First Amendment to Amended and Restated Investor Rights Agreement
EXHIBIT 4.9
First Amendment to
Amended and Restated Investor Rights Agreement
Amended and Restated Investor Rights Agreement
This First Amendment to the Amended and Restated Investor Rights Agreement (the
“Amendment”) is made effective as of October 31, 2005, and is entered into by and among SGX
Pharmaceuticals, Inc., a Delaware corporation, previously known as Structural GenomiX, Inc.
(the “Company”), certain holders of the Company’s Series A Preferred Stock (“Series A Preferred”),
and certain holders of the Company’s Series B Preferred Stock (“Series B Preferred”) (which parties
are hereinafter collectively referred to as the “Original Parties”).
Whereas, the Original Parties have previously entered into that certain Amended and
Restated Investor Rights Agreement, dated April 21, 2005 (the “Investor Rights Agreement”);
Whereas, the Company, Silicon Valley Bank (“SVB”) and Oxford Finance Corporation
(“Oxford”) have entered into a Loan and Security Agreement dated September 16, 2005 (the “Loan
Agreement”); and
Whereas, pursuant to the Loan Agreement, the Company agreed to issue certain warrants
to SVB and Oxford and to solicit the requisite consent of the parties to the Investor Rights
Agreement to add SVB and Oxford as parties to the Investor Rights Agreement to provide such parties
with those certain incidental, or “Piggyback,” registration rights pursuant to and as set forth
therein.
Now, therefore, in consideration of the foregoing premises and the mutual covenants
and conditions herein, the parties hereto hereby agree that:
| 1. | Capitalized terms not defined herein shall have the meaning ascribed to them in the Investor Rights Agreement. | |
| 2. | SVB and Oxford shall become parties to the Investor Rights Agreement and the definition of “Holder” in Section 1 of the Investor Rights Agreement shall include SVB and Oxford; provided, however, that neither SVB nor Oxford (nor any permitted transferee or assignee of SVB or Oxford) shall be deemed a Holder for purposes of Section 2.2 or 2.4 of the Investor Rights Agreement. | |
| 3. | The definition of “Registrable Securities” in Section 1.1 of the Investor Rights Agreement shall be replaced in its entirety with the following: |
““Registrable Securities” means the (a) Common Stock of the Company issued or
issuable upon conversion of the Shares; (b) Bridge Converted Common Stock; (c) Common
Stock of the Company issued or issuable upon conversion of the Conversion Securities
(as those securities are defined in the Convertible Promissory Note issued by the
Company to mHoldings Trust (“mHoldings”) dated December 21, 2001 (the “Millennium
Note”) (or in the event the Conversion Securities (as those securities are defined in
the Millennium Note) consist of the Company’s Common Stock, the Conversion Securities
(as those securities are defined in the Millennium Note)); (d) Common Stock of the
Company issued or issuable upon conversion of the Warrant Securities (or in the event
the Warrant
1.
Securities consist of the Company’s Common Stock, the Warrant Securities),
provided, however, that any such shares of Common Stock or Warrant Securities issued
upon exercise of the Lender Warrants (or upon conversion of the Warrant Securities
issued upon exercise thereof) shall not be deemed Registrable Securities for purposes
of Section 2.2 or 2.4 hereof; and (e) Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a person
to the public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferor’s rights under Section 2 of this
Agreement are not assigned.”
| 4. | The definition of “Shares” in Section 1.1 of the Investor Rights Agreement shall be replaced in its entirety with the following: |
““Shares” shall mean (a) the Series A Stock and Series B Stock now held or
hereafter acquired by the Investors listed on Exhibit A hereto and their
permitted assigns; (b) the Pre-Series B Conversion Preferred Stock held by the
Investors listed on Exhibit A hereto and their permitted assigns; (c) the
Company securities issuable upon exercise of the Warrant and the Lenders Warrants
(the “Warrant Securities”); and (d) the Conversion Securities (as those securities
are defined in the Millennium Note) issued pursuant to the Millennium Note to
mHoldings (or its permitted assigns).”
| 5. | The following definition shall be added to Section 1.1 of the Investor Rights Agreement immediately following the definition of “Initial Offering”: |
““Lender Warrants” shall mean those certain warrants issued to Silicon Valley
Bank and Oxford Finance Corporation (or their respective permitted assigns) pursuant
to that certain Loan and Security Agreement dated as of September 16, 2005 by and
among the Company, Silicon Valley Bank and Oxford Finance Corporation.”
| 6. | By executing this Amendment, each of SVB and Oxford agree to be bound by the provisions of the Investor Rights Agreement, as amended by this Amendment (and as may be subsequently amended from time to time), including without limitation the provisions of Section 2.13 thereof. | |
| 7. | This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Except as specifically amended by this Amendment, the terms and conditions of the Investor Rights Agreement shall remain unchanged and in full force and effect. This Amendment shall be governed by and construed in accordance with the laws of the State of California as applied to contracts among California residents entered into and performed entirely within California. |
2.
In Witness Whereof, the parties hereto have executed this First Amendment
to the Amended and Restated Investor Rights Agreement effective as of the day and year
first set forth above.
Company:
| SGX Pharmaceuticals, Inc. | ||||||
| By: | /s/ Xxxxxxx Xxxx | |||||
| Name: | Xxxxxxx Xxxx | |||||
| Title: | President and Chief Executive Officer | |||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||||
| ALEXANDRIA REAL ESTATE EQUITIES, L.P., | ||||||
| a Delaware limited partnership | ||||||
| By: | ARE-QRS CORP., | |||||
| a Maryland corporation, general partner | ||||||
| By: | /s/ Xxxxxx Xxxxx
|
|||||
| Xxxxxx Xxxxx | ||||||
| Vice President, Treasurer and | ||||||
| Assistant Secretary | ||||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors /
|
Holders: | |||
Name :
|
* | |||
By:
|
/s/ Xxxxxx Xxxxxx Xxxxx | |||
Print Name:
|
Xxxxxx Xxxxxx Xxxxx | |||
Title:
|
Vice-President | |||
| ATLAS VENTURE FUND III, L.P. | ||||
| ATLAS VENTURE ENTREPRENEURS’ FUND III, L.P. | ||||
By:
|
Atlas Venture Associates III, L.P. | |||
| its general partner | ||||
By:
|
Atlas Venture Associates III, L.P. | |||
| its general partner | ||||
| ATLAS VENTURE FUND IV, L.P. | ||||
| ATLAS VENTURE PARALLEL FUND IV — A, C.V. | ||||
| ATLAS VENTURE PARALLEL FUND IV — B, C.V. | ||||
| ATLAS VENTURE ENTREPRENEURS’ FUND IV, L.P. | ||||
By:
|
Atlas Venture Associates IV, L.P. | |||
| its general partner | ||||
By:
|
Atlas Venture Associates IV, Inc. | |||
| its general partner | ||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Bavp, L.P.
|
|||
By:
|
/s/ Xxxxx X. Xxxx | |||
Print Name:
|
Xxxxx X. Xxxx | |||
Title:
|
Managing Director | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Caduceus Private Investments, LP
|
|||
By:
|
/s/ Xxxx X. Xxxxxxxxx | |||
Print Name:
|
Xxxx X. Xxxxxxxxx | |||
Title:
|
CFO, OrbiMed Capital LLC, General Partner | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
| Xxxxxxx Xxxxxxx Xxxxxxx Booth IV L.P. | ||||
By:
|
Its General Partner, | |||
| CSHB Ventures IV L.P. | ||||
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|||
Print Name:
|
Xxxxx X. Xxxxxxx | |||
Title:
|
General Partner | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxx X. Dec
|
|||
By:
|
/s/ Xxxxxx X. Dec | |||
Print Name:
|
Xxxxxx X. Dec | |||
Title:
|
Sir | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
/s/ Xxx Xxxx Xxxxxx Xxxxxxxx
|
|||
By: |
||||
Print Name:
|
Xxx Xxxx Xxxxxx Xxxxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxxxxx Xxxxx
|
|||
By:
|
/s/ Xxxxxxxxx Xxxxx | |||
Print Name:
|
Xxxxxxxxx Xxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
GC&H Investments
|
|||
By:
|
/s/ Xxxx X. Xxxxxxx | |||
Print Name:
|
Xxxx X. Xxxxxxx | |||
Title:
|
Executive Partner | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name : |
||||
By:
|
/s/ Xxxxx X. Xxxxxxxxxxx | |||
Print Name:
|
Xxxxx X. Xxxxxxxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
X. X. Xxxxxx
|
|||
By:
|
/s/ Xxxxxxxxxxx X. Xxxxxx | |||
Print Name: |
||||
Title:
|
Chairman | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxx X. Hesbough
|
|||
By:
|
/s/ Xxxxx X. Hesbough | |||
Print Name: |
||||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
/s/ Xxxxx Xxxxx
|
|||
By: |
||||
Print Name:
|
Xxxxx X. Xxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
| Index Venture Management SA | ||||
| on behalf of | ||||
| Index Employee Investment Plan | ||||
By:
|
/s/ Xxxxx Xxxxx
|
|||
Print Name:
|
Xxxxx Xxxxx | |||
Title:
|
Director | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
/s/ Xxxxxx Xxxxxxxxx
|
|||
By: |
||||
Print Name: |
||||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxxx X. Xxxxxx
|
|||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Print Name:
|
Xxxxxxx X. Xxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
X. Xxxxx XxXxxxxx
|
|||
By:
|
/s/ X. Xxxxx XxXxxxxx | |||
Print Name:
|
X. Xxxxx XxXxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
|
|||
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |||
Print Name:
|
Xxxxxxx Xxxxxxxxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Prospect Venture Partners, L.P.
|
|||
By:
|
/s/ Xxxx Xxxxxx | |||
Print Name:
|
Xxxx Xxxxxx | |||
Title:
|
Managing Member, Prospect | |||
| Management Co. LLC, general | ||||
| partner of Prospect Venture | ||||
| Partners, L.P. | ||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxx Xxxxxx
|
|||
By:
|
/s/ Xxxxx Xxxxxx | |||
Print Name:
|
Xxxxx Xxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxx X. Xxxxxxxx
|
|||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
Print Name: |
||||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxx Investments, LP
|
|||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Print Name:
|
Xxxxxxx X. Xxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Xxxxxxx X. Xxxxxx
|
|||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Print Name:
|
Xxxxxxx X. Xxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name:
|
Xxxxxxx X. Xxxxxx Revocable Trust | |||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Print Name:
|
Xxxxxxx X. Xxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
/s/ Xxxxxx Xxxx | |||
By:
|
||||
Print Name: |
||||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name : |
||||
By:
|
/s/ Xxxx X. Xxxxxxx | |||
Print Name:
|
Xxxx X. Xxxxxxx | |||
Title: |
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Scinet Development & Holdings, Inc. | |||
By:
|
/s/ Xxxx X. Xxxxxx | |||
Print Name:
|
Xxxx X. Xxxxxx | |||
Title:
|
President | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
SGC Partners I LLC | |||
By:
|
/s/ Xxxxxxxxxxx X. Xxxxx | |||
Print Name:
|
Xxxxxxxxxxx X. Xxxxx | |||
Title:
|
Director | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name :
|
Spring Creek Partners | |||
By:
|
/s/ Xxxxx X. Xxxx | |||
Print Name:
|
Xxxxx X. Xxxx | |||
Title:
|
GP | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||||
| DLJ Capital Corporation | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: | Xxxxx X. Xxxxx | |||||
| Its: | Attorney in Fact | |||||
| DLJ ESC II, L.P. | ||||||
| By: | DLJ LBO Plans Management Corporation | |||||
| Its: | General Partner | |||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: | Xxxxx X. Xxxxx | |||||
| Its: | Attorney in Fact | |||||
| Sprout Capital VIII, L.P. | ||||||
| By: | DLJ Capital Corporation | |||||
| Its: | Managing General Partner | |||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: | Xxxxx X. Xxxxx | |||||
| Its: | Attorney in Fact | |||||
| Sprout Plan Investors, L.P. | ||||||
| By: | DLJ LBO Plans Management Corporation II | |||||
| Its: | General Partner | |||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: | Xxxxx X. Xxxxx | |||||
| Its: | Attorney in Fact | |||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
| Sprout Venture Capital, L.P. | ||||||
| By: | DLJ Capital Corporation | |||||
| Its: | General Partner | |||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: | Xxxxx X. Xxxxx | |||||
| Its: | Attorney in Fact | |||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
| VECTOR LATER-STAGE EQUITY FUND II, L.P. | ||||
By:
|
VECTOR FUND MANAGEMENT II, L.L.C. | |||
Its:
|
General Partner | |||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
Its:
|
Managing Director | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
| VECTOR LATER-STAGE EQUITY FUND I, (QP), L.P. | ||||
By:
|
VECTOR FUND MANAGEMENT II, L.L.C. | |||
Its:
|
General Partner | |||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxx | ||||
Its:
|
Managing Director | |||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Name : |
Vulcan Ventures Inc. | |||
By:
|
/s/ W. Xxxxx Xxxx | |||
Print Name:
|
W. Xxxxx Xxxx |
Title:
|
EVP, Investment Management |
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment
to the Amended and Restated Investor Rights Agreement effective as of the day and year
first set forth above.
| Silicon Valley Bank | ||||
Signature:
|
/s/ Xxxxx X. Xxxxxxx | |||
Print Name:
|
Xxxxx X. Xxxxxxx |
| Title: Deal Team Leader | ||
| Oxford Finance Corporation | ||||
Signature:
|
||||
Print Name:
|
||||
Title:
|
||||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this First Amendment
to the Amended and Restated Investor Rights Agreement effective as of the day and year
first set forth above.
| Silicon Valley Bank | ||||
Signature: |
||||
Print Name:
|
||||
Title:
|
||||
| Oxford Finance Corporation | ||||
Signature:
|
/s/ X.X. Xxxxxxxxxxx | |||
| Print Name: Xxxxxxx X. Xxxxxxxxxxx | ||||
| Title: Chief Financial Officer | ||
[Signature Page to First Amendment to Amended and Restated Investor Rights Agreement]
Second Amendment to
Amended and Restated Investor Rights Agreement
Amended and Restated Investor Rights Agreement
This Second Amendment to the Amended and Restated Investor Rights Agreement
(the “Amendment”), is made effective as of March 27, 2006, and is entered into by and among SGX
Pharmaceuticals, Inc., a Delaware corporation, previously known as Structural GenomiX, Inc.
(the “Company”), certain holders of the Company’s Common Stock or warrants to purchase shares of
the Company’s Common Stock (which parties are hereinafter collectively referred to as the “Original
Parties”), and Novartis Pharma AG (“Novartis”).
Whereas, the Company and the Original Parties have previously entered into that
certain Amended and Restated Investor Rights Agreement, dated April 21, 2005, as amended (the
“Investor Rights Agreement”);
Whereas, upon the closing of the Company’s initial public offering, Sections 3 and 4
of the Investor Rights Agreement terminated and are of no further force and effect;
Whereas, the Company and Novartis have entered into a Stock Purchase Agreement of
even date herewith (the “Purchase Agreement”) and the Company and Novartis Institutes for
Biomedical Research, Inc. have entered into a License and Collaboration Agreement of even date
herewith; and
Whereas, pursuant to the Purchase Agreement, the Company has agreed to sell and issue
$5,000,000 of the Company’s Common Stock to Novartis and to add Novartis as a party to the Investor
Rights Agreement to provide Novartis certain registration rights pursuant to and as set forth
therein.
Now, therefore, in consideration of the foregoing premises and the mutual covenants
and conditions herein, the parties hereto hereby agree that:
| 1. | Capitalized terms not defined herein shall have the meaning ascribed to them in the Investor Rights Agreement. |
| 2. | The Company and the Original Parties holding the requisite 66-2/3% of the Registrable Securities hereby agree to amend the Investor Rights Agreement as set forth in this Amendment, and such Original Parties further hereby consent to and waive their rights under Section 2.12 of the Investor Rights Agreement and under any other applicable provision of the Investor Rights Agreement with respect to the registration rights granted to Novartis as set forth herein. |
| 3. | Novartis shall become a party to the Investor Rights Agreement and the definition of “Holder” in Section 1 of the Investor Rights Agreement shall include Novartis, for all purposes under the Investor Rights Agreement. |
| 4. | The definition of “Registrable Securities” in Section 1.1 of the Investor Rights Agreement shall be replaced in its entirety with the following: |
““Registrable Securities” means the (a) Common Stock of the Company issued or
issuable upon conversion of the Shares; (b) Bridge Converted Common Stock; (c) Common
Stock of the Company issued or issuable upon conversion of the
1
Conversion Securities (as those securities are defined in the Convertible
Promissory Note issued by the Company to mHoldings Trust (“mHoldings”) dated December
21, 2001 (the “Millennium Note”) (or in the event the Conversion Securities (as those
securities are defined in the Millennium Note) consist of the Company’s Common Stock,
the Conversion Securities (as those securities are defined in the Millennium Note));
(d) Common Stock of the Company issued or issuable upon conversion of the Warrant
Securities (or in the event the Warrant Securities consist of the Company’s Common
Stock, the Warrant Securities), provided, however, that any such shares of Common
Stock or Warrant Securities issued upon exercise of the Lender Warrants (or upon
conversion of the Warrant Securities issued upon exercise thereof) shall not be
deemed Registrable Securities for purposes of Section 2.2 or 2.4 hereof; (e) the
637,755 shares of Common Stock of the Company (the “Novartis Shares”) issued to
Novartis Pharma AG (“Novartis”); and (f) Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a person
to the public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferor’s rights under Section 2 of this
Agreement are not assigned.”
| 5. | The word and number “ninety (90)” set forth in Section 2.4(c) of the Investor Rights Agreement are hereby deleted in their entirety and replaced with the word and number “sixty (60)”. |
| 6. | Section 2.6(a) of the Investor Rights Agreement is hereby deleted and replaced in its entirety with the following: |
“(a) Prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration statement
to become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for up to one hundred twenty (120) days (or, in the case of a Registration
Statement on Form S-3, one hundred eighty (180) days) or, if earlier, until the
Holder or Holders have completed the distribution related thereto.”
| 7. | A new sentence is hereby added before the last sentence of Section 2.11 of the Investor Rights Agreement which reads as follows: |
“Notwithstanding the foregoing, to the extent any amendment or waiver pursuant
to this Section 2.11 would adversely affect the rights of Novartis, such amendment or
waiver shall not be effective against Novartis without the prior written consent of
Novartis; provided, however, that a waiver of any provision of Section 2.3 (Piggyback
Registrations) shall not require the prior written consent of Novartis unless such
waiver would adversely affect the rights of Novartis in a disproportionate manner
than the rights of the other Holders hereunder.”
| 8. | A new subsection 5.6(e) of the Investor Rights Agreement is hereby added which reads as follows: |
2
“(e) To the extent any amendment or waiver of this Agreement would adversely
affect the rights of Novartis, such amendment or waiver shall not be effective
against Novartis without the prior written consent of Novartis; provided, however,
that a waiver of any provision of Section 2.3 (Piggyback Registrations) shall not
require the prior written consent of Novartis unless such waiver would adversely
affect the rights of Novartis in a disproportionate manner than the rights of the
other Holders hereunder.”
| 9. | By executing this Amendment, Novartis agrees to be bound by the provisions of the Investor Rights Agreement, as amended by this Amendment (and as may be subsequently amended from time to time, subject to Section 5.6(e)), including without limitation the provisions of Section 2.13 thereof. | |
| 10. | Notwithstanding Section 2.7 of the Investor Rights Agreement, all registration rights granted to Novartis under Section 2 of the Investor Rights Agreement shall terminate and be of no further force and effect at the earlier of (a) five (5) years after the date of the Company’s Initial Offering or (b) after the Company’s Initial Offering, at such time as (i) Novartis is entitled to sell all of its shares pursuant to SEC Rule 144(k) and (ii) Novartis owns less than one percent (1%) of the Registrable Securities. |
| 11. | The Company hereby acknowledges that, as a result of the 1-for-2 reverse stock split of the Company’s Common Stock effected in January 2005, the number of shares of Registrable Securities set forth in Section 2.10 of the Investor Rights Agreement is equal to 6,322 shares of Registrable Securities as of the date hereof. |
| 12. | Notwithstanding Section 5.8 of the Investor Rights Agreement, all notices to Novartis required or permitted hereunder or under the Investor Rights Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to Novartis; (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) three (3) days after deposit with a nationally recognized overnight courier, specifying next or two-day delivery, with written verification of receipt. All communications to Novartis shall be sent to the address as set forth on the signature pages hereof or at such other address as Novartis may designate by ten (10) days advance written notice to the Company. |
| 13. | This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Except as specifically amended by this Amendment, the terms and conditions of the Investor Rights Agreement shall remain unchanged and in full force and effect. This Amendment shall be governed by and construed in accordance with the laws of the State of California as applied to contracts among California residents entered into and performed entirely within California. |
3
In Witness Whereof, the parties hereto have executed this Second Amendment
to the Amended and Restated Investor Rights Agreement effective as of the day and year
first set forth above.
| Company: | |||
| SGX Pharmaceuticals, Inc. | |||
By:
|
/s/ Xxxxxxx Xxxx | ||
Name:
|
M G Grey | ||
Title:
|
President and CEO | ||
[Signature Page
to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Novartis Pharma AG | ||
Signature:
/s/ Xxxxxx X.
Xxxxx
|
Signature: /s/ Xx. Xxxxxxxx X. Xxxxx | |
Print Name: Xxxxxx X. Xxxxx
|
Print Name: Xx. Xxxxxxxx X. Xxxxx | |
Title: Head Operational Treasury
|
Title: Head Legal Pharma Ophthalmics & | |
| Oncology Region Europe | ||
Address:
|
||||
[Signature
Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to the
Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors/Holders: |
Entity
Name: Millennium Pharmaceuticals,
Inc. |
By: /s/ Xxxx Xxxxxxxx |
Print Name: Xxxx Xxxxxxxx |
Title: Assoc. General Counsel |
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors/Holders: |
||||
| Entity Name: | ATLAS VENTURE FUND III, L.P. | |||
| ATLAS VENTURE ENTREPRENEURS’ FUND III, L.P. | ||||
| By: | Atlas Venture Associates III, L.P. | |||
| its general partner | ||||
| By: | Atlas Venture Associates III, L.P. | |||
| its general partner | ||||
By:
/s/ Xxxx
Xxxxxx |
||||
Print Name: Xxxx Xxxxxx |
||||
Title: |
||||
| ATLAS VENTURE FUND IV, L.P. | ||||
| ATLAS VENTURE PARALLEL FUND IV – A, C.V. | ||||
| ATLAS VENTURE ENTREPRENEURS’ FUND IV, L.P. | ||||
| By: | Atlas Venture Associates IV, L.P. | |||
| its general partner | ||||
| By: | Atlas Venture Associates IV, Inc. | |||
| its general partner | ||||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors/Holders: |
Entity Name: BAVP, L.P. |
By:
/s/ Xxxxx X.
Xxxx |
Print Name: Xxxxx X. Xxxx |
Title: Managing Director |
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||
| Entity Name: Sprout Capital VIII, L.P. | ||
| SPROUT CAPITAL VIII, L.P. | ||
By:
|
DLJ Capital Corporation | |
Its:
|
Managing General Partner | |
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | ||
| Attorney in Fact | ||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||
| Entity Name: Sprout Venture Capital, L.P. | ||
| SPROUT VENTURE CAPITAL, L.P. | ||
By:
|
DLJ Capital Corporation | |
Its:
|
General Partner | |
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | ||
| Attorney in Fact | ||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||
| Entity Name: Sprout Plan Investors, L.P. | ||
| SPROUT PLAN INVESTORS, L.P. | ||
By:
|
DLJ LBO Plans Management Corporation II | |
Its:
|
General Partner | |
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | ||
| Attorney in Fact | ||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||
| Entity Name : DLJ ESC II, L.P. | ||
| DLJ ESC II, L.P. | ||
By:
|
DLJ LBO Plans Management Corporation | |
Its:
|
General Partner | |
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | ||
| Attorney in Fact | ||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||
| Entity Name : DLJ Capital Corporation | ||
| DLJ CAPITAL CORPORATION | ||
By:
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | ||
| Attorney in Fact | ||
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
| Investors/Holders: | ||||
Entity Name : |
||||
By:
/s/ Xxxx
Xxxxxx
|
Print Name: Xxxx Xxxxxx |
Title: Managing Member of the General Partner of |
Prospect Venture Partners |
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors/Holders:
Entity Name : Index venture Associates I Limited As General Partner of
Index Ventures I (jersey) L.P.
Index Ventures I (Delaware) L.P.
Index Ventures I Parallel Entrepreneur Fund (Jersey) L.P.
Index Ventures I (Delaware) L.P.
Index Ventures I Parallel Entrepreneur Fund (Jersey) L.P.
Index Ventures I (SLP) Limited As General Partner of
Index Ventures I GMBH & co KG
By: /s/ Xxxx Xxxxxx
Print Name: Xxxx Xxxxxx
Title: Director
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
In Witness Whereof, the parties hereto have executed this Second Amendment to
the Amended and Restated Investor Rights Agreement effective as of the day and year first set
forth above.
Investors/Holders:
Entity Name : Index Venture Management SA
By: /s/
Xxxx Xxxxx/Xxxx
Xxxxxxx
Print Name: Xxxx Xxxxx/Xxxx Xxxxxxx
Title: Directors
[Signature Page to Second Amendment to Amended and Restated Investor Rights Agreement]
