall have executed and delivered to the Company an instrument in form and
substance satisfactory to the Company confirming that such transferee has agreed
to be bound as an "Investor" by the terms of this Agreement; provided that the
provisions of clause (ii) above shall not be applied to any Transfer following
the termination of this Agreement pursuant to Section 5 (notwithstanding any
survival of the provisions of Section 2(a)(ii)).
(c) THE OFFER.
(i) No Investor shall Transfer any of the Shares owned by him, her
or it to any Person (other than the Company) that is not a Permitted Transferee
of such Investor (a "Proposed Transferee") unless tile Investor desiring to make
the Transfer (hereinafter referred to as the "Transferor") shall have first
delivered a written notice (the "Offer") to the other Investors and the Company
and complied with the provisions of Sections 3(d) and (e). The Offer shall set
forth the number and class or series of Shares proposed to be Transferred to the
Proposed Transferee (the "Subject Shares"), the total number and class or series
of Shares owned by the Transferor, the terms and conditions (including price) of
the proposed sale to such Proposed Transferee, the identity of such Proposed
Transferee and any other material facts relating to the proposed sale to such
Proposed Transferee. In the case of a proposed transaction in which the
consideration consists in part or in whole of consideration other than cash, the
Transferor shall furnish such information relating to such consideration as the
Company and/or the Investors may reasonably request as being necessary for the
Company and/or the Investors to evaluate such
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non-cash consideration, it being understood that such request shall not obligate
such Transferor to deliver any in-formation to the Company and/or the Investors
not provided to such Transferor by the Proposed Transferee.
(d) RIGHT OF FIRST REFUSAL.
(i) ACCEPTANCE OF OFFER. Within twenty (20) days after the receipt
of an Offer, the Company may, at its option, elect to purchase all, but not less
than all, of the Subject Shares in accordance with the provisions of this
Agreement and for the price and upon the other terms and conditions set forth in
such Offer. The Company shall exercise such option by giving notice thereof to
the Transferor and to each Investor within such twenty (20) day period.
In the event that the Company does not exercise its option to purchase
all of the Subject Shares within such twenty (20) day period, it shall provide
notice (the "Company Non-Exercise Notice") of such determination to the
Investors and each Investor shall be entitled to purchase all, but not less than
all, of such Investor's Pro Rata Portion of the Subject Shares in accordance
with the provisions of this Agreement and for the price and upon the other terms
and conditions set forth in such Offer. The Investors may exercise such option
by giving notice thereof to the Transferor and to the Company, within twenty
(20) days after receipt of the Company Non-Exercise Notice from the Company,
setting forth the number of Subject Shares it wishes to purchase. Alternatively,
each Investor may within the same twenty (20) day period notify the Transferor
and the Company of its desire to participate in the sale of the Subject Shares
in accordance with the provisions of Section 3(e) and for the price and upon the
other terms and conditions set forth in such Offer, and the number of Subject
Shares it wishes to sell (such Investor being referred to as a "Selling
Investor").
If each Investor does not elect during such twenty (20) day period to
purchase the number of Subject Shares permitted to be purchased by such Investor
during such twenty (20) day period (and notwithstanding any election made by
such Investor pursuant to the immediately preceding paragraph to be a Selling
Investor), the Company shall, within five (5) days after the expiration of such
twenty (20) day period, provide written notice to all Investors that elected to
purchase Subject Shares during such twenty (20) day period, informing them that
they have the right to increase the number of Subject Shares that they may elect
to purchase on the same terms as the Subject Shares each such Investor has
previously elected to purchase. Each such accepting Investor will then have a
five-day period from the receipt of such notice from the Company in which to
elect to purchase the number and type of the Subject Shares that Investors have
not previously elected to purchase during the initial period, allocated among
such accepting Investors on the basis of the relative number of Shares that each
such Investor indicated that it wished to purchase during the initial period
(which number of shares shall in no event exceed such Investor's Pro Rata
Portion of the Subject Shares) by delivery of written notice of acceptance to
the Seller prior to the expiration of such five-day period.
In either event, the notice required to be given by the purchasing
party (the "Purchaser") shall specify a date for the closing of the purchase
which shall not be more than thirty (30) days
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after the date of the giving of such notice or as soon as practicable thereafter
following receipt of all required regulatory approvals.
(ii) PURCHASE PRICE. The purchase price per share for the Subject
Shares shall be the price per share offered to be paid by the Proposed
Transferee, which price shall be paid in cash or, if so provided la ` the offer
of the Proposed Transferee, cash plus deferred payments of cash in the same
proportions, and with the same terms of deferred payment as therein set forth.
(iii) CONSIDERATION OTHER THAN CASH. If the Proposed Transferee
has offered to purchase the Subject Shares for consideration other than cash or
cash plus deferred payments of cash, the Purchaser shall pay the cash equivalent
of such other consideration. If the Transferor and the Purchaser cannot agree on
the amount of such cash equivalent within ten (10) days after the beginning of
the twenty (20) day period referred to in the first sentence under Section
3(d)(1), any of such parties may, by three (3) days' written notice to the
other, initiate appraisal proceedings under Section 3(d)(iii)] for determination
of the cash equivalent. The Purchaser may give written notice to the Transferor
revoking an election to purchase the Subject Shares within ten (10) days after
determination of the appraised value, if it chooses not to purchase the Subject
Shares.
(iv) APPRAISAL PROCEDURE. If any party shall initiate an appraisal
procedure to determine the amount of the cash equivalent of any consideration
for Subject Shares under Section 3(d)(iii), then the Transferor, on the one
hand, and the Purchaser, on the other hand, shall each promptly appoint as an
appraiser an individual who shall be knowledgeable in the industry and mutually
agreeable to the parties, or failing mutual agreement, a member of a nationally
recognized investment banking firm. Each appraiser shall, within thirty (30)
days of appointment, separately investigate the value of the consideration for
the Subject Shares (without regard to the income tax consequences to the
Transferor as a result of receiving cash rather than other consideration) as of
the proposed transfer date and shall submit a notice of an appraisal of that
value to each party. If the appraised values of such consideration (the "Earlier
Appraisals") vary by less than ten percent (10%), the average of the two
appraisals on a per share basis shall be controlling as the amount of the cash
equivalent. If the appraised values vary by more than ten percent (10%), the
appraisers, within ten (10) days of the submission of the last appraisal, shall
appoint a third appraiser who shall be an individual knowledgeable in the
industry and mutually agreeable to the parties, or failing mutual agreement, a
member of a nationally recognized investment banking firm. The third appraiser
shall, within thirty (30) days of his appointment, appraise the value of the
consideration for the Subject Shares (without regard to the income tax
consequences to the Transferor as a result of receiving cash rather than other
consideration) as of the proposed transfer date and submit notice of his
appraisal to each party. The value determined by the third appraiser shall be
controlling as the amount of the cash equivalent unless the value is greater
than the two Earlier Appraisals, in which case the higher of the two Earlier
Appraisals will control, and unless that value is lower than the two Earlier
Appraisals, in which case the lower of the two Earlier Appraisals will control.
If any party falls to appoint an appraiser or if one of the two initial
appraisers fails after appointment to submit his appraisal within the
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required period, the appraisal submitted by the remaining appraiser shall be
controlling. The Transferor and the Purchaser shall each bear the cost of its
respective appointed appraiser. The cost of the third appraisal shall be shared
one-half by the Transferor and one-half by the Purchaser.
(v) CLOSING OF PURCHASE. The closing of the purchase shall take
place at the office of the Company or such other location as shall be mutually
agreeable and the purchase price, to the extent comprised of cash, shall be paid
at the closing, and cash equivalents and documents evidencing any deferred
payments of cash permitted pursuant to Section 3(d)(1i) above shall be delivered
at the closing. At the closing, the Transferor shall deliver to the Purchaser
the certificates evidencing the Subject Shares to be conveyed, free and clear of
all liens and encumbrances, duly endorsed and in negotiable form with all the
requisite documentary stamps affixed there
(e) CO-SALE RIGHT.
(f) GENERAL. In the event that the Company and the Investors do not
exercise their options to purchase all of the Subject Shares within the periods
described in Section 3(d) (the "Option Period") and the Transferor desires to
proceed with the direct or indirect sale of the Subject Shares (the "Take-Along
Shares") to a Proposed Transferee, the Selling Investors shall have the right to
sell to the Proposed Transferee, at the same price per share (calculated on an
as-converted basis) and on the same terms and conditions as are proposed to be
sold by the Transferor and set forth in the applicable Offer, up to a number of
Shares (whether or not the same class or series as the Take-Along Shares)
determined pursuant to Section 3(e)(ii). Any sale by a Selling Investor pursuant
to this Section 3(e) shall not be subject to the provisions of Sections 3(c) or
(d).
(i) AMOUNT TRANSFERRED BY SELLING INVESTOR. Each Selling Investor
shall have the right to Transfer, pursuant to the Offer, a number of shares of
Common Stock up to the product of (x) the total number of Subject Shares
(calculated on an as-converted basis) offered to be Transferred by the
Transferor or offered to be purchased by the Prospective Transferee as set forth
in the applicable Offer and (y) the Pro Rata Portion of such Investor.
(ii) AMOUNT TRANSFERRED BY TRANSFEROR. The Transferor shall use
his best efforts to interest the Proposed Transferee in purchasing, in addition
to the Take-Along Shares, the Shares the Selling Investors wish to sell. If the
Proposed Transferee does not wish to purchase all of the Shares made available
by the Transferor and the Selling Investors, then the Take-Along Shares that the
Transferor is entitled to Transfer shall be reduced by the Shares to be
transferred by the Selling Investors.
(iii) SALE OF SHARES. If the Transferor wishes to Transfer any
Shares to a Proposed Transferee at a price per Share which is less than from
that set forth in the Offer, upon terms different from those previously offered
to the Company and the Investors, or more than ninety (90) days after the
expiration of the Option Period, then, as a condition precedent to such
transaction, such Shares must first be offered to the Company and the Investors
on the same
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terms and conditions as given the Proposed Transferee, and in accordance with
the procedures and time periods set forth in Sections 3(c), (d) and (e). If
Subject Shares are transferred to any Proposed Transferee who is not a party to
this Agreement, the Subject Shares so transferred shall no longer be subject to
any of the restrictions imposed by Sections 3(c), (d) and (e)-
(g) SUBSCRIPTION RIGHT.
(i) If at any time after the date hereof, the Company proposes to
issue equity securities of any kind (the term "equity securities" shall include
for these purposes any warrants, options or other rights to acquire equity
securities and debt securities convertible into equity securities) of the
Company (other than the issuance of securities (A) upon the conversion of
outstanding shares of Preferred Stock in accordance with the charter of the
Company, (B) to the public in a firm commitment underwriting pursuant to a
registration statement filed under the Securities Act, (C) pursuant to the
acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets or other form of reorganization, (D) pursuant to
an employee stock option plan, stock bonus plan, stock purchase plan or other
management equity program approved by the Board or (E) in connection with
equipment lease transactions approved by the Board), then, as to each Investor
who then holds in excess of one percent (1%) of the then outstanding Common
Stock of the Company, calculated on an as converted basis, the Company shall:
(1) give written notice setting forth in reasonable detail
(a) the designation and all of the terms and provisions of the securities
proposed to be issued (the "Proposed Securities"), including, where applicable,
the voting powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations or restrictions thereof and
interest rate and maturity; (b) the cash price and other terms of the proposed
sale of such securities; (c) the amount of such securities proposed to be
issued; and (d) such other information as the Investors may reasonably request
in order to evaluate the proposed issuance; and
(2) offer to issue to each such Investor such Investor's
Pro Rata Portion of the Proposed Securities.
(ii) Each SUCH Investor MUST EXERCISE hereunder within ten (10)
DAYS after RECEIPT OF SUCH notice FROM THE COMPANY. If all of the proposed
securities offered to such Investor are not fully subscribed by such Investor,
the remaining Proposed Securities will be reoffered to any of the Investors
purchasing their full allotment (pro rata among them on the basis of the
relative number of Proposed Securities each such Investor has previously
indicated that it wishes to purchase) upon the terms set forth in this Section
3(f), until all such Proposed Securities are fully subscribed for or until all
such Investors have subscribed for all such Proposed Securities which they
desire to purchase, except that such Investors must exercise their purchase
rights within five (5) days after receipt of all such reoffers. To the extent
that the Company offers two or more securities in units, the Investors must
purchase such units as a whole and will not be given the opportunity to purchase
only one of the securities making up such unit.
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(iii)
(iv) Upon the expiration of the offering periods described above,
the Company will be free to sell such Proposed Securities that the Investors
have not elected to purchase during the ninety (90) days following such
expiration on terms and conditions no more favorable to the purchasers of such
Proposed Securities than those offered to such Investors. Any Proposed
Securities offered or sold by the Company after such ninety (90) day period must
be reoffered to the Investors pursuant to this Section 3(c).
(v) The closing of purchases of Proposed Securities by Investors
exercising their preemptive rights under this Section 3(0 shall take place on
the closing date of such issuance; PROVIDED that, in the event that the Holders
have exercised their preemptive rights as to all of such Proposed Securities,
the issuance of such Proposed Securities to the Investors shall be consummated
within thirty (30) days following the expiration of the last order period
described above. At such closing, the Company shall issue certificates
representing the Proposed Securities to be purchased by each Investor exercising
preemptive rights pursuant to this Section 3(f), free and clear of all liens and
registered in the name of such Investor, against payment by such Investor of the
purchase price for such Proposed Securities.
(vi) The election by an Investor not to exercise its subscription
rights under this Section 3(f) in any one instance shall not affect its right
(other than in respect of a reduction in its percentage holdings) as to any
subsequent proposed issuance,
4. NOTICE TO STOCKHOLDERS
In the event any Investors propose to take action by written consent
pursuant to Section 228 of the Delaware General Corporation Law, the Company (or
the Investor proposing the action) shall provide written notice to all Investors
of the proposed action not less than 24 hours prior to the time at which such
action is to be effective. Such written notice shall describe the material terms
and conditions of the proposed action. If any material change in the facts set
forth in such notice shall occur, the Company (or the Investor proposing the
action) shall promptly give written notice to each Investor. The execution by
any Investor of any written con-sent shall be deemed to be a waiver of the
notice and information rights provided herein with respect to the matters
covered by such written consent.
5. TERMINATION The Agreement shall terminate upon the earlier of:
(a) the closing of an Initial Public Offering, except for the
provisions of Section 2(a)(10 which shall remain in full force and effect
following the closing of the Initial Public Offering;
(b) the date on which the parties to this Agreement who hold sixty-five
percent (65%) of the shares of Common Stock, calculated on an as converted
basis, then covered by this Agreement shall have agreed in writing to terminate
this Agreement; or
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(c) ten (10) years from the date of this Agreement;
provided that no such termination shall relieve any party to this Agreement of
liability for a breach prior to termination of any of its covenants or
agreements contained in this Agreement.
6. COVENANTS
(a) FINANCIAL AND BUSINESS INFORMATION.
(i) The Company will deliver to each Investor:
(1) QUARTERLY STATEMENTS Within 45 days after the close of
each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet, statements of income, stockholders equity and cash
flows of the Company and its subsidiaries, if any, as at the close of such
quarter and covering operations for such quarter and the portion of the
Company's fiscal year ending on the last day of such quarter, all in reasonable
detail and prepared in accordance with GAAP, subject to normal year-end audit
adjustments, setting forth in each case in comparative form the figures for the
comparable period of the previous fiscal year.
(2) ANNUAL STATEMENTS as soon as practicable after the end
of each fiscal year of the Company, and in any event within ninety (90) days
thereafter, duplicate copies of :
(A) a consolidated balance sheet of the Company and its
subsidiaries, if any, at the end of such year; and
(B) consolidated statements of income, stockholders'
equity and cash flows of the Company and its subsidiaries, if any, for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and accompanied by an opinion
thereon of independent certified public accountants of recognized national
standing selected by the Company, which opinion shall state that such financial
statements fairly present the consolidated financial position of the Company and
its subsidiaries, if any, and have been prepared in accordance with GAAP (except
for changes in application In which such accountants concur) and that the
examination of such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as were considered necessary in the circumstances.
(ii) The Company will deliver to each Investor for so long as such
Investor owns at least two percent (2%) of the outstanding shares of Common
Stock, calculated on as converted basis:
(1) MONTHLY STATEMENTS - as soon as practicable, and in any
event within thirty (30) days after the close of each month of each fiscal year
of the Company,
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(A) a statement of expenses accrued for such month, compared to the budget for
such month, (B) (other than with respect to the last month in each fiscal year)
a consolidated balance sheet as at the end of such month and consolidated
statements of income for such month and (C) a narrative describing any material
events that may have occurred during such month.
(2) AUDIT REPORTS - promptly upon receipt thereof, one copy
of each other financial report, audit response letter and internal control
letter submitted to the Company by independent accountants in connection with
any annual, interim or special audit made by them of the books of the Company.
(3) OTHER REPORTS - promptly upon their becoming available,
one copy of each financial statement, report, notice or proxy statement sent by
the Company to stockholders generally, of each financial statement, report,
notice or proxy statement sent by the Company to the SEC or any successor
agency, if applicable, of each regular or periodic report and any registration
statement, prospectus or written communication (other than transmittal letters)
in respect thereof filed by the Company with, or received by such Person in
connection therewith from, any domestic or foreign securities exchange, the SEC
or any successor agency or any foreign regulatory authority performing functions
similar. to the SEC, of any press release issued by the Company, and of any
material of any nature whatsoever prepared by the SEC or any successor agency
thereto or any state blue sky or securities law commission which relates to or
affects in any way the Company.
(4) REQUESTED INFORMATION - with reasonable promptness, the
Company shall furnish to each of such Investors such other data and information
as from time to time may be reasonably requested.
(5) ANNUAL BUDGETS - prior to the start of each fiscal year,
consolidated capital and operating expense budgets, cash flow projections and
income and loss projections for the Company and its subsidiaries `in respect of
such fiscal year, all itemized in reasonable detail and prepared on a monthly
basis, and, promptly after preparation, any revisions to any of the foregoing.
(6) LITIGATION - promptly after the commencement thereof,
notice of aft actions, suits, claims, proceedings, investigations and inquiries
of the type described in Section 2.07 of the Purchase Agreement, which, if
determined adversely, could have a Material Adverse Effect (as defined in the
Purchase Agreement).
(b) INSPECTION. In addition to any rights of the Investor under
applicable law, as long as an Investor owns at least two (2%) percent of the
outstanding shares of Common Stock calculated on an as converted basis, the
Company shall permit such Investor or its nominees, assignees, and
representatives to visit and inspect any of the properties of the Company, to
examine all its books of account, records, reports and other papers not
contractually required of the Company to be confidential or secret, to make
copies and extracts therefrom , and to discuss its affairs, finances and
accounts with its officers, directors, key employees and independent public
accountants or any of them (and by this provision the Company authorizes
-11-
12
said accountants to discuss with such Investor, its nominees, assignees and
representatives the finances and affairs of the Company), all at such reasonable
times and as often as may be reasonably requested.
(c) CONFIDENTIALITY. As to the portion of the information and other
material furnished under or in connection with this Agreement (whether furnished
before, on or after the date hereof, including without limitation information
furnished pursuant to Section 6(a) and 6(b) hereof) as constitutes or contains
confidential business, financial or other information of the Company or any
subsidiary, each of the Investors covenants for itself and its directors,
officers and partners that it will use due care to prevent its officers,
directors, partners, employees, counsel, accountants and other representatives
form disclosing such information to Persons other than their respective
authorized employees, counsel, accountants, stockholders, partners, limited
partners and other authorized representatives; provided, however, that each
Investor may disclose or deliver any information or other material disclosed to
or received by it (1) should such Investor be advised by its counsel that such
disclosure or delivery is required by law, regulation or judicial or
administrative order or (ii) to any Person to whom such Investor is
contemplating a Transfer of its Shares, so long as (A) such Transfer would not
be in violation of the provisions of this Agreement, and (B) such potential
transferee is advised of the confidential nature of such information and agrees
to be bound by a confidential agreement in form and substance satisfactory to
the Company and consistent with the provisions hereof. In the event of any
termination of this Agreement, each Investor shall return to the Company all
confidential material previously furnished to such Investor or its officers,
directors, partners, employees, counsel, accountants and other representatives,
which is still held by such Investor; provided that such Investor may retain a
copy of such material for archival purposes only if such material relates to its
investment in the Company and not the business of the Company- For purposes of
this Section 6(c), "due care" means at least the same level of care that such
Investor would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination of this
Agreement.
(d) CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Company will
continue to engage in business of the same general type as now conducted by it,
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business. The Company shall
require all of its employees or consultants to enter into appropriate
confidentiality agreements to protect confidential information relating to the
Company and its business, including trade secrets.
(e) COMPLIANCE WITH LAWS. The Company will comply in all material
respects with all applicable laws, rules, regulations and orders except where
the failure to comply would not have a material adverse effect on the business,
properties, prospects, profits or condition (financial or otherwise) of the
Company.
(f) INSURANCE. The Company shall maintain with financially sound and
reputable insurance companies insurance on the business and properties of the
Company (including, without limitation, directors and officers liability
insurance and, at least from and
-12-
13
after the date of the first commercial sale of the first product by the Company,
product liability coverage), in at least such amounts and against at least such
risks as are usually insured against by companies engaged in similar businesses
and as shall be reasonably acceptable to the Investors. The Company shall be the
loss payee on all such insurance, unless otherwise determined by the Board of
Directors.
(g) KEEPING OF BOOKS. The Company will keep proper books of record and
account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Company in accordance with GAAP.
(h) LOST, ETC. CERTIFICATES EVIDENCING SHARES OF COMMON STOCK OR
PREFERRED STOCK; EXCHANGE. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any
certificate evidencing any shares of Common Stock or Preferred Stock owned by
one of the Investors, and (in the case of loss, theft or destruction) of an
unsecured indemnity satisfactory to it, and upon reimbursement to the Company of
all reasonable expenses incidental thereto, and upon surrender and cancellation
of such certificate, if mutilated, the Company will make and deliver in lieu of
such certificate a new certificate of like tenor and for the number of shares
evidenced by such certificate which remain outstanding. Such Investor's
agreement of indemnity shall constitute(~, indemnity satisfactory to the Company
for purposes of this Section 6(h). Upon surrender of any certificate
representing any shares of Common Stock or Preferred Stock for exchange at the
office of the Company, the Company at its expense will cause to be issued in
exchange therefor new certificates in such denomination or denominations as may
be requested for the same aggregate number of shares of Common Stock or
Preferred Stock, as the case may be, represented by the certificate so
surrendered and registered at such holder may request. The Company will also pay
the cost of all deliveries of certificates for such shares to the office of such
Investor (including the cost of insurance against loss or theft in an amount
satisfactory to the holders) upon any exchange provided in this Section 6(h).
(i) REPORT DIVIDENDS AND DISTRIBUTIONS. If required by the Internal
Revenue Code of 1986, as amended, the Company shall provide a copy of Internal
Revenue Service Form 1099-DIV to each of the Investors on an annual basis.
7. INTERPRETATION OF THIS AGREEMENT
(a) TERMS DEFINED. As used in this Agreement, the following terms have
the respective meaning set forth below:
AFFILIATE: any person directly or indirectly controlling, controlled by
or under common control with a specified Person.
AMENDED REGISTRATION RIGHTS AGREEMENT: the Amended and Restated
Registration Rights Agreement among the Company and certain of the Investors
dated as of the date hereof.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended.
-13-
14
GAAP: United States generally accepted accounting principles,
consistently applied.
INITIAL PUBLIC OFFERING : as defined in Section 2(a)(10 herein.
PERMITTED TRANSFEREE: with respect to any Person, means, if such person
is not an individual, any Affiliate of such Person or, in the case of any
individual, any members of such Investor's family, heirs, executors or legal
representatives or trusts for the benefit of such Investor or such Investor's
family or a partnership, corporation or limited liability company wholly owned
by such Investor;
PERSON: an individual, partnership, limited liability company,
joint-stock company, corporation, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
PRO RATA PORTION: means, with respect to any Investor at any time, (i)
the number of shares of Common Stock, calculated on an as-converted basis, that
such Investor owns at such time, divided by (ii) the number of shares of Common
Stock, calculated on an as-converted basis, owned by all Investors (other than
in the case of Section 3(d), the shares owned by the Transferor, and in the case
of Section 3(e), the Proposed Transferee (if such Proposed Transferee is an
Investor) at such time.
SECURITY, SECURITIES: as defined in Section 2(l) of the Securities Act.
SECURITIES ACT: the Securities Act of 1933, as amended.
SHARES: all shares of Common Stock, Series I Preferred Stock, Series 11
Preferred Stock and Series III Preferred Stock currently owned (either
beneficially or of record) or subsequently acquired by any of the Investors,
including any shares which an Investor does not own (either beneficially or of
record) but as to which such Investor exercises voting control, and including
without limitation, shares of Common Stock acquired upon conversion of shares of
Preferred Stock.
TRANSFER: (i) when used as a noun, any sale, assignment,, or other
disposition or encumbrance (other than as contemplated by the Pledge Agreements
between Warburg and certain of the Individual Investors, dated September 5,
1996) or any agreement to do any of the foregoing and (ii) when used as a verb,
to sell assets or otherwise dispose of or agree to do any of the foregoing.
(b) ACCOUNTING PRINCIPLES. Where the character or amount of any asset
or amount of any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation is required
to be made for the purposes of this Agreement, this shall be done in accordance
with GAAP at the time in effect, to the extent applicable.
-14-
15
(c) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(d) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within such State.
(e) SECTION HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
8. MISCELLANEOUS
(a) NOTICES.
(i) All communications under this Agreement shall be in writing
and shall be delivered by hand or mailed by overnight courier or by registered
mail or certified mail, postage prepaid:
(1) If to an Investor listed on SCHEDULE I hereto, at his,
hers or its address set forth on SCHEDULE 1, or at such other address as may
have been furnished to the Company in writing;
(2) If to an Investor listed on SCHEDULE 11 hereto, at his,
hers or its address set forth on SCHEDULE 11, or at such other address as may
have been furnished to the Company in writing; or
(3) if to the Company, at Xxx Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, marked for the attention of Xxxxx Xxxxxxxx, or
at such other address as the Company may have furnished in writing to the
Investors, with a copy (which shall not constitute notice) to Xxxx and Xxxx LLP,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, marked for the attention of Xxxxxx
X. Xxxxxx, Esq.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(b) REPRODUCTION OF DOCUMENTS. This Agreement and all documents
relating thereto, including, without limitation, (1) consents, waivers and
modifications which may hereafter be executed, (11) documents received by each
Investor pursuant hereto and (111) financial statements, certificates and other
information previously or hereafter furnished to each Investor, may be
reproduced by each Investor by a photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and each Investor may
destroy any original document so reproduced. All parties hereto agree and
stipulate that any such
-15-
16
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by each Investor in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(c) SUCCESSORS AND ASSIGNS. This Agreement shaft inure to the benefit
of and be binding upon the heirs, executors, administrators, successors and
permitted assigns of each of the parties. Notwithstanding the foregoing, neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by the Company or any Investor, except
(1) as specifically provided pursuant to the terms hereof, and (11) in
connection with a Transfer of securities of the Company pursuant to the terms
hereof, in which case any Person acquiring Shares who is required by the terms
of this Agreement to become a party hereto shall thenceforth be an "Investor".
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto, and their respective successors and
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
(d) TERMINATION OF THE SECOND AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT. Upon the effectiveness of this Agreement, the Second Amended and
Restated Stockholders' Agreement is terminated and shall be superseded by the
provisions of this Agreement.
(e) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement, the
Purchase Agreement and the Amended Registration Rights Agreement constitute the
entire understanding of the parties hereto relating to the subject matter hereof
and thereof and supersede all prior understandings among such parties. This
Agreement may be amended, and the observance of any term of this Agreement may
be waived, with (and only with) the written consent of the parties to this
Agreement who hold sixty-five percent (65%) of the shares of Common Stock,
calculated on an as converted basis, then covered by this Agreement; provided
that no amendment which would in any material respect uniquely adversely affect
any particular Investor shall become effective without the prior consent of such
Investor.
(f) RECAPITALIZATION, ETC. In the event that any capital stock or other
securities are issued in respect of, in exchange for, or in substitution of, any
Shares by reason of any reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, spit-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in capital
structure of the Company, appropriate adjustments shall be made with respect to
the relevant provisions of this Agreement so as to fairly and equitably
preserve, as far as practicable, the original rights and obligations of the
parties under this Agreement.
(g) SEVERABILITY. The invalidity or unenforceability of any provisions
of this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such Jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being Intended that all
-16-
17
rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
(h) NO INCONSISTENT AGREEMENT; CONFLICTING CHARTER OR BYLAW PROVISION. The
Issuer will not hereafter enter into any agreement which is inconsistent with or
grant rights superior to the rights granted to the Investors in this Agreement.
Each Investor shall vote its Shares or execute written consents, as the case may
be, and take all other actions necessary, to ensure that the Certificate of
Incorporation, By-laws, and other constituent documents of the Company (i)
facilitate and do not at any time conflict with any provision of this Agreement
and (ii) permit each Investor to receive the benefits to which each such
Investor is entitled under this Agreement. No Investor shall (i) enter into any
agreement or arrangement of any kind with any Person with respect to its Shares
inconsistent with the provisions of this Agreement or for the purpose or with
the effect of denying or reducing the rights of any other Investor under this
Agreement or (ii) act as a member of a group or in concert with any other Person
in connection with the Transfer or voting of its Shares in any manner which is
inconsistent with the provisions of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(j) INJUNCTIVE RELIEF. The Company and each of the Investors hereby declare
that it is impossible to measure in money the damages which xxxx accrue to the
parties hereto by reason of the failure of the Company or of any of the
Investors to perform any of its obligations set forth in this Agreement.
Therefore, the Company and the Investors shall have the right to specific
performance of such obligations, and if any party hereto shall institute any
action or proceeding to enforce the provisions hereof, each of the Company and
the Investors hereby waives the claim or defense that the party instituting such
action or proceeding has an adequate remedy at law.
-17-
18
IN WITNESS WHEREOF, the parties hereto have executed this Third Amended
and Restated Stockholders' Agreement as of the date first above written.
THE MEDICINES COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
OLD INVESTORS:
Holders of at least 75% of the
Shares held by Old Investors
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Under Power of Attorney
of Holders attached hereto
NEW INVESTORS:
Counterpart signature pages attached
hereto
-18-
19
SCHEDULE I
Warburg, Xxxxxx Ventures, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MPM Medicines L.P.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Hanseatic Americas LDC
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
PharmaBio Development Inc.
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
Biotech Target
c/o Bellevue Asset Management XX
Xxxxxxxxxxx 0 X. 0. Xxx XX-0000
Xxx, Xxxxxxxxxxx
Xxxxx X. Xxxxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxxxxxx
[The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 000000
Xxxx Xxxxxxxx
The Medicines Company Limited
000 Xxxx Xxxxx, Xx. Xxxxxxx
Xxxxxxxx, Xxx Xxxxxxx
Xxxxxx Xxxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Xxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
20
Xxxxxx Xxxxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxxx Xxxxxxxxxx
00 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
H & D Investments 97
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
21
SCHEDULE II
Name and Address of Purchaser
X. X. Xxxxxxx, Xxxxxx Ventures, L. P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Biotech Growth S.A.
Xxxxxxxxxxx 0
XX-0000
Xxx Xxxxxxxxxxx
Hanseatic Americas LDC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx
The Medicines Company
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
H&D Investments 97
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx.
Xxxxxx, XX 00000
Xxxxx Xxxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxx Revocable Trust utd
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx X
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
22
Xxxxxxx Xxxxxx and Co., Inc.
FBO: Xxxxxx X. Xxxxxxx, Xx.
XXX Xxxxxxx Xxxxxx - 0000-0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Bayview Investors, Ltd.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx Venture Partners L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Alta Partners
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Global Investments, Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Remington Investment Strategies, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Credit Suisse Asset Management
AMPE 3 Utlibergstrasse 231
Xxxxxxxx 000
Xxxxxx, XX-0000
Xxxxxxxxxxx
BancAmerica Xxxxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
23
AMENDMENT NO. 2 TO THE
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
--------------------------------------------------
This Amendment No. 2 to the Third Amended and Restated Stockholders' Agreement
dated as of this 19 day of October, 1999 (the "Agreement"), among The Medicines
Company, a Delaware corporation (the "Company"), and the Investors (as
hereinafter defined).
WHEREAS, the Company and the individuals and entities who were signatories
thereto (the "Investors") are parties to the Third Amended and Restated
Stockholders' Agreement dated as of August 12, 1998, as amended to date (the
"Third Amended and Restated Stockholders' Agreement"); and
WHEREAS, the Company and certain of the Investors have entered into a Securities
Purchase Agreement of even date herewith with respect to the sale of the Notes
and the Warrants, each as defined therein (the "Securities Purchase Agreement");
and
WHEREAS, the Company and the Investors believe it to be in their mutual best
interests to amend the Third Amended and Restated Stockholders' Agreement to
exclude the Notes and the Warrants and the shares of capital stock issuable upon
conversion or exercise thereof from the Investors' subscription rights set forth
therein;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Amendment, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 3(G). Section 3(g) of the Third Amended and Restated
Stockholders' Agreement is hereby amended by inserting immediately following
clause (E) of Section 3(g)(i) the following:
"(F) the Common Stock Purchase Warrants issuable under the
Securities Purchase Agreement dated October 19, 1999 among the
Company and the entities and individuals who are signatories
thereto (the "Purchase Agreement") and the shares of Common
Stock issuable upon exercise of such Warrants and (G) the 8%
Convertible Notes issuable under the Purchase Agreement and
the shares of capital stock issued or issuable upon the
conversion of such Notes,"
2. RATIFICATION. In all other respects, the Third Amended and Restated
Stockholders' Agreement is hereby ratified and confirmed.
3. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
4. EFFECTIVE DATE. This Amendment shall become effective upon approval by the
Company and the holders of at least 65% of the Common Stock, calculated on an as
converted basis, then covered by the Third Amended and Restated Stockholders'
Agreement.
24
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 to the
Third Amended and Restated Stockholders' Agreement as of the date first written
above.
The Medicines Company
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Holders of at least 65% of the
Common Stock, calculated on an as
converted basis, then covered by the
Third Amended and Restated
Stockholders' Agreement
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Under Power of Attorney
of Holders attached hereto
-2-
25
AMENDMENT NO. 3 TO THE
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
--------------------------------------------------
This Amendment No. 3 to the Third Amended and Restated Stockholders'
Agreement dated as of this 2nd day of March, 2000 (the "Amendment"), among The
Medicines Company, a Delaware corporation (the "Company"), and the Investors (as
hereinafter defined).
WHEREAS, the Company and the individuals and entities who were
signatories thereto (the "Investors") are parties to the Third Amended and
Restated Stockholders' Agreement dated as of August 12, 1998, as amended to date
(the "Third Amended and Restated Stockholders' Agreement"); and
WHEREAS, the Company and certain of the Investors have entered into a
Securities Purchase Agreement of even date herewith with respect to the sale of
the Notes and the Warrants, each as defined therein (the "Securities Purchase
Agreement"); and
WHEREAS, the Company and the Investors believe it to be in their mutual
best interests to amend the Third Amended and Restated Stockholders' Agreement
to exclude the Notes and the Warrants and the shares of capital stock issuable
upon conversion or exercise thereof from the Investors' subscription rights set
forth therein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 3(G). Section 3(g) of the Third Amended and
Restated Stockholders' Agreement is hereby amended by inserting immediately
following clause (F) of Section 3(g)(i) the following:
"(G) the Common Stock Purchase Warrants issuable under the
Securities Purchase Agreement dated March 2, 2000 among the
Company and the entities and individuals who are signatories
thereto (the "Purchase Agreement") and the shares of Common
Stock issuable upon exercise of such Warrants and (H) the 8%
Convertible Notes issuable under the Purchase Agreement and
the shares of capital stock issued or issuable upon the
conversion of such Notes,"
2. RATIFICATION. In all other respects, the Third Amended and Restated
Stockholders' Agreement is hereby ratified and confirmed.
3. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
26
4. EFFECTIVE DATE. This Amendment shall become effective upon approval
by the Company and the holders of at least 65% of the Common Stock, calculated
on an as converted basis, then covered by the Third Amended and Restated
Stockholders' Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
3 to the Third Amended and Restated Stockholders' Agreement as of the date first
written above.
The Medicines Company
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Holders of at least 65% of the Common
Stock, calculated on an as converted basis,
then covered by the Third Amended and
Restated Stockholders' Agreement
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Under Power of Attorney
of Holders attached hereto
-2-
27
AMENDMENT NO. 4 TO THE
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
--------------------------------------------------
This Amendment No. 4 to the Third Amended and Restated Stockholders'
Agreement dated as of this 17 day of May, 2000 (the "Amendment"), among The
Medicines Company, a Delaware corporation (the "Company"), and the Investors (as
hereinafter defined).
WHEREAS, the Company and the individuals and entities who were
signatories thereto (the "Investors") are parties to the Third Amended and
Restated Stockholders' Agreement dated as of August 12, 1998, as amended to date
(the "Third Amended and Restated Stockholders' Agreement"); and
WHEREAS, the Company and certain of the Investors have entered into a
Series IV Convertible Preferred Stock Purchase Agreement of even date herewith
with respect to the sale of the Preferred Shares, each as defined therein (the
"Purchase Agreement"); and
WHEREAS, the Company and the Investors believe it to be in their mutual
best interests to amend the Third Amended and Restated Stockholders' Agreement
to exclude the Preferred Shares and the shares of capital stock issuable upon
conversion thereof from the Investors' subscription rights set forth therein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree as follows:
1. AMENDMENT TO SECTION 3(G). Section 3(g) of the Third Amended and
Restated Stockholders' Agreement is hereby amended by inserting immediately
following clause (G) of Section 3(g)(i) the following:
"upon the conversion of outstanding shares of Series IV
Convertible Preferred Stock, $1.00 par value per share
("Series IV Preferred Stock"),"
2. AMENDMENT TO SECTION 7. Section 7 of the Third Amended and Restated
Stockholders' Agreement is hereby amended by deleting the definition of "Shares"
contained therein and inserting in lieu thereof the following:
"SHARES: all shares of Common Stock, Series I Preferred Stock,
Series II Preferred Stock, Series III Preferred Stock and
Series IV Preferred Stock currently owned (either beneficially
or of record) or subsequently acquired by any of the
Investors, including any shares which an Investor does not own
(either beneficially or of record) but as to which such
Investor exercises voting control, and including without
limitation, shares of Common Stock acquired upon conversion of
shares of Preferred Stock or Series IV Preferred Stock."
28
3. RATIFICATION. In all other respects, the Third Amended and Restated
Stockholders' Agreement is hereby ratified and confirmed.
4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
5. EFFECTIVE DATE. This Amendment shall become effective upon approval
by the Company and the holders of at least 65% of the Common Stock, calculated
on an as converted basis, then covered by the Third Amended and Restated
Stockholders' Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
4 to the Third Amended and Restated Stockholders' Agreement as of the date first
written above.
The Medicines Company
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Holders of at least 65% of the Common
Stock, calculated on an as converted basis,
then covered by the Third Amended and
Restated Stockholders' Agreement
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Under Power of Attorney
of Holders attached hereto
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