AMENDMENT TO SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.5
AMENDMENT TO
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Pursuant to Sections 13.3 and 13.4 of the Second Amended and Restated Registration Rights
Agreement, by and among Zars Pharma, Inc., a Delaware corporation (the “Company”), and
each of the holders of the Company’s Preferred Stock set forth on Exhibit A, Exhibit B and Exhibit
C thereto (the “Preferred Investors”), dated as of August 30, 2004, as amended (the “Agreement”),
the Company, Zions First National Bank (“Zions Bank”) and each of the undersigned Preferred
Investors hereby agree, effective as of this 7th day of September, 2007, to the
amendments (the “Amendment”) set forth below. Capitalized terms used but not defined herein have
the meanings given them in the Agreement.
Recitals
Whereas, the Company and the undersigned Preferred Investors wish to amend
certain terms of the Agreement as described below;
Whereas, pursuant to the terms of the Agreement, the Agreement may be amended by the
Company and the holders of a majority of the Registrable Securities (as defined in the Agreement)
(the “Required Holders”); and
Whereas, the undersigned Preferred Investors constitute the Required Holders.
Now, Therefore, the parties hereto agree as follows:
Agreement
1. The definition of “Holder” set forth in Section 1 of the Agreement is hereby amended and
restated to read in its entirety as set forth below:
“’Holder’ shall mean (i) Zions First National Bank, (ii) a Preferred Investor and
(iii) any holder of Registrable Securities to whom the registration rights granted
by this Agreement have been transferred by a Holder in compliance with Section 10 of
this Agreement, in each case at any time during which such Holder holds Registrable
Securities.”
2. The definition of “Qualified IPO” set forth in Section 1 of the Agreement is hereby amended
and restated to read in its entirety as set forth below:
“’Qualified IPO’ means the closing of a firm underwritten public offering of shares
of the Common Stock of the Company.”
3. The definition of “Registrable Securities” set forth in Section 1 of the Agreement is
hereby amended and restated to read in its entirety as set forth below:
“’Registrable Securities’ shall mean (i) Shares issued or issuable pursuant to the
conversion of Series Preferred or upon the exercise and conversion of any
warrants or options to purchase Series Preferred, (ii) Shares issued or issuable
pursuant to that certain warrant to purchase 11,700 Shares issued to Zions First
National Bank on June 28, 2007 and (iii) any Shares issued as a dividend, stock
split or other distribution with respect to or in exchange for or in replacement of
such Shares referenced in clause (i) or (ii) above; provided, however, that
Registrable Securities shall not include any Shares which have previously been
registered or which have been sold to the public either pursuant to a registration
statement or are eligible for sale under and have been sold pursuant to Rule 144, or
which have been sold in a private transaction in which the transferor’s rights under
this Agreement are not assigned or are not assignable.”
4. This Amendment may be executed in any number of counterparts, each of which may be executed
by less than all of the parties hereto and each of which shall constitute one and the same
instrument.
5. The Company and the undersigned Preferred Investors consent to a restatement of the
Agreement to incorporate this Amendment.
6. This Amendment shall be effective upon its execution by the Company, Zions Bank and the
Required Holders.
7. Upon execution of this Amendment by the Company, Zions Bank and the Required Holders, Zions
Bank shall become a party to the Agreement and shall be (i) included within the term “Holder” for
all purposes thereof and (ii) treated as a Preferred Holder for purposes of Section 13.4 and 13.5
thereof.
8. This Amendment shall be construed in accordance with and governed by the laws of the State
of Utah, without regard to principles of conflicts of laws thereof.
[Signatures follow]
In Witness Whereof, the parties hereto have executed this Amendment to
Second Amended and Restated Registration Rights Agreement as of the date set forth in
the first paragraph hereof.
| Zions First National Bank | ||
By: /s/ Xxxxxx Xxxxxxx
|
By: /s/ Xxxxxx X. Xxxxx | |
Name: Xxxxxx Xxxxxxx
|
Name: Xxxxxx X. Xxxxx | |
Title: President and Chief
Executive Officer
|
Title: Senior Vice President |
| Shares Held: | Stockholder: | |
Common Stock: -0-
|
Xxxxxx Associates, L.P | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 33,507
|
By: /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | ||
| Title General Partner | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
Xxxxxx Xxxxxx Jurvetson Eplanet Partners Fund, LLC | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 16,313 |
||
| By: /s/ Xxxx Xxxxxx | ||
| Name: Xxxx Xxxxxx | ||
| Title Managing Member | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
Xxxxxx Xxxxxx Jurvetson Eplanet Ventures GMBH & Co. KG | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 13,866
|
By: /s/ Xxxx Xxxxxx | |
| Name Xxxx Xxxxxx | ||
| Title Managing Director | ||
| Date: August 31, 2007 |
| Shares Held: | Stockholder: | |
Common Stock: -0-
|
Xxxxxx Xxxxxx Jurvetson Eplanet Ventures L.P. | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 785,482 |
||
| By: /s/ Xxxx Xxxxxx | ||
| Name Xxxx Xxxxxx | ||
| Title Managing Director | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
Xxxxxx Xxxxxx Jurvetson Fund VII, L.P. | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 1,237,195
|
By: /s/ Xxxx Xxxxxx | |
| Name Xxxx Xxxxxx | ||
| Title Managing Director | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
Xxxxxx Xxxxxx Jurvetson Partners VII, LLC | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 18,042 |
||
| By: /s/ Xxxx Xxxxxx | ||
| Name Xxxx Xxxxxx | ||
| Title Managing Member | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
vSpring II, LP | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 481,860 |
||
| By: /s/ Xxxxxx Xxxxx | ||
| Name Xxxxxx Xxxxx | ||
| Title Managing Director | ||
| Date: August 31, 2007 | ||
Common Stock: -0-
|
vSpring Partners II, LP | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 7,537
|
By: /s/ Xxxxxx Xxxxx | |
| Name Xxxxxx Xxxxx | ||
| Title Managing Director | ||
| Date: August 31, 2007 |
| Shares Held: | Stockholder: | |
Common Stock: 1,293
|
Wasatch Partners II, LLC | |
Series A Preferred: -0- |
||
Series B Preferred: 1,710 |
||
Series C Preferred: 3,262
|
By: /s/ Xxxx X. Xxxxxxx | |
| Name Xxxx X. Xxxxxxx | ||
| Title Managing Director | ||
| Date: August 30, 2007 | ||
Common Stock: 141,152
|
Wasatch Venture Fund II, LLC | |
Series A Preferred: 102,881 |
||
Series B Preferred: -0- |
||
Series C Preferred: -0-
|
By: /s/ Xxxx X. Xxxxxxx | |
| Name Xxxx X. Xxxxxxx | ||
| Title Managing Director | ||
| Date: August 30, 2007 | ||
Common Stock: -0-
|
Zions SBIC, LLC | |
Series A Preferred: -0- |
||
Series B Preferred: 341,880 |
||
Series C Preferred: -0-
|
By: /s/ Xxxx X. Xxxxxxx | |
| Name Xxxx X. Xxxxxxx | ||
| Title Managing Director | ||
| Date: August 30, 2007 |
| Shares Held: | Stockholder: | |
Common Stock: 245,773
|
Xxx Xxxxxxx Family Limited Partnership | |
Series A Preferred: 102,880 |
||
Series B Preferred: -0- |
||
Series C Preferred: -0-
|
By: /s/ Xxx Xxxxxxx | |
| Name Xxxxxxxx X. Xxxxxxx | ||
| Title General Partner | ||
| Date: August 29, 2007 | ||
Common Stock: 40,251
|
Xxxxx and Xxxxxxxx X. Xxxxxxx | |
Series A Preferred: -0- |
||
Series B Preferred: -0- |
||
Series C Preferred: 163,132
|
/s/ Xxx Xxxxxxx | |
| Xxxxxxxx X. Xxxxxxx | ||
| Date: August 29, 2007 | ||
Common Stock: -0-
|
Xxxxx and Xxxxxxxx X. Xxxxxxx, JTWROS | |
Series A Preferred: 102,880 |
||
Series B Preferred: -0- |
||
Series C Preferred: -0-
|
/s/ Xxx Xxxxxxx | |
| Xxxxxxxx X. Xxxxxxx | ||
| Date: August 29, 2007 | ||
Common Stock: 166,821
|
Xxxxxxx Research Foundation | |
Series A Preferred: 51,440 |
||
Series B Preferred: -0- |
||
Series C Preferred: 40,783
|
By: /s/ Xxx Xxxxxxx | |
| Name Xxxxxxxx X. Xxxxxxx | ||
| Title President | ||
| Date: August 29, 2007 | ||
Common Stock: 363,000
|
Xxxxx Investments LLC | |
Series A Preferred: 41,152 |
||
Series B Preferred: -0- |
||
Series C Preferred: -0-
|
By: /s/ Xxxxx Xxxxx | |
| Name Xxxxx Xxxxx | ||
| Title Manager | ||
| Date: August 27, 2007 |
| Shares Held: | Stockholder: | |
Common Stock: -0-
|
Xxxxx X. Xxxxx Family Living Trust | |
Series A Preferred: 20,576 |
||
Series B Preferred: -0- |
||
Series C Preferred: -0-
|
By: Xxxxx X. Xxxxx | |
| Name Xxxxx X. Xxxxx | ||
| Title | ||
| Date: August 27, 2007 | ||
Common Stock: 202,904 |
||
Series A Preferred: 12,346
|
/s/ Xxxxxxx Xxxxxxx | |
Series B Preferred: -0-
|
Xxxxxxx Xxxxxxx | |
Series C Preferred: -0-
|
Date: August 28, 2007 |
