EXHIBIT 10.16
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated this 22nd
day of May 2001, is entered into by and among NITROMED, INC., a Delaware
corporation (the "Corporation"), those Stockholders of the Corporation listed on
SCHEDULE 1 hereto (hereinafter referred to collectively as the "Investors"),
those individuals listed on SCHEDULE 2 hereto (the "Management Holders"), and
The Xxxxxxx and Women's Hospital, Inc. ("BWH"). It is expressly agreed among the
parties that (i) BWH shall have no rights, liabilities or responsibilities
whatsoever under Sections 2.2, 2.4 through 2.14, 3.1 through 3.4, 3.6 and 5.1
through 5.5 hereof and (ii) the Management Holders shall have no rights,
liabilities or responsibilities whatsoever under Sections 2, 3.1 through 3.4,
3.6 and 5 hereof.
W I T N E S S E T H:
WHEREAS, The Corporation has previously entered into a Third Amended and
Restated Stockholders' Agreement dated as of May 17, 1999, as amended from time
to time, (the "Old Stockholders' Agreement") with holders of the Corporation's
Series A Convertible Preferred Stock (the "Series A Investors"), holders of the
Corporation's Series B Convertible Preferred Stock (the "Series B Investors"),
holders of the Corporation's Series C Convertible Preferred Stock (the "Series C
Investors"), holders of the Corporation's Series D Convertible Preferred Stock
(the "Series D Investors"), the individuals listed on Schedule 2 thereto and,
with respect to certain provisions, BWH; and
WHEREAS, the Corporation has authorized a new series of Preferred Stock to
be designated "Series E Convertible Preferred Stock," par value $.01 per share
("Series E Preferred Stock"); and
WHEREAS, the Corporation is entering into a Series E Convertible Preferred
Stock Purchase Agreement dated the date hereof in connection with which the
Corporation has agreed to sell shares of its Series E Preferred Stock to certain
investors (the "Series E Investors"), and the Corporation desires to grant to
the Series E Investors certain registration, preemptive and other rights with
respect to such Series E Preferred Stock; and
WHEREAS, the Corporation, the Series A Investors, the Series B Investors,
the Series C Investors, the Series D Investors, the Management Holders and BWH
believe it to be in their mutual best interests that the Old Stockholders'
Agreement be amended and restated in its entirety in order to accommodate the
creation of the Series E Preferred Stock and the rights to be granted to the
Series E Investors.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and undertakings of the Corporation and the Investors hereunder, the
parties hereto do hereby agree as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
BOARD shall mean the Board of Directors of the Corporation.
BUDGET shall have the meaning set forth in Section 2.8 hereof.
BU WARRANT shall mean collectively (i) the Series B Preferred Stock
Purchase Warrant, to purchase 412,500 Series B Preferred Shares, issued on April
11, 1996 by the Corporation to Trustees of Boston University; (ii) the Series B
Preferred Stock Purchase Warrant, to purchase 41,250 Series B Preferred Shares,
issued on September 30, 1996 by the Corporation to Trustees of Boston
University; and (iii) the Series B Preferred Stock Purchase Warrant, to purchase
41,250 Series B Preferred Shares, issued on April 7, 1997 by the Corporation to
Trustees of Boston University.
BWH shall mean The Xxxxxxx and Women's Hospital, Inc.
BWH SECURITIES shall have the meaning set forth in Section 2.3(a) hereof.
CERTIFICATE shall mean the Fifth Restated Certificate of Incorporation of
the Corporation.
COMMISSION shall mean the U.S. Securities and Exchange Commission.
COMMON STOCK shall mean the Common Stock, par value $.01 per share, of the
Corporation.
ENVIRONMENTAL LAWS shall mean all applicable federal, state, foreign and
local laws, ordinances, rules and regulations that regulate, fix liability for,
or otherwise relate to, the handling, use (including use in industrial
processes, in construction, as building materials, or otherwise), storage and
disposal of hazardous and toxic wastes and substances, and to the discharge,
leakage, presence, migration, threatened release or release (whether by
disposal, a discharge into any water source or system or into the air, or
otherwise) of any pollutant or effluent or otherwise related to pollution or the
protection of human health, the environment or wildlife. Without limiting the
preceding sentence, the term "Environmental Laws" shall specifically include the
following federal and state laws, as amended:
FEDERAL
Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C.
9601 ET SEQ.;
Resource Conservation and Recovery Act of 1976,
42 U.S.C. 6901 ET SEQ.;
Federal Water Pollution Control Act, 33 U.S.C.
1251 ET SEQ.; and
- 2 -
Clean Air Act, 42 U.S.C. 7401 ET SEQ.
STATE
MASSACHUSETTS ENVIRONMENTAL STATUTES
Massachusetts Clean Waters Act, Mass. Gen. L.
Ch. 21, Section 26, ET SEQ., and regulations
thereto;
Massachusetts Solid Waste Disposal Laws, Mass.
Gen. L. Ch. 16, Section 18, ET SEQ., and Ch. 111,
Section 105A, and regulations thereto;
Massachusetts Oil and Hazardous Materials Release
Prevention and Response Act, Mass. Gen. L., Ch.
21E, Section 1, ET SEQ., and regulations thereto;
Massachusetts Solid Waste Facilities Law, Mass.
Gen. L., Ch. 21H, Section 1, ET SEQ., and
regulations thereto;
Massachusetts Toxic Use Reduction Act, Mass.
Gen. L., Ch. 211, Section 1, ET SEQ., and
regulations thereto;
Massachusetts Litter Control Laws, Mass. Gen. L.
Ch. 111, Section 150A, ET SEQ., and regulations
thereto;
Massachusetts Wetlands Protection Laws, Mass.
Gen. L., Ch. 130, Section 105, ET SEQ., and
regulations thereto;
Massachusetts Environmental Air Pollution Control
Law, Mass. Gen. L., Ch. 101, Section 2B, ET SEQ.,
and regulations thereto;
Massachusetts Environmental Policy Act, Mass.
Gen. L. 30, Section 61, ET SEQ., and regulations
thereto; and
Massachusetts Hazardous Waste Laws, Mass. Gen. L.
Ch. 21C, Section 1, ET SEQ., and regulations
thereto.
EQUITY PERCENTAGE shall mean, as to any Investor, that percentage figure
which expresses the ratio that (a) the number of shares of issued and
outstanding Common Stock then owned by such Investor bears to (b) the aggregate
number of shares of issued and outstanding Common
- 3 -
Stock then owned by all Investors. For purposes solely of the computation set
forth in clauses (a) and (b) above, all issued and outstanding securities held
by the Investors that are convertible into or exercisable or exchangeable for
shares of Common Stock (including any issued and issuable shares of Preferred
Stock) or for any such convertible, exercisable or exchangeable securities,
shall be treated as having been so converted, exercised or exchanged at the rate
or price at which such securities are convertible, exercisable or exchangeable
for shares of Common Stock in effect at the time in question (which, for
purposes of Section 2.3 of this Agreement, shall be at the time of delivery by
the Corporation of the notice of the Offer contemplated by Section 2.3(b)),
whether or not such securities are at such time immediately convertible,
exercisable or exchangeable.
EQUITY PERCENTAGE SECURITIES shall have the meaning set forth in Section
2.3(a) hereof.
EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as amended.
EXCHANGE ACT REGISTRATION STATEMENT shall have the meaning set forth in
Section 2.5 hereof.
EXCESS SECURITIES shall have the meaning set forth in Section 2.3(d)
hereof.
EXCESS SECURITIES NOTICE shall have the meaning set forth in Section 2.3(d)
hereof.
EXCESS SECURITIES PERIOD shall have the meaning set forth in Section 2.3(d)
hereof.
EXCLUDED FORMS shall have the meaning given such term in Section 3.5
hereof.
EXCLUDED SECURITIES shall mean, collectively:
(i) the Reserved Shares;
(ii) Common Stock issued or issuable to officers, directors or
employees of or consultants or independent contractors to the Corporation,
pursuant to any written agreement, plan or arrangement, including pursuant to
any options granted under the 1993 Equity Incentive Plan of the Corporation (the
"1993 Equity Incentive Plan"), to purchase, or rights to subscribe for, such
Common Stock, that is set forth on Schedule 5.2 of the Series E Stock Purchase
Agreement or that has been approved in form and in substance by the holders of a
majority of the combined voting power of the Series Preferred Shares then
outstanding, calculated in accordance with Section A.6(a) of Article III of the
Certificate (including, in such calculation, any outstanding Restricted Shares
held by such holders), and which, as a condition precedent to the issuance of
such shares, provides for the vesting of such shares and subjects such shares to
restrictions on transfers and rights of first offer in favor of the Corporation
that have been approved by the holders of a majority of the combined voting
power of the Series Preferred Shares then outstanding, calculated in accordance
with Section A.6(a) of Article III of the Certificate (including, in such
calculation, any outstanding Restricted Shares held by such holders),
(collectively, the "Required Terms"), unless any of such Required Terms are
waived by holders at least a majority of the voting power of the Series
Preferred Shares then outstanding (determined as set forth in Section A.6(a) of
the Certificate); PROVIDED, HOWEVER, that the
- 4 -
maximum number of shares of Common Stock hereafter issuable pursuant to the 1993
Equity Incentive Plan and all such agreements, plans and arrangements shall not
exceed 2,288,200 shares (subject to adjustment as required to comply with any
anti-dilution rights set forth in any such agreement, plan or arrangement);
(iii) Common Stock issued as a stock dividend payable in shares of
Common Stock, or capital stock of any class issuable upon any subdivision,
recombination, split-up or reverse stock split of all the outstanding shares of
such class of capital stock of the Corporation;
(iv) any securities issued pursuant to the acquisition by the
Corporation of any other corporation, partnership, joint venture, trust or other
entity by any merger, stock acquisition, reorganization, purchase of
substantially all assets or otherwise in which the Corporation, or its
stockholders of record immediately prior to the effective date of such
transaction, directly or indirectly, own at least a majority of the voting power
of the acquired entity or the resulting entity after such transaction; and
(v) any shares of Common Stock, Preferred Stock or any other
security convertible into or exercisable or exchangeable for Common Stock or
Preferred Stock issued to banks or leasing companies in order to obtain
financing or to secure leases of equipment; and
(vi) a maximum of 516,364 shares of Common Stock (subject to
adjustment) issued or issuable upon the exercise of the 1994 Bridge Warrants,
1995 Bridge Warrants, 1996 Bridge Warrants and the 1994 Capital Support
Warrants;
GROUP shall mean: (i) as to an Investor that is a limited partnership: (A)
any and all of the venture capital limited partnerships now existing or
hereafter formed that are affiliated with or under common control with one or
more of the general partners or one or more general partners of the general
partner of such Investor and any predecessor or successor thereto, (B) any
limited partner of such Investor, and (C) in the case of an HCV Fund, the HCV
Group; (ii) as to any Investor that is a trust, any grantor or beneficiary
thereof, or any other trust, corporate entity or partnership under common
control with such trust; and (iii) as to any Investor, any other Investor.
HAZARDOUS MATERIALS shall include without limitation, any flammable
explosives, petroleum products, petroleum byproducts, radioactive materials,
hazardous wastes, hazardous substances, toxic substances or other similar
materials regulated by Environmental Laws.
HCV FUND shall mean any of HCV I, HCV II, HCV III, HCV IV, HCV V or HCV VI.
HCV GROUP shall mean, collectively, (i) any HCV Fund, (ii) any venture
capital limited partnership now existing or hereafter formed which is affiliated
with or under common control with one or more general partners of any general
partner of an HCV Fund; (iii) any limited partners or affiliates of an HCV Fund;
and (iv) any successors or assigns of any of the foregoing persons.
- 5 -
HCV I shall mean HealthCare Ventures I, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV I under this Agreement.
HCV II shall mean HealthCare Ventures II, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV II under this Agreement.
HCV III shall mean HealthCare Ventures III, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV III under this Agreement.
HCV IV shall mean HealthCare Ventures IV, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV IV under this Agreement.
HCV V shall mean HealthCare Ventures V, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV V under this Agreement.
HCV VI shall mean HealthCare Ventures VI, L.P., a Delaware limited
partnership, including any successor thereto or any assignee of the interest, in
whole or in part, of HCV VI under this Agreement.
INCENTIVE SHARES shall mean a maximum of 2,288,200 shares of Common Stock
duly reserved for issuance in connection with options available under the 1993
Equity Incentive Plan.
INITIAL PUBLIC OFFERING shall mean a firm commitment underwritten public
offering of Common Stock of the Corporation registered under the Securities Act,
pursuant to which (a) Common Stock is offered to the public at a price of at
least $14.4074 per share (subject to adjustment to reflect stock splits, stock
dividends, stock combinations and like occurrences), and (b) the net proceeds to
the Corporation are at least $15,000,000.
INVESTORS shall mean severally, but not jointly and severally (i) each of
the persons listed on Schedule 1 hereto and (ii) Trustees of Boston University
at such time as Trustees of Boston University shall have exercised the BU
Warrants and received shares of the Corporation's Series B Preferred Stock.
MAJOR INVESTOR shall mean each Investor that holds at least 100,000 Series
Preferred Shares.
MANAGEMENT HOLDERS shall mean the individuals listed on Schedule 2 hereto.
NOTICE OF ACCEPTANCE shall have the meaning set forth in Section 2.3(c)
hereof.
OFFER shall have the meaning set forth in Section 2.3(b) hereof.
- 6 -
OFFERED SECURITIES shall mean, except for Excluded Securities, (i) any
shares of Common Stock, Preferred Stock or any other equity security of the
Corporation, (ii) any debt security or capitalized lease with any equity feature
with respect to the Corporation, or (iii) any option, warrant or other right to
subscribe for, purchase or otherwise acquire any such equity security, debt
security or capitalized lease.
OTHER SHARES shall have the meaning set forth in Section 3.5(e) hereof.
PREFERRED STOCK shall mean the Preferred Stock, par value $.01 per share,
of the Corporation.
PREFERRED STOCKHOLDERS shall mean, collectively, all holders of shares of
Preferred Stock of the Corporation.
PROPERTY shall include, without limitation, land, buildings and laboratory
facilities owned or leased by the Corporation or as to which the Corporation now
has any duties, responsibilities (for clean-up, remedy or otherwise) or
liabilities under any Environmental Laws, or as to which the Corporation or any
subsidiary of the Corporation may have such duties, responsibilities or
liabilities because of past acts or omissions of the Corporation or any such
subsidiary or their predecessors, or because the Corporation or any such
subsidiary or their predecessors in the past was such an owner or operator of,
or bore some other relationship with, such land, buildings and/or laboratory
facilities.
REFUSED SECURITIES shall have the meaning set forth in Section 2.3(f)
hereof.
RESERVED SHARES shall collectively mean the shares of Common Stock reserved
by the Corporation for issuance upon the conversion of the Series Preferred
Shares or upon exercise of the Incentive Shares.
RESTRICTED SECURITIES shall mean: (i) any of the Series Preferred Shares
and the Common Stock issued or issuable upon the conversion of the Series
Preferred Shares, all shares of Common Stock issued or issuable in respect
thereof by way of stock splits, stock dividends, stock combinations,
recapitalizations or like occurrences, and any other shares of Common Stock or
other securities of the Corporation which may be issued hereafter to any of the
Investors or any member of their Group which are convertible into or exercisable
or exchangeable for shares of Common Stock (including, without limitation, other
classes or series of Convertible Preferred Stock, warrants, options or other
rights to purchase Common Stock or convertible debentures or other convertible
debt Securities) and the Common Stock issued or issuable upon such conversion or
exercise of such other securities, which have not been sold (a) in connection
with an effective registration statement filed pursuant to the Securities Act,
or (b) pursuant to Rule 144 or Rule 144A promulgated by the Commission under the
Securities Act; and (ii) solely for the purpose of Sections 3.5, 3.7, 3.8, 3.9,
3.10 and 4 hereof, any shares of Common Stock issued to BWH or to the Management
Holders, and all shares of Common Stock issued or issuable in respect thereof by
way of stock splits, stock dividends, stock combinations, recapitalizations or
like occurrences, which have not been sold (a) in connection with an effective
registration
- 7 -
statement filed pursuant to the Securities Act, or (b) pursuant to Rule 144 or
Rule 144A promulgated by the Commission under the Securities Act.
RESTRICTED SHARES shall mean the shares of Common Stock issued or issuable
upon the conversion or exchange of the Restricted Securities or otherwise
constituting a portion of the Restricted Securities.
SECURITIES ACT shall mean the Securities Act of 1933, as amended.
SERIES A PREFERRED SHARES shall mean shares of Series A Preferred Stock
issued or issuable pursuant to the Series A Stock Purchase Agreement.
SERIES A PREFERRED STOCK shall mean Series A Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
SERIES A STOCK PURCHASE AGREEMENT shall mean the Convertible Preferred
Stock Purchase Agreement, dated December 3, 1993, among the Corporation and the
Series A Investors listed on Schedule 1 thereto.
SERIES B PREFERRED SHARES shall mean shares of Series B Preferred Stock
issued or issuable pursuant to (i) the Series B Stock Purchase Agreements and
(ii) the BU Warrant.
SERIES B PREFERRED STOCK shall mean Series B Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
SERIES B STOCK PURCHASE AGREEMENTS shall mean (i) the Series B Convertible
Preferred Stock Purchase Agreement dated June 20, 1995 among the Corporation and
the Series B Investors listed on Schedule 1 thereto and (ii) the Series B
Convertible Preferred Stock Purchase Agreement dated April 4, 1997 between the
Corporation and the Series B Investors listed on Schedule 1 thereto.
SERIES C PREFERRED SHARES shall mean shares of Series C Preferred Stock
issued or issuable pursuant to the Series C Stock Purchase Agreement.
SERIES C PREFERRED STOCK shall mean Series C Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
SERIES C STOCK PURCHASE AGREEMENT shall mean the Series C Convertible
Preferred Stock Purchase Agreement, dated December 31, 1997, among the
Corporation and the Series C Investors listed on Schedule I thereto.
SERIES D PREFERRED SHARES shall mean shares of Series D Preferred Stock
issued or issuable pursuant to the Series D Stock Purchase Agreement.
SERIES D PREFERRED STOCK shall mean Series D Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
- 8 -
SERIES D STOCK PURCHASE AGREEMENT shall mean the Series D Convertible
Preferred Stock Purchase Agreement, dated May 17, 1999, among the Corporation
and the Series D Investors listed on Schedule I thereto.
SERIES E PREFERRED SHARES shall mean shares of Series E Preferred Stock
issued or issuable pursuant to the Series E Stock Purchase Agreement.
SERIES E PREFERRED STOCK shall mean Series E Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
SERIES E STOCK PURCHASE AGREEMENT shall mean the Series E Convertible
Preferred Stock Purchase Agreement, dated May 22, 2001, as it may be amended
from time to time, among the Corporation and the Series E Investors listed on
Schedule 1 thereto.
SERIES PREFERRED SHARES shall mean collectively the Series A Preferred
Shares, Series B Preferred Shares, Series C Preferred Shares, Series D Preferred
Shares and Series E Preferred Shares.
STOCKHOLDERS shall mean all holders of capital stock of the Corporation.
TARGET MONTH shall have the meaning set forth in Section 2.7(a) hereof.
30-DAY PERIOD shall have the meaning set forth in Section 2.3(b) hereof.
TRANSFER shall include any disposition of any Restricted Securities or of
any interest therein which would constitute a sale thereof within the meaning of
the Securities Act.
1994 BRIDGE WARRANTS shall mean (i) the Common Stock Purchase Warrants
issued on or after July 27, 1994, to the persons or entities listed on the
signature page to the Credit Agreement (the "July Lenders"), in connection with
the execution and delivery of the Credit Agreement, dated July 27, 1994, among
the Corporation and the July Lenders and (ii) the Common Stock Purchase Warrants
issued on or after December 20, 1994, to the persons or entities listed on the
signature page to the Credit Agreement (the "December Lenders"), in connection
with the execution and delivery of the Credit Agreement dated December 20, 1994,
among the Corporation and the December Lenders.
1995 BRIDGE WARRANTS shall mean the Common Stock Purchase Warrants to be
issued on or after June 20, 1995, to the persons or entities listed on the
signature page to the Credit Agreement (the "June 1995 Lenders"), in connection
with the execution and delivery of the Credit Agreement, dated June 20, 1995,
among the Corporation and the June 1995 Lenders.
1996 BRIDGE WARRANTS shall mean (i) the Common Stock Purchase Warrants to
be issued on or after January 10, 1996, and on or before June 30, 1996, in
connection with the execution and delivery of one or more Credit Agreements,
dated on or after January 10, 1996, but on or before June 30, 1996, among the
Corporation and the parties signatory thereto and (ii) the Common Stock Purchase
Warrants to be issued on or after September 30, 1996, and on or before February
28, 1997, in connection with the execution and delivery of one or more Credit
- 9 -
Agreements, dated on or after September 30, 1996, but on or before February 28,
1997, among the Corporation and the parties signatory thereto.
1994 CAPITAL SUPPORT WARRANTS shall mean the Common Stock Purchase Warrants
issued to certain Investors in connection with the provision of a letter by each
such Investor to the Company's independent accountants committing to fund the
Company's cash flow requirements (up to a fixed amount) for the period ending
December 31, 1994.
SECTION 2. CERTAIN COVENANTS OF THE CORPORATION.
2.1 MEETINGS OF THE BOARD OF DIRECTORS. The Corporation shall call,
and use its best efforts to have, regular meetings of the Board not less often
than quarterly. The Corporation shall pay all reasonable and appropriately
documented travel expenses and other out-of-pocket expenses incurred by
directors who are not employed by the Corporation in connection with attendance
at meetings to transact the business of the Corporation or attendance at
meetings of the Board or any committee thereof.
2.2 RESERVATION OF SHARES OF COMMON STOCK AND PREFERRED STOCK. The
Corporation shall at all times have authorized and reserved out of its
authorized but unissued shares of Common Stock, a sufficient number of shares of
Common Stock to provide for the conversion of the Series Preferred Shares.
Neither the issuance of the Series Preferred Shares nor the shares of Common
Stock issuable upon the conversion of the Series Preferred Shares shall be
subject to a preemptive right of any other Stockholder.
2.3 RIGHT OF FIRST REFUSAL.
(a) The Corporation shall not issue, sell or exchange, agree to
issue, sell or exchange, or reserve or set aside for issuance, sale or exchange,
any Offered Securities unless in each case the Corporation shall have first
offered to sell to the Investors all of such Offered Securities, less only such
number of shares, in any venture capital round of financing, that shall be
offered to BWH (on the same terms, including but not limited to the price per
share, that such Offered Securities are offered to all other Investors) in order
to enable BWH to maintain its percentage ownership in the Corporation that
exists immediately prior to such venture capital round of financing (the "BWH
Securities"), on the terms set forth herein (as to all Investors, collectively,
and in the aggregate, the "Equity Percentage Securities"). Each Investor shall
be entitled to purchase up to its Equity Percentage of the Equity Percentage
Securities. Each Investor may delegate its rights and obligations with respect
to such Offer to one or more members of its Group, which members shall
thereafter be deemed to be "Investors" for the purpose of applying this Section
2.3 to such Offer.
(b) The Corporation shall deliver to each Investor written
notice of the offer to sell to such Investor its Equity Percentage of the Equity
Percentage Securities, and to BWH written notice of the offer to sell to BWH the
BWH Securities, specifying the price and terms and conditions of the offer
(each, an "Offer"). The Offer by its terms shall remain open and irrevocable for
a period of 30 days from the date of its delivery to such Investor or BWH, as
- 10 -
the case may be (the "30-Day Period"), subject to extension solely with respect
to the Investors to include the Excess Securities Period (as such term is
hereinafter defined).
(c) Each Investor and BWH shall evidence its intention to
accept its Offer by delivering a written notice signed by the Investor or BWH,
as the case may be, setting forth the number of shares of the Equity Percentage
Securities or the BWH Securities that the Investor or BWH, respectively, elects
to purchase (the "Notice of Acceptance"). The Notice of Acceptance must be
delivered to the Corporation prior to the end of the 30-Day Period.
(d) If any Investor fails to exercise its right hereunder to
purchase all of its Equity Percentage of the Equity Percentage Securities, or if
BWH fails to exercise its right to purchase all of the BWH Securities, the
Corporation shall so notify the other Investors in a written notice (the "Excess
Securities Notice") . The Excess Securities Notice shall be given by the
Corporation promptly after it learns of the intentions of (i) all Investors with
respect to the purchase by each such Investor of less than all of its Equity
Percentage of the Equity Percentage Securities, or (ii) of BWH to purchase less
than all of the BWH Securities, but in no event later than ten (10) days after
the expiration of the 30-Day Period. The Investors who or which have agreed to
purchase their Equity Percentage of the Equity Percentage Securities shall have
the right to purchase the portion of the Equity Percentage Securities not
purchased by such Investor and the portion of the BWH Securities not purchased
by BWH (the "Excess Securities"), on a PRO RATA basis (as to each Investor,
calculated with respect to a percentage figure which expresses the ratio that
the number of shares of issued and outstanding Common Stock, on a fully diluted
basis, then owned by such Investor who or which has agreed to purchase its
Equity Percentage of the Offered Securities bears to the aggregate number of
shares of issued and outstanding Common Stock then owned by all Investors, on a
fully diluted basis, who or which have agreed to purchase their Equity
Percentage of the Offered Securities), by giving notice within ten (10) days
after receipt of the Excess Securities Notice from the Corporation. The twenty
(20) day period during which (i) the Corporation must give the Excess Securities
Notice to the other Investors, and (ii) each of the other Investors must give
the Corporation notice of its intention to purchase all or any portion of its
PRO RATA share of the its Excess Securities, is hereinafter referred to as the
"Excess Securities Period."
(e) If the Investors and BWH tender their Notices of Acceptance
prior to the end of the 30-Day Period indicating their intention to purchase all
of the Offered Securities or, if prior to the termination of the Excess
Securities Period, the Investors tender Excess Securities Notices to purchase
all of the Excess Securities, the Corporation shall schedule a closing of the
sale of all such Offered Securities. Upon the closing of the sale of the Offered
Securities to be purchased by the Investors, and subject to the closing of the
BWH Securities to be purchased by BWH, each Investor shall (i) purchase from the
Corporation that portion of the Equity Percentage Securities and the Excess
Securities for which it tendered a Notice of Acceptance and an Excess Securities
Notice, if applicable, upon the terms Specified in the Offer, and (ii) execute
and deliver an agreement further restricting transfer of such Equity Percentage
Securities substantially as set forth in Section 3.1, 3.2 and 3.3 of this
Agreement. In addition, with respect to the Offered Securities being purchased
by the Investors, the Corporation shall provide each such Investor with the
rights and benefits set forth in this Agreement. Upon the closing of the sale of
the BWH Securities to be purchased by BWH, BWH shall (i) purchase
- 11 -
from the Corporation that portion of the BWH Securities for which it tendered a
Notice of Acceptance upon the terms specified in the Offer, and (ii) execute and
deliver an agreement further restricting transfer of such BWH Securities
substantially as set forth in Section 6 of the Stock Restriction Agreement dated
as of the date hereof between the Corporation and BWH. The obligation of the
Investors and BWH to purchase such Offered Securities is further conditioned
upon the preparation of a purchase agreement embodying the terms of the Offer,
which shall be reasonably satisfactory in form and substance to such Investors,
BWH and counsel for each of the Investors and BWH.
(f) If the Investors and BWH do not tender their Notices of
Acceptance prior to the end of the 30-Day Period, or if prior to the termination
of the Excess Securities Period, the Investors tender Excess Securities Notices
to purchase less than all of the Excess Securities, the Corporation shall have
ninety (90) days from the expiration of the 30-Day Period, or the Excess
Securities Period, if applicable, to sell the Offered Securities (including the
Excess Securities) refused by the Investors (the "Refused Securities") to any
other person or persons, but only upon terms and conditions which are in all
material respects (including, without limitation, price and interest rate) no
more favorable to such other person or persons, and no less favorable to the
Corporation, than those set forth in the Offer. Upon and subject to the closing
of the sale of all of the Refused Securities (which shall include full payment
to the Corporation), each Investor and BWH, as the case may be, shall (i)
purchase from the Corporation those Offered Securities (including, with respect
to the Investors, the Excess Securities) for which it tendered a Notice of
Acceptance and an Excess Securities Notice, if applicable, upon the terms
specified in the Offer, and (ii) execute and deliver an agreement restricting
transfer of such Offered Securities (including the Excess Securities)
substantially as set forth in Sections 3.1, 3.2 and 3.3 of this Agreement. In
addition, with respect to the Offered Securities being purchased by the
Investors, the Corporation shall provide each such Investor with the rights and
benefits set forth in this Agreement. The Corporation agrees, as a condition
precedent to accepting payment for and making delivery of any Refused Securities
to any executive officer, employee, consultant or independent contractor of or
to the Corporation, or to any other person, to have each and every such person
execute and deliver a Stock Restriction Agreement substantially in the form
attached hereto as EXHIBIT A, or as may be modified or amended from time to time
with the prior approval of the holders of a majority of the combined voting
power of the Series Preferred Shares then outstanding, calculated in accordance
with Section A.6 of Article III of the Certificate (including in such
calculation, any outstanding Restricted Shares held by such holders), to the
extent such purchaser has not already executed such Agreement. The obligation of
the Investors and BWH, as the case may be, to purchase such Offered Securities
(including, with respect to the Investors, the Excess Securities) is further
conditioned upon the preparation of a purchase agreement embodying the terms of
the Offer, which shall be reasonably satisfactory in form and substance to such
Investors, BWH and counsel for each of the Investors and BWH. Notwithstanding
the foregoing, it shall not be a condition to the acquisition of shares of
Preferred Stock pursuant to this Section 2.3 by such directors, officers,
employees, consultants or independent contractors of the Corporation that such
shares of Preferred Stock be subject to the restrictions imposed by a Stock
Restriction Agreement (other than the restrictions imposed by or arising out of
federal and state securities laws).
- 12 -
(g) In each case, any Offered Securities not purchased either
by the Investors, BWH or by any other person in accordance with this Section 2.3
may not be sold or otherwise disposed of until they are again offered to the
Investors under the procedures specified in Paragraphs (a), (b), (c), (d), (e)
and (f) hereof.
(h) Each Investor and BWH may, by prior written consent, waive
its rights under this Section 2.3. Such a waiver shall be deemed a limited
waiver and shall only apply to the extent specifically set forth in the written
consent of such Investor or BWH.
2.4 NEGATIVE COVENANTS.
(a) SUPERMAJORITY APPROVALS. The Corporation shall not,
directly or indirectly, take any of the actions specified in Article III,
Section A.6(c) of the Certificate without the prior written consent or vote of
the Investors holding at least sixty five percent (65%) of the then outstanding
Series Preferred Shares held by Investors, determined in accordance with Section
A.6(a) of the Certificate.
(b) STOCK AND OPTION AGREEMENTS. Without the prior written
consent or vote of the Investors holding a majority of the then outstanding
Series Preferred Shares held by Investors, determined in accordance with Section
A.6(a) of Article III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such Investors), the Corporation shall not
(i) issue any shares of Common Stock or options, warrants or other rights to
acquire Common Stock or other securities of the Corporation to any employee,
officer, director, consultant, independent contractor or other person or entity
except for Excluded Securities, (ii) grant any stock options with a per share
exercise price that is less than the fair market value of such shares of stock,
or (iii) make any restricted stock awards at a per share purchase price that is
less than the fair market value of the restricted stock, such fair market value
in the foregoing Subsection (ii) and in this subsection (iii) to be determined
by the Board of Directors.
(c) REGISTRATION RIGHTS. The Corporation shall not hereafter
grant to any persons any rights to register or qualify stock of the Corporation
under federal or state securities laws, unless it shall have first obtained the
written consent of Investors holding a majority of the then outstanding Series
Preferred Shares held by Investors, determined in accordance with Section A.6(a)
of Article III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such holders).
2.5 FILING OF REPORTS UNDER THE EXCHANGE ACT.
(a) The Corporation shall give prompt notice to the holders of
Series Preferred Shares of (i) the filing of any registration statement (an
"Exchange Act Registration Statement") pursuant to the Exchange Act, relating to
any class of equity securities of the Corporation, (ii) the effectiveness of
such Exchange Act Registration Statement, and (iii) the number of shares of such
class of equity Securities outstanding, as reported in such Exchange Act
Registration Statement, in order to enable the holders of Series Preferred
Shares to comply with any reporting requirements under the Exchange Act or the
Securities Act. Upon the written
- 13 -
request of a majority in interest of the holders of Series Preferred Shares, the
Corporation shall, at any time after the Corporation has registered any shares
of Common Stock under the Securities Act, file an Exchange Act Registration
Statement relating to any class of equity securities of the Corporation then
held by the holders of Series Preferred Shares or issuable upon conversion or
exercise of any class of debt or equity securities or warrants or options of the
Corporation then held by the Investors, whether or not the class of equity
securities with respect to which such request is made shall be held by the
number of persons which would require the filing of a registration statement
under Section 12(g)(1) of the Exchange Act.
(b) If the Corporation shall have filed an Exchange Act
Registration Statement or a registration statement (including an offering
circular under Regulation A promulgated under the Securities Act) pursuant to
the requirements of the Securities Act, which shall have become effective (and
in any event, at all times following the initial public offering of any of the
securities of the Corporation), then the Corporation shall comply with all of
the reporting requirements of the Exchange Act (whether or not it shall be
required to do so) and shall comply with all other public information reporting
requirements of the Commission as a condition to the availability of an
exemption from the Securities Act for the sale of any of the Restricted
Securities by any holder of Restricted Securities (including any such exemption
pursuant to Rule 144 or Rule 144A thereof, as amended from time to time, or any
Successor rule thereto or otherwise). The Corporation shall cooperate with each
holder of Restricted Securities in supplying such information as may be
necessary for such holder of Restricted Securities to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of an exemption from the Securities Act (under
Rule 144 or Rule 144A thereunder or otherwise) for the sale of any of the
Restricted Securities by any holder of Restricted Securities.
2.6 ACCESS TO RECORDS. Until such time that the Corporation has a
class of its equity securities registered under the Exchange Act and is required
to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act,
the Corporation shall afford to each Major Investor and such Major Investor's
employees, counsel and other authorized representatives, free and full access,
at all reasonable times and for reasonable periods of time, to all of the books,
records and properties of the Corporation and to all officers and employees of
the Corporation.
2.7 FINANCIAL REPORTS. Until such time that the Corporation has a
class of its equity securities registered under the Exchange Act and is required
to file reports thereunder pursuant to Sections 13 or 15(d) of the Exchange Act,
except with respect to the obligation set forth in Section 2.7(e)(i) hereunder
which shall survive such time, the Corporation shall furnish each Major Investor
with the financial information described below:
(a) Within 20 days after the last day of each month (the
"Target Month") (or such other calendar period as is approved by the Board),
financial statements, including a balance sheet as of the last day of such
Target Month, a statement of income (or monthly operating expenses) for such
month, together with a cumulative statement of income from the first day of the
current year to the last day of such Target Month, which statements shall be
prepared from the books and records of the Corporation, a cash flow analysis,
together with cumulative cash flow analyses from the first day of the current
year to the last day of such
- 14 -
month, and a comparison between the actual monthly operating expenses and the
projected figures for such month and the comparable figures for the prior year,
subject to the provisions of Section 2.9 hereof.
(b) Upon receipt of a request from any of the Major Investors
prior to the end of a quarterly accounting period, the Corporation shall deliver
to each of the Major Investors, within 45 days after the end of such quarterly
accounting period, unaudited financial statements for such quarterly accounting
period, certified by the Chief Financial Officer or the Treasurer of the
Corporation, as presenting fairly the financial condition and results of
operations of the Corporation and as having been prepared on a basis consistent
with the accounting Principles reflected in the Corporation's annual audited
financial statements, accompanied by a report, Signed by the Chief Financial
Officer or the Treasurer of the Corporation, summarizing the operating and
financial highlights of the Corporation for such quarterly accounting period,
which report shall include (i) a comparison between the actual quarterly
operating and financial results, the Budget (as defined in Section 2.8 hereof)
and the results of the similar quarterly accounting period for the prior fiscal
year of the Corporation, together with an explanation of material variances from
the Budget and such similar quarterly accounting period, as the case may be, and
(ii) a narrative analysis of operations and trends in the business of the
Corporation during such quarterly accounting period.
(c) Within 90 days after the end of each fiscal year of the
Corporation, audited financial statements of the Corporation, which shall
include an income statement and a statement of cash flow for such fiscal year
and a balance sheet as of the last day thereof, each prepared in accordance with
generally accepted accounting principles consistently applied, and accompanied
by the report of such independent certified public accountants as shall have
been approved by the Board.
(d) If for any period the Corporation shall have any subsidiary
or subsidiaries whose accounts are consolidated with those of the Corporation,
then the financial statements delivered for such period pursuant to paragraphs
(a), (b) and (c) of this Section 2.7 shall be the consolidated and consolidating
financial statements of the Corporation for all such consolidated subsidiaries.
(e) Promptly upon becoming available:
(i) copies of all financial statements, reports, press
releases, notices, proxy statements and other documents sent by the Corporation
to its Stockholders or released to the public and copies of all regular and
periodic reports, if any, filed by the Corporation with the Commission or any
securities exchange or self-regulatory organization; and
(ii) any other financial or other information available to
management of the Corporation that any of the Major Investors shall have
reasonably requested on a timely basis.
2.8 BUDGET AND OPERATING FORECAST. Until such time that the
Corporation has a class of its equity securities registered under the Exchange
Act and is required to file reports
- 15 -
thereunder pursuant to Sections 13 or 15(d) of the Exchange Act, the Corporation
shall prepare and submit to the Board and each of the Major Investors an
operating plan with monthly and quarterly breakdowns (the "Budget") for each
fiscal year at least 45 days prior to the beginning of each fiscal year of the
Corporation. The Budget shall be deemed accepted as the Budget for such fiscal
year only when it has been approved by the Board. The Budget shall be reviewed
by the Corporation periodically and all changes therein, and all material
deviations therefrom, shall be reviewed by the Board on at least a quarterly
basis.
2.9 SYSTEM OF ACCOUNTING. The Corporation shall maintain, and cause
each of its subsidiaries, when and if any shall exist, to maintain, its books of
accounts, related records and system of accounting in accordance with good
business practices and generally accepted accounting principles, and shall cause
the matters contained therein to be appropriately and accurately reflected in
the financial reports (which shall be prepared in accordance with generally
accepted accounting principles) furnished pursuant to this Agreement.
2.10 RESTRICTION ON TRANSFER RIGHTS. The rights granted to each Major
Investor pursuant to Sections 2.6 through 2.8 hereof shall not be transferred or
assigned by any Investor to, and shall not inure to the benefit of, any
successor, transferee or assignee of any Investor, which is engaged in any line
of business directly competitive with the Corporation.
2.11 CONFIDENTIALITY AND NON-COMPETITION AGREEMENTS FOR KEY
EMPLOYEES. The Corporation shall cause each person who is presently an employee
of or a consultant or independent contractor to the Corporation or who becomes
an employee of or a consultant to the Corporation subsequent to the date hereof
and who shall have or be proposed to have access to confidential or proprietary
information of the Corporation to execute a confidentiality and non-competition
agreement in form and substance attached hereto or otherwise approved by the
Board prior to the commencement of such person's employment by the Corporation
in such capacity.
2.12 STOCK RESTRICTION AGREEMENT FOR DIRECTORS, OFFICERS EMPLOYEES
AND CONSULTANTS WHO ARE OR BECOME STOCKHOLDERS. The Corporation shall cause each
of its directors, officers, employees, consultants or independent contractors
who own any shares of capital stock of the Corporation, or exercises any
options, warrants or other rights to purchase any shares of such capital stock,
or who may own in the future any such shares, or options, warrants or other
rights to purchase such shares, to execute a Stock Restriction Agreement
substantially in the form attached hereto as EXHIBIT A, and as may be modified
and amended from time to time with the approval of the holders of a majority of
the combined voting power of the Series Preferred Shares then outstanding,
determined in accordance with Section A.6(a) of Article III of the Certificate
(including, in such calculation, any outstanding Restricted Shares held by such
holders), prior and as a condition to the acquisition of such shares, or
options, warrants or rights, by such person. Notwithstanding the foregoing, it
shall not be a condition to the acquisition of shares of Preferred Stock
pursuant to Section 2.3 hereof by such directors, officers, employees,
consultants or independent contractors of the Corporation that such shares of
Preferred Stock be subject to the restrictions imposed by a Stock Restriction
Agreement (other than the restrictions imposed by or arising out of federal and
state securities laws)
- 16 -
2.13 MARKETING AND PROMOTIONAL MATERIAL. Each of the Investors will
have the right to review and approve, in advance of publication, distribution or
dissemination, any reference to such Investor or any entity affiliated with such
Investor (other than the Corporation), contained in any document, instrument,
report or filing or in any advertising, marketing, promotional and similar
materials.
2.14 ENVIRONMENTAL MATTERS. The Corporation shall promptly advise the
Investors in writing of any pending or threatened claim, demand or action by any
governmental authority or third party relating to any Hazardous Materials
affecting the Property or of any failure to materially comply with the
Environmental Laws, in each case of which it has knowledge. The Corporation
shall not discharge, place, release, spill or dispose of any Hazardous Materials
or any other pollutants or effluents upon the Property or elsewhere (including,
but not limited to, underground injection of such substances), and the
Corporation shall not discharge into the air any emission which would require a
permit under the Clean Air Act or its state counterparts or any other
Environmental Laws, except in compliance with the Environmental Laws. The
Stockholders of the Corporation shall have no control over, or authority with
respect to, the waste disposal operations of the Corporation. The Corporation
hereby indemnifies, defends and holds harmless the Investors from and against
any and all manner of actions, causes of action, suits, debts, accounts,
controversies, judgments, claims, demands, losses or liabilities of any nature
(including reasonable attorneys' fees) directly or indirectly arising out of or
attributable to (a) any misrepresentation or breach of the representations and
covenants set forth in Section 5.17 of the Series E Stock Purchase Agreement, or
(b) the use, generation, storage, release, threatened release, discharge,
disposal or presence of Hazardous Materials on, under or about the Property by
any person during the period that the Corporation was the legal or equitable
owner of the Property or which occurred prior to such time and was otherwise
actually known by, or should have been known by, the Corporation. The obligation
of the Corporation to indemnify the Investors shall specifically cover and
include, without limitation, all fines and penalties imposed by federal, state
or local authorities, costs of removing or neutralizing the Hazardous Materials,
injury to the property adjoining the Property, injury to persons living or
working on or about the Property or adjoining or otherwise affecting property,
and all other indirect or consequential damages incurred by the Investors.
2.15 TERMINATION OF COVENANTS. The covenants set forth in this
Section 2 (other than Sections 2.5, 2.11, 2.13 and the indemnities provided in
Section 2.14) shall terminate upon the closing of an Initial Public Offering.
SECTION 3. TRANSFER OF SECURITIES; REGISTRATION RIGHTS.
3.1 RESTRICTION ON TRANSFER. The Restricted Securities shall not be
transferable, except upon the conditions specified in this Section 3, which
conditions are intended solely to ensure compliance with the provisions of the
Securities Act in respect of the Transfer thereof.
3.2 RESTRICTIVE LEGEND. Each certificate evidencing any Restricted
Securities and each certificate evidencing any such securities issued to
subsequent transferees of any
- 17 -
Restricted Securities shall (unless otherwise permitted by the provisions of
Section 3.3 or 3.10 hereof) be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW. THE SECURITIES MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR
LAW. ADDITIONALLY, THE TRANSFER OF THESE SECURITIES IS
SUBJECT TO THE CONDITIONS SPECIFIED IN A STOCKHOLDERS'
AGREEMENT AMONG NITROMED, INC. AND CERTAIN OTHER SIGNATORIES
THERETO, AND NO TRANSFER OF SUCH SECURITIES SHALL BE VALID
OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF NITROMED, INC.
3.3 NOTICE OF TRANSFER. By acceptance of any Restricted Securities,
the holder thereof agrees to give prior written notice to the Corporation of
such holder's intention to effect any Transfer and to comply in all other
respects with the provisions of this Section 3.3. Each such notice shall
describe the manner and circumstances of the proposed Transfer and shall be
accompanied by: (a) the written opinion of counsel for the holder of such
Restricted Securities, or, at such holder's option, a representation letter of
such holder, addressed to the Corporation (which opinion and counsel, or
representation letter, as the case may be, shall be reasonably acceptable to the
Corporation), as to whether, in the case of a written opinion, in the opinion of
such counsel, such proposed Transfer involves a transaction requiring
registration of such Restricted Securities under the Securities Act and
applicable state securities laws or an exemption thereunder is available, or, in
the case of a representation letter, such letter sets forth a factual basis for
concluding that such proposed transfer involves a transaction requiring
registration of such Restricted Securities under the Securities Act and
applicable State Securities laws or that an exemption thereunder is available,
or (b) if such registration is required and if the provisions of Section 3.4
hereof are applicable, a written request addressed to the Corporation by the
holder of such Restricted Securities, describing in detail the proposed method
of disposition and requesting the Corporation to effect the registration of such
Restricted Shares pursuant to the terms and provisions of Section 3.4 hereof;
PROVIDED, HOWEVER, that (y) in the case of a transfer by a holder to a member of
such holder's Group, no such opinion of counsel or representation letter of the
holder shall be necessary, provided that the transferee agrees in writing to be
subject to Sections 3.1, 3.2, 3.3 and 3.10 hereof to the same extent as if such
transferee were originally a
- 18 -
signatory to this Agreement, and (z) in the case of any holder of Restricted
Securities that is a partnership, no such opinion of counsel or representation
letters of the holder shall be necessary for a transfer by such holder to a
partner of such holder, or a retired partner of such holder who retires after
the date hereof, or the estate of any such partner or retired partner if, with
respect to such transfer by a partnership, (i) such transfer is made in
accordance with the partnership agreement of such partnership, and (ii) the
transferee agrees in writing to be subject to the terms of Sections 3.1, 3.2,
3.3 and 3.10 hereof to the same extent as if such transferee were originally a
signatory to this Agreement. If in such opinion of counsel or as reasonably
concluded from the facts set forth in the representation letter of the holder
(which opinion and counsel, or representation letter, as the case may be, shall
be reasonably acceptable to the Corporation), the proposed transfer may be
effected without registration under the Securities Act and any applicable state
securities laws or "blue sky" laws, then the holder of Restricted Securities
shall thereupon be entitled to effect such transfer in accordance with the terms
of the notice delivered by it to the Corporation. Each certificate or other
instrument evidencing the securities issued upon such Transfer (and each
certificate or other instrument evidencing any such securities not Transferred)
shall bear the legend set forth in Section 3.2 hereof unless: (a) in such
opinion of such counsel or as can be concluded from the representation letter of
such holder (which opinion and counsel or representation letter shall be
reasonably acceptable to the Corporation) the registration of future Transfers
is not required by the applicable provisions of the Securities Act and state
securities laws, or (b) the Corporation shall have waived the requirement of
such legend; PROVIDED, HOWEVER, that such legend shall not be required on any
certificate or other instrument evidencing the securities issued upon such
Transfer in the event such Transfer shall be made in compliance with the
requirements of Rule 144 (as amended from time to time or any similar or
successor rule) promulgated under the Securities Act. The holder of Restricted
Securities shall not effect any Transfer until such opinion of counsel or
representation letter of such holder has been given to and reasonably accepted
by the Corporation (unless waived by the Corporation) or until registration of
the Restricted Shares involved in the above- mentioned request has become
effective under the Securities Act. In the event that an opinion of counsel is
required by the registrar or transfer agent of the Corporation to effect a
transfer of Restricted Securities in the future, the Corporation shall seek and
obtain such opinion from its counsel, and the holder of such Restricted
Securities shall provide such reasonable assistance as is requested by the
Corporation (other than the furnishing of an opinion of counsel) to satisfy the
requirements of the registrar or transfer agent to effectuate such transfer.
3.4 REQUIRED REGISTRATION. If, at any time following the earlier of
(a) December 31, 2003, or (b) the closing of an Initial Public Offering, the
Corporation shall be requested (i) by Investors holding at least 40% of the
aggregate outstanding Restricted Securities held by all Investors (based on the
underlying Common Stock for which the Restricted Securities are convertible or
exercisable) to effect the registration under the Securities Act of Restricted
Shares, or (ii) after the first registration pursuant to this Section 3.4, by
one or more of the Investors holding Restricted Securities to effect the
registration under the Securities Act of Restricted Shares having a proposed
aggregate offering price equal to or greater than $1,000,000, then the
Corporation shall promptly give written notice of such proposed registration to
all holders of Restricted Securities, and thereupon the Corporation shall
promptly use its best efforts to effect the registration under the Securities
Act of the Restricted Shares that the Corporation has been requested to register
for disposition as described in the request of such holders of
- 19 -
Restricted Securities and in any response received from any of the holders of
Restricted Securities within 30 days after the giving of the written notice by
the Corporation; PROVIDED, HOWEVER, that the Corporation shall not be obligated
to effect any registration under the Securities Act except in accordance with
the following provisions and Section 3.6:
(a) Subject to Section 3.6, the Corporation shall not be
obligated to file and cause to become effective more than two (2) registration
statements in which Restricted Shares are registered under the Securities Act
pursuant to this Section 3.4, if all of the Restricted Shares offered pursuant
to such registration statements are sold thereunder upon the price and terms
offered.
(b) Notwithstanding the foregoing, the Corporation may include
in each such registration requested pursuant to this Section 3.4 any authorized
but unissued shares of Common Stock (or authorized treasury shares) for sale by
the Corporation or any issued and outstanding shares of Common Stock for sale by
others; PROVIDED, HOWEVER, that, if the number of shares of Common Stock so
included pursuant to this clause (b) exceeds the number of Restricted Shares
requested by the holders of Restricted Shares requesting such registration, then
such registration shall be deemed to be a registration in accordance with and
pursuant to Section 3.5; and PROVIDED FURTHER, HOWEVER, that the inclusion of
such previously authorized but unissued shares by the Corporation or issued and
outstanding shares of Common Stock by others in such registration does not
adversely affect, in the sole opinion of the holders of Restricted Securities
requesting such registration, the ability of the holders of Restricted
Securities requesting such registration to market the entire number of
Restricted Shares requested by them.
3.5 PIGGYBACK REGISTRATION.
(a) Each time that the Corporation proposes for any reason to
register any of its securities under the Securities Act, other than pursuant to
a registration statement on Form S-4 or Form S-8 or similar or successor forms
or pursuant to a transaction under Rule 145 of the Securities Act (collectively,
"Excluded Forms"), the Corporation shall promptly give written notice of such
proposed registration to all holders of Restricted Securities, which shall offer
such holders the right to request inclusion of any Restricted Shares in the
proposed registration.
(b) Each holder of Restricted Securities shall have 30 days
from the receipt of such notice to deliver to the Corporation a written request
specifying the number of Restricted Shares such holder intends to sell and the
holder's intended method of disposition.
(c) In the event that the proposed registration by the
Corporation is, in whole or in part, an underwritten public offering of
securities of the Corporation, any request under Section 3.5(b) may specify that
the Restricted Shares be included in the underwriting (i) on the same terms and
conditions as the shares of Common Stock, if any, otherwise being sold through
underwriters under such registration, or (ii) on terms and conditions comparable
to those normally applicable to offerings of common stock in reasonably similar
circumstances in the event that no shares of Common Stock other than Restricted
Shares are being sold through underwriters under such registration.
- 20 -
(d) Upon receipt of a written request pursuant to Section
3.5(b), the Corporation shall promptly use its best efforts to cause all such
Restricted Shares to be registered under the Securities Act, to the extent
required to permit sale or disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter
of any such proposed registration determines and advises in writing that the
inclusion of all Restricted Shares proposed to be included in the underwritten
public offering, together with any other issued and outstanding shares of Common
Stock proposed to be included therein by holders other than the holders of
Restricted Securities (such other shares hereinafter Collectively referred to as
the "Other Shares"), would interfere with the successful marketing of the
Corporation's securities, then the total number of such securities proposed to
be included in such underwritten public offering shall be reduced, (i) first by
the shares requested to be included in such registration by the holders of Other
Shares, and (ii) second, if necessary, (A) one-half (1/2) by the securities
proposed to be issued by the Corporation, and (B) one-half (1/2) by the
Restricted Shares proposed to be included in such registration by the holders
thereof, on a PRO RATA basis, based upon the number of Restricted Shares sought
to be registered by each such holder. The shares of Common Stock that are
excluded from the underwritten public offering pursuant to the preceding
sentence shall be withheld from the market by the holders thereof for a period,
not to exceed 180 days from the closing of such underwritten public offering,
that the managing underwriter reasonably determines as necessary in order to
effect such underwritten public offering.
3.6 REGISTRATIONS ON FORM S-2 AND S-3. At such time as the
Corporation shall have qualified for the use of Form S-2 or Form S-3 (or any
successor form promulgated under the Securities Act), the holders of Restricted
Securities shall have the right to request in writing up to two (2)
registrations on Form S-2 or Form S-3 in any twelve-month period. Each such
request by a holder shall: (a) specify the number of Restricted Shares which the
holder intends to sell or dispose of, (b) state the intended method by which the
holder intends to sell or dispose of such Restricted Shares, and (c) request
registration of Restricted Shares having a proposed aggregate offering price of
at least $500,000. Upon receipt of a request pursuant to this Section 3.6, the
Corporation shall provide written notice to all other holders of Restricted
Securities of such request and the provisions of Section 3.5 shall govern the
inclusion of additional Restricted Securities in such registration. The
Corporation shall use its best efforts to effect such registration or
registrations on Form S-2 or Form S-3.
3.7 PREPARATION AND FILING. If and whenever the Corporation is under
an obligation pursuant to the provision of this Section 3 to use its best
efforts to effect the registration of any Restricted Shares, the Corporation
shall, as expeditiously as practicable:
(a) prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective in accordance with Section
3.7(b) hereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as
- 21 -
may be necessary to keep such registration statement effective until the earlier
of (i) the sale of all Restricted Shares covered thereby or (ii) nine months,
and to comply with the provisions of the Securities Act with respect to the sale
or other disposition of all Restricted Shares covered by such registration
statement;
(c) furnish to each holder whose Restricted Shares are being
registered pursuant to this Section 3 such number of copies of any summary
prospectus or other prospectus, including a Preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such holder may reasonably request in order to facilitate the public sale or
other disposition of such Restricted Shares;
(d) use its best efforts to register or qualify the Restricted
Shares covered by such registration statement under the securities or blue sky
laws of such jurisdictions as each holder whose Restricted Shares are being
registered pursuant to this Section 3 shall reasonably request and do any and
all other acts or things which may be necessary or advisable to enable such
holder to consummate the public sale or other disposition in such jurisdictions
of such Restricted Shares; PROVIDED, HOWEVER, that the Corporation shall not be
required to consent to general service of process for all purposes in any
jurisdiction where it is not then subject to process, qualify to do business as
a foreign corporation where it would not be otherwise required to qualify or
submit to liability for state or local taxes where it is not otherwise liable
for such taxes;
(e) at any time when a prospectus covered by such registration
statement and relating thereto is required to be delivered under the Securities
Act within the appropriate period mentioned in Section 3.7(b) hereof, notify
each holder whose Restricted Shares are being registered pursuant to this
Section 3 of the happening of any event as a result of which the prospectus
included in such registration, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing and, at the request of such holder, prepare,
file and furnish to such holder a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(f) if the Corporation has delivered preliminary or final
prospectuses to the holders of Restricted Shares that are being registered
pursuant to this Section 3 and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Corporation shall
promptly notify such holders and, if requested, such holders shall immediately
cease making offers of Restricted Shares and return all prospectuses to the
Corporation. The Corporation shall promptly provide such holders with revised
prospectuses and, following receipt of the revised prospectuses, such holders
shall be free to resume making offers of the Restricted Shares; and
(g) furnish, at the request of any holder whose Restricted
Shares are being registered pursuant to this Section 3, on the date that such
Restricted Shares are delivered
- 22 -
to the underwriters for sale in connection with a registration pursuant to this
Section 3, if such securities are being sold through underwriters, or, on the
date that the registration statement with respect to such securities becomes
effective, if such securities are not being sold through underwriters, (i) an
opinion, dated such date, of the counsel representing the Corporation for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the holder or holders making such request, and (ii) a letter
dated such date, from the independent certified public accountants of the
Corporation, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the holder or holders making such
request.
3.8 EXPENSES. The Corporation shall pay all expenses incurred by the
Corporation in complying with this Section 3, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
National Association of Securities Dealers, Inc.), fees and expenses of
complying with the securities and blue sky laws of all such jurisdictions in
which the Restricted Shares are proposed to be offered and sold, printing
expenses and fees and disbursements of counsel (including with respect to each
registration effected pursuant to Sections 3.4, 3.5 and 3.6, the reasonable fees
and disbursements of counsel for the Investors, as selling Stockholder(s)
thereunder that are being registered pursuant to this Section 3); PROVIDED,
HOWEVER, that all underwriting discounts and selling commissions applicable to
the Restricted Shares covered by registrations effected pursuant to Section 3.4,
3.5 or 3.6 hereof shall be borne by the seller or sellers thereof, in proportion
to the number of Restricted Shares sold by each such seller or sellers.
3.9 INDEMNIFICATION.
(a) In the event of any registration of any Restricted Shares
under the Securities Act pursuant to this Section 3 or registration or
qualification of any Restricted Shares pursuant to Section 3.7(d) hereof, the
Corporation shall indemnify and hold harmless the seller of such shares, each
underwriter of such shares, if any, each broker or any other person acting on
behalf of such seller and each other person, if any, who controls any of the
foregoing persons, within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
any of the foregoing persons may become subject under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Restricted Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or any document incident to
registration or qualification of any Restricted Shares pursuant to Section
3.7(d) hereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or any violation by
the Corporation of the Securities Act or the Exchange Act or any state
securities or blue sky laws applicable to the Corporation and relating to action
or inaction required of the Corporation in connection with such registration or
qualification under the Securities Act or the Exchange Act
- 23 -
or such state securities or blue sky laws. The Corporation shall reimburse on
demand such seller, underwriter, broker or other person acting on behalf of such
seller and each such controlling person for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Corporation shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary or final prospectus or amendment or
supplement thereto or any document incident to registration or qualification of
any Restricted Shares pursuant to Section 3.7(d) hereof, in reliance upon and in
conformity with written information furnished to the Corporation by such seller,
underwriter, broker, other person or controlling person specifically for use in
the preparation thereof.
(b) Before Restricted Shares held by any prospective seller
shall be included in any registration pursuant to this Section 3, such
prospective seller shall have agreed to indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a)) the Corporation,
each director of the Corporation, each officer of the Corporation who signs such
registration statement and any person who controls the Corporation within the
meaning of the Securities Act or the Exchange Act, with respect to any untrue
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, if such untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Corporation through an
instrument duly executed by such seller specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus or
amendment or supplement; PROVIDED, HOWEVER, that the maximum amount of liability
in respect of such indemnification shall be limited, in the case of each
prospective seller, to an amount equal to the net proceeds actually received by
such prospective seller from the sale of Restricted Shares effected pursuant to
such registration and PROVIDED FURTHER, that no prospective seller shall be
required to make any representations or warranties to the Corporation or the
underwriters (other than representations and warranties regarding such
prospective seller, its title to the Restricted Shares to be sold and its
intended method of distribution thereof), or to undertake any indemnification
obligations to the Corporation or to the underwriters with respect thereto,
except as otherwise provided by this Section 3(b).
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in Section 3.9(a)
or (b) hereof, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 3.9, give written
notice to the latter of the commencement of such action. In case any such action
is brought against an indemnified party, the indemnifying party will be entitled
to participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and, after notice to
such indemnified party from the indemnifying party of its election to assume the
defense thereof, the indemnifying party shall be responsible for any legal or
other expenses subsequently incurred by it in connection with the defense
thereof; PROVIDED, HOWEVER, that, if any indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to such
indemnified party which are different from or additional to those available to
the indemnifying party, or that such claim or litigation involves or
- 24 -
could have an effect upon matters beyond the scope of the indemnity agreement
provided in this Section 3.9, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, and such
indemnifying party shall reimburse such indemnified party and any person
controlling such indemnified party for the fees and expenses of counsel retained
by the indemnified party which are reasonably related to the matters covered by
the indemnity agreement provided in this Section 3.9. The indemnifying party
shall not make any settlement of any claims indemnified against hereunder
without the written consent of the indemnified party or parties, which consent
shall not be unreasonably withheld.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act or the Exchange Act in any case in
which either (i) any holder of Restricted Shares exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 3.9, but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this Section 3.9 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
holder or any such controlling person in circumstances for which indemnification
is provided under this Section 3.9; then, in each such case, the Corporation and
such holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject as is appropriate to reflect the
relative fault of the Corporation and such holder in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, it being understood that the parties acknowledge that the
overriding equitable consideration to be given effect in connection with this
provision is the ability of one party or the other to correct the statement or
omission which resulted in such losses, claims, damages or liabilities, and that
it would not be just and equitable if contribution pursuant hereto were to be
determined by PRO RATA allocation or by any other method of allocation which
does not take into consideration the foregoing equitable considerations.
Notwithstanding the foregoing, (i) no such holder will be required to contribute
any amount in excess of the proceeds to it of all Restricted Shares sold by it
pursuant to such registration statement, and (ii) no person or entity guilty of
fraudulent misrepresentation, within the meaning of Section 11(f) of the
Securities Act, shall be entitled to contribution from any person or entity who
is not guilty of such fraudulent misrepresentation.
(e) The Corporation shall use its best efforts to ensure that
indemnification provisions adopted in any underwriting agreement are no more
restrictive than as set forth herein. Notwithstanding any of the foregoing, if,
in connection with an underwritten public offering of any Restricted Shares, the
Corporation, the holders of such Restricted Shares and the underwriters enter
into an underwriting or purchase agreement relating to such offering which
contains provisions covering indemnification among the parties, then the
indemnification provision of this Section 3.9 shall be deemed inoperative for
purposes of such offering.
3.10 REMOVAL OF LEGENDS, ETC. Notwithstanding the foregoing
provisions of this Section 3, the restrictions imposed by this Section 3 upon
the transferability of any Restricted Securities shall cease and terminate when
(a) any such Restricted Securities are sold or otherwise disposed of in
accordance with the intended method of disposition by the seller or
- 25 -
sellers thereof set forth in a registration statement or such other method
contemplated by Section 3.3 hereof that does not require that the securities
transferred bear the legend set forth in Section 3.2 hereof, including a
Transfer pursuant to Rule 144 or a successor rule thereof (as amended from time
to time), or (b) the holder of Restricted Securities has met the requirements
for transfer of such Restricted Securities pursuant to Subparagraph (k) of Rule
144 or a successor rule thereof (as amended from time to time) promulgated by
the Commission under the Securities Act. Whenever the restrictions imposed by
this Section 3 have terminated, a holder of a certificate for Restricted
Securities as to which such restrictions have terminated shall be entitled to
receive from the Corporation, without expense, a new certificate not bearing the
restrictive legend set forth in Section 3.2 hereof and not containing any other
reference to the restrictions imposed by this Section 3.
3.11 GRANTS OF REGISTRATION RIGHTS. The Corporation shall not grant
registration rights to any holder of securities of the Corporation (other than
the rights granted pursuant to this Agreement) without the prior written consent
of the holders of a majority in voting power of the Series Preferred Shares and
the Common Stock issued upon the conversion thereof. Any registration rights so
granted shall in any case be no more favorable than those granted hereby.
SECTION 4. SECURITIES ACT REGISTRATION STATEMENTS. Except for securities of
the Corporation registered on Excluded Forms, the Corporation shall not file any
registration statement under the Securities Act covering any securities unless
it shall first have given each holder of Restricted Securities written notice
thereof. The Corporation further covenants that each holder of Restricted
Securities shall have the right, at any time when it may be deemed to be a
controlling person of the Corporation, within the meaning of the Securities Act,
to participate in the preparation of such registration statement and to request
the insertion therein of material furnished to the Corporation in writing which
in such holder's judgment should be included. In connection with any
registration statement referred to in this Section 4, the Corporation shall
indemnify, to the extent permitted by law, each holder of Restricted Securities,
its officers, partners and directors and each person, if any, who controls any
such holder within the meaning of the Securities Act or the Exchange Act in the
same manner and to the same extent as the Corporation is required to indemnify a
seller of Restricted Shares in Section 3.9 hereof. If, in connection with any
such registration statement, any holder of Restricted Securities shall furnish
written information to the Corporation expressly for use in the registration
statement, then such holder shall indemnify the Corporation, each director of
the Corporation, each officer of the Corporation who signs such registration
statement and each person, if any, who controls the Corporation within the
meaning of the Securities Act to the same extent as a seller of Restricted
Shares is required to indemnify such persons in Section 3.9 hereof.
SECTION 5. ELECTION OF DIRECTORS.
5.1 VOTING FOR DIRECTORS. At each annual meeting of the stockholders
of the Corporation and at each special meeting of the stockholders of the
Corporation called for the purposes of electing directors of the Corporation,
and at any time at which stockholders of the Corporation shall have the right
to, or shall, vote for the election of directors, then, in each such event, each
Investor holding Series Preferred Shares shall vote all Series Preferred Shares
and
- 26 -
any other shares of voting stock of the Corporation then owned or controlled as
to voting rights) by it, whether by purchase, exercise of rights, warrants or
options, stock dividends or otherwise:
(a) to fix and maintain the number of directors on the Board of
Directors of the Corporation at not more than seven (7);
(b) pursuant to Paragraph A.6(b)(i) of Article III of the
Certificate, to elect to the Board:
(i) one (1) director designated by HCV III, HCV IV and
HCV V, who shall initially be Xxxx X. Xxxxxxxxxxx;
(ii) one (1) director designated by HCV VI, who shall
initially be Xxxxxx X. Xxxxx;
(iii) one (1) director designated by Rho Management Trust
II;
(iv) one (1) director designated by Rho Ventures IV (QP),
L.P. ("Rho Management"), who shall initially be Xxxx Xxxxxxx;
(v) one (1) director designated by Xxxxxxx & Xxxxxxx
Development Corporation, who shall initially be Xxxxx Xxxxx; and
(c) to elect two (2) directors designated by the Company, one
of which shall be the Chief Executive Officer, and one of which shall initially
be Xxxx Xxxxxxxx.
5.2 COOPERATION OF THE CORPORATION. The Corporation shall use its
best efforts to effectuate the purposes of this Section 5, including promoting
the adoption of any necessary amendment of the By-laws of the Corporation and
the Certificate.
5.3 NOTICES. The Corporation shall provide the Investors with at
least twenty (20) days' prior notice in writing of any intended mailing of
notice to the stockholders of the Corporation for a meeting at which directors
are to be elected. The Investors shall notify the Corporation in writing at
least three (3) days prior to such mailing of the persons designated by them
pursuant to Paragraph A.6(b) (i) of Article III of the Certificate and Section
5.1 above as nominees for election to the Board. In the absence of any notice
from the applicable Investors, the director(s) then serving and previously
designated by such applicable Investors shall be renominated.
5.4 REMOVAL. Except as otherwise provided in this Section 5, no
Investor shall vote to remove any member of the Board designated in accordance
with the foregoing provisions of this Section 5 unless the party who designated
such director (the "Designating Party") shall so vote or otherwise consent, and,
if the Designating Party shall so vote or otherwise consent, then the
non-designating Investors shall likewise so vote. Any vacancy on the Board
created by the resignation, removal, incapacity or death of any person
designated under Section 5.1 shall be filled by another person designated by the
original Designating Party. Each Investor shall vote all voting Series Preferred
Shares of the Corporation and all other shares
- 27 -
of voting stock of the Corporation owned or controlled by such Investor in
accordance with each such new designation, and no such vacancy shall be filled
in the absence of a new designation by the original Designating Party.
5.5 ADDITIONAL RIGHTS. The member of the Board designated by Rho
Management shall have the right to be a member of the Compensation Committee or
similar committee created by the Board. In the event that Rho Management does
not elect to designate a member of the Board, it shall be entitled to receive
notices of all Board meetings and have an observer attend all meetings of the
Board and committees thereof.
5.6 DURATION OF SECTION. This Section 5 and the rights and
obligations of the parties hereunder shall automatically terminate on the first
to occur of December 31, 2007 or the closing of an Initial Public Offering (the
"Expiration Date"). Prior to such termination the rights and obligations of any
Investor under this Section 5 shall terminate upon the date on which such
Investor no longer owns any Restricted Securities, whereupon the obligations of
the remaining Investors to vote in favor of the designee of such Investor shall
also terminate.
SECTION 6. REMEDIES. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party
hereto, the party or parties entitled to the benefit of such covenants or
agreements may proceed to protect and enforce its or their rights, either by
suit in equity and/or action at law, including, but not limited to, an action
for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement.
Notwithstanding the generality of the foregoing, in the event that the
Corporation breaches any of its covenants and/or agreements set forth herein,
the Investors shall have the additional remedy, in their sole discretion upon
the election by a majority in voting power thereof, provided that such breach
has not been cured by the 60th day after receipt of notice from an Investor of
such breach by the Corporation, to exercise immediately their right of
redemption set forth in Article III, Section A.5 of the Certificate, as provided
therein with respect to all, but not less than all, of their shares,
irrespective of whether such right of redemption otherwise is mature. With
respect to a breach of which the Corporation is aware or reasonably should be
aware, such 60 day period within which the Corporation shall have the right to
cure such breach shall be deemed to have commenced on the tenth day after the
occurrence of such breach, irrespective of notice of such breach from an
Investor, if the Corporation shall not have notified the Investors of such
breach by such date. The rights, powers and remedies of the parties under this
Agreement are cumulative and not exclusive of any other right, power or remedy
which such parties may have under any other agreement or law. No single or
partial assertion or exercise of any right, power or remedy of a party hereunder
shall preclude any other or further assertion or exercise thereof.
SECTION 7. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of the Corporation,
BWH, each of the Investors, the Management Holders and the respective successors
and assigns of the Corporation, BWH, each of the Investors and the Management
Holders. Subject to the requirements of Section 3 hereof, this Agreement and the
rights and duties of the Investors set forth herein may be freely assigned, in
whole or in part, by each Investor. Rights under Section 3 may be transferred
only to an Investor or to a person or entity which acquires at least 100,000
Restricted
- 28 -
Shares, and, in either case, any such transferee shall, as a condition to such
transfer, deliver to the Corporation a written instrument by which such
transferee identifies itself, gives the Corporation notice of the transfer of
such rights, identifies the securities of the Corporation owned or acquired by
it and agrees to be bound by the obligations imposed hereunder to the same
extent as if such transferee were an Investor hereunder. A transferee to whom
rights are transferred pursuant to this Section 7 will be thereafter deemed to
be an Investor for the purpose of the execution of such transferred rights and
may not again transfer such rights to any other person or entity, other than as
provided in this Section 7. Neither this Agreement nor any of the rights or
duties of the Corporation or BWH set forth herein shall be assigned by the
Corporation or BWH, as the case may be, in whole or in part, without having
first received the written consent of the Investors holding sixty-six and
two-thirds percent (66 2/3%) in voting power of the outstanding Series Preferred
Shares, determined in accordance with Section A.6(a) of the certificate
(including, in such calculation, any outstanding Restricted Shares by such
Investors).
SECTION 8. DURATION OF AGREEMENT. The rights and obligations of the
Corporation, BWH, each Investor and each Management Holder set forth herein
shall survive indefinitely, unless and until, by their respective terms, they
are no longer applicable.
SECTION 9. ENTIRE AGREEMENT. This Agreement, together with the other
writings referred to herein or delivered pursuant hereto which form a part
hereof, contains the entire agreement among the parties with respect to the
subject matter hereof and amends, restates and supersedes all prior and
contemporaneous arrangements or understandings with respect thereto; PROVIDED,
HOWEVER, that the provisions of the Research and License Agreement effective
August 1, 1992, as amended November 22, 1996, between the Corporation and BWH
(other than Section 8.9 thereof which is superseded in its entirety by this
Agreement and the Stock Restriction Agreement dated December 3, 1993 between the
Corporation and BWH) shall continue in full force and effect.
SECTION 10. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or duly sent by first
class registered, certified or overnight mail, postage prepaid, or telecopied
with a confirmation copy by regular mail, addressed or telecopied, as the case
may be, to such party at the address or telecopier number, as the case may be,
set forth below or such other address or telecopier number, as the case may be,
as may hereafter be designated in writing by the addressee to the addressor
listing all parties:
(i) If to the Corporation, to:
NitroMed, Inc.
00 Xxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
- 29 -
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
(ii) If to the Investors, as set forth on Schedule 1.
with a copy to:
Law Office of Xxxxxxx X.X. Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxx, Esq.
Telecopier: (000) 000-0000
(iii) If to BWH, to:
The Xxxxxxx and Women's Hospital
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Yajnick
with a copy to:
Xxxxxxx and Women's Medical Center, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Office of General Counsel
(iv) If to the Management Holders, as set forth on
Schedule 2.
All such notices, requests, consents and communications shall be deemed to
have been received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of mailing, on the third business day following the
date of such mailing, (c) in the case of overnight mail, on the first business
day following the date of such mailing, and (d) in the case of facsimile
transmission, when confirmed by facsimile machine report.
SECTION 11. CHANGES. The terms and provisions of this Agreement may not be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the written consent of the Corporation and the
holders of at least sixty-five percent (65%) in voting power of the Series
Preferred Shares then outstanding, determined in accordance with Section A.6(a)
of Article III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such holders); PROVIDED THAT no such
amendment may
- 30 -
reduce or materially adversely affect the rights of BWH or the Management
Holders without the consent of BWH or Management Holders holding a majority in
voting power of all Restricted Shares held by all Management Holders..
SECTION 12. ADDITIONAL INVESTORS. Persons or entities that, after the date
hereof, purchase Series E Preferred Shares pursuant to the Series E Stock
Purchase Agreement and become "Investors" thereunder may, with the prior written
approval of the Corporation (but without the need for approval by any other
party to this Agreement), become parties to this Agreement by executing and
delivering a counterpart signature page hereto, whereupon they shall be deemed
"Investors" and "Series E Investors" for all purposes of this Agreement.
SECTION 13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 14. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 15. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice-versa.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, excluding the
conflict of law doctrines of Delaware or any other jurisdiction to the contrary.
SECTION 18. EFFECTIVENESS. Notwithstanding any other provision of this
Agreement, this Agreement shall not be effective until the Closing (as such term
is defined in the Series D Stock Purchase Agreement).
SECTION 19. TERMINATION OF AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT.
Notwithstanding anything to the contrary contained in the Old Stockholders'
Agreement, the Old Stockholders' Agreement is hereby terminated in its entirety
and superseded by the terms and conditions of this Agreement.
[Remainder of Page Left Intentionally Blank]
- 31 -
IN WITNESS WHEREOF the parties hereto have executed this Fourth Amended and
Restated Stockholders' Agreement on the date first above written.
NITROMED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Executive Officer
HEALTHCARE VENTURES III, L.P.
By: HealthCare Partners III, L.P.,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Title: General Partner
HEALTHCARE VENTURES IV, L. P.
By: HealthCare Partners IV, L. P.,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Title: General Partner
HEALTHCARE VENTURES V, L. P.
By: HealthCare Partners V, L. P.,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Title: General Partner
HEALTHCARE VENTURES VI, L.P.
By: HealthCare Partners VI, L.P.,
as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Title: General Partner
- 32 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
RHO MANAGEMENT TRUST II
By: Rho Management Company, Inc.,
as Investment Adviser
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
RHO VENTURES IV, L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
RHO VENTURES IV GmbH & CO.
BETEILIGUNGS KG
By: Rho Capital Partners Verwaltungs GmbH,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
RHO VENTURES IV (QP), L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Title: Managing Director
- 33 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II,
L.P., as General Partner
By: /s/ illegible
-----------------------------------------
Title: General Partner
M & G EQUITIES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: President
XXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Trustee
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
*THE XXXXXXX AND WOMEN'S HOSPITAL, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director, Corporate Sponsored
Research and Licensing
----------
* Except with respect to Sections 2.2, 2.4 through 2.14, 3.1 through 3.4, 3.6
and 5.1 through 5.5. of the Agreement, under which BWH has no rights,
liabilities or responsibilities.
- 34 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
B.U.N.P.
By: /s/ illegible
-----------------------------------------
Name:
Title: Partner-B.U.N.P.
XXXXXXX AND XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX PARTNERS L.P.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
DELAWARE CHARTER AND TRUST
XXXX X. XXXXXX XXX
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Self Directed XXX
SENTRON MEDICAL, INC.
By:
-----------------------------------------
Name:
Title:
- 35 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
LOMBARD ODIER & CIE
By: /s/ Xxxxxxxxx Xxxxx /s/ Xxxxxxxx Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxx
Title: Vice President Assistant Manager
BANK XXXXXX XXXX & CO. LTD.
By: /s/ illegible
---------------------------------------------
Name:
Title: Vice President
AETNA LIFE INSURANCE COMPANY
By:
---------------------------------------------
Name:
Title:
MYTHEN TREUHAND & VERWALTUNGS AG
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Title: Xxxx Xxxxxxxx
CEO
BANK XXXXXXX & CO.
By:
---------------------------------------------
Name:
Title:
GZB BANK (SCHWEIZ) AG
By:
---------------------------------------------
Name:
Title:
- 36 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
---------------------------------------------
Xxxxxxxx Xxxxxx
CC/M NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name:
Title:
CC NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name:
Title:
CC/Q PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name:
Title:
DC 1998 NFA TRUST
By: /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
Title: Trustee
/s/ Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxx
---------------------------------------------
Xxxxxxxx Xxxxxx
- 37 -
[Signature Page to Fourth Amended and Restated Stockholders' Agreement]
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
---------------------------------------------
**Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
**Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
**Xxxxxx X. Xxxxx
/s/ L. Xxxxxx Xxxxx
---------------------------------------------
**L. Xxxxxx Xxxxx
----------
** Except with respect to Sections 2, 3.1 through 3.4, 3.6 and 5 hereof,
under which the signatory has no rights, liabilities or responsibilities.
- 38 -
SCHEDULE 1
HealthCare Ventures III, L.P.
HealthCare Ventures IV, L.P.
HealthCare Ventures V, L.P.
HealthCare Ventures VI, L.P.
00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Atlas Venture Fund II, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx-Xxxxxxxx Xxxxxxx
Rho Management Trust II
Rho Ventures IV, L.P.
Rho Ventures IV GmbH & Co. Beteiligungs KG
Rho Ventures IV (QP), L.P.
c/o Rho Management Co., Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Xxxxxx Trust
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X'Xxxxxxxxx
Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
M&G Equities, Inc.
c/o American Stock Transfer & Trust Co.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
The Xxxxxxx and
Women's Hospital, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Yajnick, Ph.D.
- 39 -
Xxxxxxx & Xxxxxxx Development Corporation
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Aetna Life Insurance Company
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
IG6U Private Equity Group
The Xxxxxxx Sachs Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B.U.N.P
c/o Boston University
Community Technology Fund
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx or Xxxxxxx Xxxxxxx
Xxxxxx Partners L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Delaware Charter and Trust
Xxxx X. Xxxxxx XXX
c/x Xxxxxx Capital Management
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Sentron Medical, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Group Director, Venture Projects
Lombard Odier & Cie
Xxxxxxxx.00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxxxx Xxxxx
- 40 -
Bank Xxxxxx Xxxx & Co. Ltd.
Xxxxxxxxxx. 00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxx Xxxxxx
Mythen Treuhand & Verwaltungs AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
c/o The Xxxxxxx Sachs Group
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Bank Xxxxxxx & Co.
Xxxxxxxxxxxxxxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
GZB Bank (Schweiz) XX
Xxxxxxxx 00
Xxxxxx, Xx-0000
Xxxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx 00
Xxxxxx, 0000
Xxxxxxxxxxx
CC/M NitroMed Holdings, L.P.
CC NitroMed Holdings, L.P.
CC/Q Partners, L.P.
c/o Care Capital LLC
Princeton Overlook One
000 Xxxxxxxx Xxxxxx & Xxxxx 0
Xxxxxxxxx, XX 00000
DC 1998 NFA Trust
c/o IFX Corporation
Venture American Securities
000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
- 41 -
Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
- 42 -
SCHEDULE 2
Xxxxxx Xxxxxx
c/o NitroMed, Inc.
00 Xxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx X. Xxxxxx
c/o NitroMed, Inc.
00 Xxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx X. Xxxxx
c/o NitroMed, Inc.
00 Xxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
L. Xxxxxx Xxxxx
c/o NitroMed, Inc.
00 Xxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
- 43 -
EXHIBIT A
Form of Stock Restriction Agreement
- 44 -
AMENDMENT NO. 1 AND WAIVER
TO
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This Amendment No. 1 and Waiver dated November 20, 2001 (the "Amendment")
to the Fourth Amended and Restated Stockholders' Agreement dated May 22, 2001
(the "Agreement") by and among NitroMed, Inc., a Delaware corporation (the
"Corporation"), the stockholders of the Corporation listed on SCHEDULE 1 thereto
(the "Investors"), the individuals listed on SCHEDULE 2 thereto and The Xxxxxxx
and Women's Hospital, Inc., is entered into by the Corporation and the
undersigned Investors representing at least 65% in voting power of the
outstanding Series Preferred Shares. Except as set forth below, the Agreement
shall remain in full force and effect. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Agreement.
WHEREAS, the Corporation intends to issue and sell 250,000 shares of Series
F Junior Convertible Preferred Stock, $.01 par value per share, of the
Corporation ("Series F Preferred Stock") to Boston Scientific Corporation, a
Delaware corporation ("Boston Scientific"), pursuant to a Series F Junior
Convertible Preferred Stock Purchase Agreement dated the date hereof; and
WHEREAS, the Corporation and the undersigned Investors desire to amend the
Agreement such that, among other things, Boston Scientific shall be made a party
thereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT. Acting in accordance with Section 11 of the
Agreement, the Agreement is hereby amended as follows:
(a) SCHEDULE 1 of the Agreement is hereby amended and restated in its
entirety, as set forth on EXHIBIT A attached hereto, pursuant to which Boston
Scientific is added to SCHEDULE 1 of the Agreement and thereby is deemed an
"Investor" as such term is defined in the Agreement, subject to all of the
terms, conditions, benefits, rights, limitations and restrictions applicable to
Investors set forth therein.
(b) Section 1 is hereby amended to:
(i) restate the definition of "Excluded Securities" to read in its
entirety as follows:
EXCLUDED SECURITIES shall mean, collectively:
(i) the Reserved Shares;
(ii) Common Stock issued or issuable to officers,
directors or employees of or consultants or independent contractors to
the Corporation, pursuant to any written agreement, plan or
arrangement, including pursuant to any options granted under the 1993
Equity Incentive Plan of the Corporation (the "1993 Equity Incentive
Plan"), to purchase, or rights to subscribe for, such Common Stock,
that is set forth on Schedule 5.2 of the Series F Stock Purchase
Agreement or that has been approved in form and in substance by the
holders of a majority of the combined voting power of the Series
Preferred Shares then outstanding, calculated in accordance with
Section A.6(a) of Article III of the Certificate (including, in such
calculation, any outstanding Restricted Shares held by such holders),
and which, as a condition precedent to the issuance of such shares,
provides for the vesting of such shares and subjects such shares to
restrictions on transfers and rights of first offer in favor of the
Corporation that have been approved by the holders of a majority of
the combined voting power of the Series Preferred Shares then
outstanding, calculated in accordance with Section A.6(a) of Article
III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such holders), (collectively,
the "Required Terms"), unless any of such Required Terms are waived by
holders at least a majority of the voting power of the Series
Preferred Shares then outstanding (determined as set forth in Section
A.6(a) of the Certificate); PROVIDED, HOWEVER, that the maximum number
of shares of Common Stock hereafter issuable pursuant to the 1993
Equity Incentive Plan and all such agreements, plans and arrangements
shall not exceed 2,288,200 shares (subject to adjustment as required
to comply with any anti-dilution rights set forth in any such
agreement, plan or arrangement);
(iii) Common Stock issued as a stock dividend payable in
shares of Common Stock, or capital stock of any class issuable upon
any subdivision, recombination, split-up or reverse stock split of all
the outstanding shares of such class of capital stock of the
Corporation;
(iv) any securities issued pursuant to the acquisition by
the Corporation of any other corporation, partnership, joint venture,
trust or other entity by any merger, stock acquisition,
reorganization, purchase of substantially all assets or otherwise in
which the Corporation, or its stockholders of record immediately prior
to the effective date of such transaction, directly or indirectly, own
at least a majority of the voting power of the acquired entity or the
resulting entity after such transaction; and
(v) any shares of Common Stock, Preferred Stock or any
other security convertible into or exercisable or exchangeable for
Common Stock or Preferred Stock issued to banks or leasing companies
in order to obtain financing or to secure leases of equipment; and
(vi) a maximum of 516,364 shares of Common Stock (subject
to adjustment) issued or issuable upon the exercise of the 1994 Bridge
Warrants,
- 2 -
1995 Bridge Warrants, 1996 Bridge Warrants and the 1994 Capital
Support Warrants.
(ii) restate the definition of "Series Preferred Shares" to read in
its entirety as follows:
SERIES PREFERRED SHARES shall mean collectively the Series A
Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares, Series E Preferred Shares and
Series F Preferred Shares.
(iii) add the following definitions:
SERIES F INVESTOR shall mean the holder of the Corporation's
Series F Preferred Stock.
SERIES F PREFERRED SHARES shall mean shares of Series F
Preferred Stock issued or issuable pursuant to the Series F Stock
Purchase Agreement.
SERIES F PREFERRED STOCK shall mean Series F Junior
Convertible Preferred Stock, par value $.01 per share, of the
Corporation.
SERIES F STOCK PURCHASE AGREEMENT shall mean the Series F
Junior Convertible Preferred Stock Purchase Agreement dated as of
November 20, 2001, as it may be amended from time to time, between the
Corporation and the Series F Investor.
(c) Section 12 shall be deleted in its entirety and a new Section
12 shall be inserted in lieu thereof which shall read as follows:
SECTION 12. ADDITIONAL INVESTORS. Any person or entity that,
on or after the date hereof, purchases Series F Preferred Shares
pursuant to the Series F Stock Purchase Agreement and becomes an
"Investor" thereunder may, with the prior written approval of the
Corporation (but without the need for approval by any other party to
this Agreement), become a party to this Agreement by executing and
delivering a counterpart signature page hereto, whereupon such person
or entity shall be deemed an "Investor" and "Series F Investor" for
all purposes of this Agreement.
2. WAIVER. Acting in accordance with Section 11 of the Agreement, the
undersigned hereby waive the Investors' rights of first refusal and of prior
notice under Section 2.3 of the Agreement with respect to the issuance by the
Corporation of the Series F Preferred Stock to Boston Scientific and the shares
of Common Stock issuable upon conversion of such shares of Series F Preferred
Stock.
3. The Agreement, as supplemented and modified by this Amendment, together
with the other writings referred to in the Agreement or delivered pursuant
thereto which form a part thereof, contains the entire agreement among the
parties with respect to the subject matter
- 3 -
thereof and amends, restates and supersedes all prior and contemporaneous
arrangements or understandings with respect thereto.
4. Upon the effectiveness of this Amendment, on and after the date hereof,
each reference in the Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference in the other documents
entered into in connection with the Agreement, shall mean and be a reference to
the Agreement, as amended hereby. Except as specifically amended above, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
5. This Amendment shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of Delaware without regard to
its principles of conflicts of laws.
6. This Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
[The remainder of this page has intentionally been left blank.]
- 4 -
IN WITNESS WHEREOF, The Corporation and each of the parties set forth on
the foregoing signature pages have caused this Amendment No. 1 and Waiver to
Fourth Amended and Restated Stockholders' Agreement to be executed as of the
date first above written.
NITROMED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
HEALTHCARE VENTURES III, L.P.
By: HealthCare Partners III, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Title: General Partner
HEALTHCARE VENTURES IV, L. P.
By: HealthCare Partners IV, L. P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Title: General Partner
HEALTHCARE VENTURES V, L. P.
By: HealthCare Partners V, L. P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Title: General Partner
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
HEALTHCARE VENTURES VI, L.P.
By: HealthCare Partners VI, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------------
Title: General Partner
RHO MANAGEMENT TRUST II
By: Rho Management Company, Inc.,
as Investment Adviser
By:
-----------------------------------------------
Title:
RHO VENTURES IV, L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By:
-----------------------------------------------
Title:
RHO VENTURES IV GmbH & CO.
BETEILIGUNGS KG
By: Rho Capital Partners Verwaltungs GmbH,
as General Partner
By:
-----------------------------------------------
Title:
- 6 -
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
RHO VENTURES IV (QP), L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------
Title: Managing Member
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II,
L.P., as General Partner
By: /s/ illegible
-----------------------------------------------
Title: General Partner
M & G EQUITIES, INC.
By:
-----------------------------------------------
Title: President
XXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Title: Trustee
THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, The Xxxxxxx Xxxxx
Group Inc.
- 7 -
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
*THE XXXXXXX AND WOMEN'S HOSPITAL, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Corporate Sponsored Research and
Licensing
B.U.N.P.
By: /s/ illegible
-----------------------------------------------
Name:
Title: Partner- B.U.N.P.
XXXXXXX AND XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX PARTNERS L.P.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
DELAWARE CHARTER AND TRUST
XXXX X. XXXXXX XXX
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Self Directed XXX
----------
* Except with respect to Sections 2.2, 2.4 through 2.14, 3.1 through 3.4, 3.6
and 5.1 through 5.5 of the Agreement, under which BWH has no rights, liabilities
or responsibilities.
- 8 -
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
SENTRON MEDICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
LOMBARD ODIER & CIE
By: /s/ Xxxxx Plage /s/Xxxxxxxx Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxx Plage Xxxxxxxx Xxxxx Xxxx
Title: Assistant Vice Assistant Manager
President
BANK XXXXXX XXXX & CO. LTD.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxx Xxxxxxx
Title: VP Vice President
AETNA LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Investment Manager
MYTHEN TREUHAND & VERWALTUNGS AG
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------------
Title: Xxxx Xxxxxxxx/CEO
BANK XXXXXXX & CO.
By:
-----------------------------------------------
Name:
Title:
- 9 -
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
GZB BANK (SCHWEIZ) AG
By:
-----------------------------------------------
Name:
Title:
--------------------------------------------------
Xxxxxxxx Xxxxxx
CC/M NITROMED HOLDINGS, L.P.
By:
----------------------------------------------
Name:
Title:
CC NITROMED HOLDINGS, L.P.
By:
-----------------------------------------------
Name:
Title:
CC/Q PARTNERS, L.P.
By:
-----------------------------------------------
Name:
Title:
DC 1998 NFA TRUST
By: /s/ Xxx Xxxxx
-----------------------------------------------
Name: Xxx Xxxxx
Title: Trustee
- 10 -
[Signature Page to Amendment No. 1 and waiver to
Fourth Amended and Restated Stockholder's Agreement]
/s/ Xxxxx X. Xxxxx
--------------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------------------
**Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
**Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------------------------
**Xxxxxx X. Xxxxx
/s/ L. Xxxxxx Xxxxx
--------------------------------------------------
**L. Xxxxxx Xxxxx
----------
** Except with respect to Sections 2, 3.1 through 3.4, 3.6 and 5 hereof, under
which the signatory has no rights, liabilities or responsibilities.
- 11 -
EXHIBIT A
SCHEDULE 1
HealthCare Ventures III, L.P.
HealthCare Ventures IV, L.P.
HealthCare Ventures V, L.P.
HealthCare Ventures VI, L.P.
00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Atlas Venture Fund II, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx-Xxxxxxxx Xxxxxxx
Rho Management Trust II
Rho Ventures IV, L.P.
Rho Ventures IV GmbH & Co. Beteiligungs KG
Rho Ventures IV (QP), L.P.
c/o Rho Management Co., Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Xxxxxx Trust
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X'Xxxxxxxxx
Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
M&G Equities, Inc.
c/o American Stock Transfer & Trust Co.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
The Xxxxxxx and
Women's Hospital, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Yajnick, Ph.X.
Xxxxxxx & Xxxxxxx Development Corporation
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Aetna Life Insurance Company
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
IG6U Private Equity Group
The Xxxxxxx Sachs Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B.U.N.P
c/o Boston University
Community Technology Fund
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx or Xxxxxxx Xxxxxxx
Xxxxxx Partners L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Delaware Charter and Trust
Xxxx X. Xxxxxx XXX
c/x Xxxxxx Capital Management
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Sentron Medical, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Group Director, Venture Projects
Lombard Odier & Cie
Xxxxxxxx.00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxxxx Xxxxx
- 13 -
Bank Xxxxxx Xxxx & Co. Ltd.
Xxxxxxxxxx. 00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxx Xxxxxx
Mythen Treuhand & Verwaltungs AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
c/o The Xxxxxxx Sachs Group
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Bank Xxxxxxx & Co.
Xxxxxxxxxxxxxxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
GZB Bank (Schweiz) XX
Xxxxxxxx 00
Xxxxxx, Xx-0000
Xxxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx 00
Xxxxxx, 0000
Xxxxxxxxxxx
CC/M NitroMed Holdings, L.P.
CC NitroMed Holdings, L.P.
CC/Q Partners, L.P.
c/o Care Capital LLC
Princeton Overlook One
000 Xxxxxxxx Xxxxxx & Xxxxx 0
Xxxxxxxxx, XX 00000
DC 1998 NFA Trust
c/o IFX Corporation
Venture American Securities
000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
- 14 -
Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
- 15 -
AMENDMENT NO. 2
TO
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This Amendment No. 2 dated May 12, 2003 (the "Amendment") to the Fourth
Amended and Restated Stockholders' Agreement dated May 22, 2001, as amended on
November 20, 2001 (the "Agreement"), by and among NitroMed, Inc., a Delaware
corporation (the "Corporation"), the stockholders of the Corporation listed on
SCHEDULE 1 thereto (the "Investors"), the individuals listed on SCHEDULE 2
thereto and The Xxxxxxx and Women's Hospital, Inc., is entered into by the
Corporation and the undersigned Investors representing at least 65% in voting
power of the outstanding Series Preferred Shares. Except as set forth below, the
Agreement shall remain in full force and effect. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to them in the
Agreement.
WHEREAS, the Corporation and the undersigned Investors desire to amend the
Agreement such that each Investor holding Series Preferred Shares shall not be
obligated to vote to elect to the Board a director designated by Xxxxxxx &
Xxxxxxx Development Corporation; and
WHEREAS, the Corporation and the undersigned Investors desire to further
amend the Agreement such that each Investor holding Series Preferred Shares
shall be obligated to vote to elect to the Board an additional director
designated by the Corporation and approved by at least a majority of the
directors on the Board of Directors of the Corporation, including the director
designated by HCV III, HCV IV and HCV V and the director designated by Rho
Ventures IV (QP), L.P.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT. Acting in accordance with Section 11 of the
Agreement, the Agreement is hereby amended as follows:
(a) Section 1 is hereby amended to restate paragraph (ii) of the
definition of "EXCLUDED SECURITIES" to read in its entirety as follows:
"(ii) Common Stock issued or issuable to officers,
directors or employees of or consultants or independent contractors to
the Corporation, pursuant to any written agreement, plan or
arrangement, including pursuant to any options granted under the 1993
Equity Incentive Plan of the Corporation (the "1993 Equity Incentive
Plan") or the 2003 Stock Incentive Plan of the Corporation (the "2003
Stock Incentive Plan"), to purchase, or rights to subscribe for, such
Common Stock that has been approved in form and in substance by the
holders of a majority of the combined voting power of the Series
Preferred Shares then outstanding, calculated in accordance with
Section A.6(a) of Article III of the Certificate (including, in such
calculation, any outstanding Restricted Shares held by such holders),
and which, as a condition precedent to the issuance of such
shares, provides for the vesting of such shares and subjects such
shares to restrictions on transfers and rights of first offer in favor
of the Corporation that have been approved by the holders of a
majority of the combined voting power of the Series Preferred Shares
then outstanding, calculated in accordance with Section A.6(a) of
Article III of the Certificate (including, in such calculation, any
outstanding Restricted Shares held by such holders), (collectively,
the "Required Terms"), unless any of such Required Terms are waived by
holders at least a majority of the voting power of the Series
Preferred Shares then outstanding (determined as set forth in Section
A.6(a) of the Certificate); PROVIDED, HOWEVER, that the maximum number
of shares of Common Stock hereafter issuable pursuant to the 1993
Equity Incentive Plan, the 2003 Stock Incentive Plan and all such
agreements, plans and arrangements shall not exceed 3,088,200 shares
(subject to adjustment as required to comply with any anti-dilution
rights set forth in any such agreement, plan or arrangement);"
(b) Section 5.1(b)(v) shall be deleted in its entirety.
(c) Section 5.1(c) shall be deleted in its entirety and a new Section
5.1(c) shall be inserted in lieu thereof which shall read as follows:
"(c) to elect three (3) directors designated by the
Corporation, one of which shall be the Chief Executive Officer, one of
which shall initially be Xxxx Xxxxxxxx, and one of which shall be
subject to approval by at least a majority of the directors on the
Board of Directors of the Corporation, including the approval of the
director designated by HCV III, HCV IV and HCV V and the director
designated by Rho Ventures IV (QP), L.P."
2. The Agreement, as supplemented and modified by this Amendment, together
with the other writings referred to in the Agreement or delivered pursuant
thereto which form a part thereof, contains the entire agreement among the
parties with respect to the subject matter thereof and amends, restates and
supersedes all prior and contemporaneous arrangements or understandings with
respect thereto.
3. Upon the effectiveness of this Amendment, on and after the date hereof,
each reference in the Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference in the other documents
entered into in connection with the Agreement, shall mean and be a reference to
the Agreement, as amended hereby. Except as specifically amended above, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
4. This Amendment shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of Delaware without regard to
its principles of conflicts of laws.
5. This Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
[The remainder of this page has intentionally been blank.]
- 2 -
IN WITNESS WHEREOF, The Corporation and each of the parties set forth on
the foregoing signature pages have caused this Amendment No. 2 to Fourth Amended
and Restated Stockholders' Agreement to be executed as of the date first above
written.
NITROMED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
HEALTHCARE VENTURES III, L.P.
By: HealthCare Partners III, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: General Partner
HEALTHCARE VENTURES IV, L.P.
By: HealthCare Partners IV, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: General Partner
HEALTHCARE VENTURES V, L.P.
By: HealthCare Partners V, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: General Partner
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
HEALTHCARE VENTURES VI, L.P.
By: HealthCare Partners VI, L.P.,
as General Partner
By /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: General Partner
RHO MANAGEMENT TRUST II
By: Rho Capital Partners, Inc.,
as Investment Adviser
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Partner
RHO VENTURES IV, L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Member
RHO VENTURES IV GmbH & CO.
BETEILIGUNGS KG
By: Rho Capital Partners Verwaltungs GmbH,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Director
- 4 -
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
RHO VENTURES IV (QP), L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Title: Managing Member
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II,
L.P., as General Partner
By: /s/ illegible
-----------------------------------------
Title: General Partner
M & G EQUITIES, INC.
By:
-----------------------------------------
Title: President
XXXXXX TRUST
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Trustee
THE XXXXXXX XXXXX GROUP, INC.
By:
-----------------------------------------
Name:
Title:
- 5 -
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
*THE XXXXXXX AND WOMEN'S HOSPITAL, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director, Corporate Sponsored
Research and Licensing
B.U.N.P.
By:
-----------------------------------------
Name:
Title:
XXXXXXX AND XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX PARTNERS L.P.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
DELAWARE CHARTER AND TRUST
XXXX X. XXXXXX XXX
By:
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Self Directed XXX
----------
* Except with respect to Section 5.1 of the Agreement, under which BWH has
no rights, liabilities or responsibilities.
- 6 -
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
SENTRON MEDICAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: General Counsel
LOMBARD ODIER & CIE
By: /s/ Xxxxxxxxx Xxxxx /s/ Xxxxx Plage
-----------------------------------------------
Name: Alexandre Xxxxx Xxxxx Plage
Title: Senior Vice President Assistant Vice
President
BANK XXXXXX XXXX & CO. LTD.
By:
-----------------------------------------
Name:
Title:
AETNA LIFE INSURANCE COMPANY
By:
-----------------------------------------
Name:
Title:
MYTHEN TREUHAND & VERWALTUNGS AG
By:
-----------------------------------------
Title:
BANK XXXXXXX & CO.
By:
-----------------------------------------
Name:
Title:
- 7 -
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
GZB BANK (SCHWEIZ) AG
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------------
Name:
Title:
--------------------------------------------
Xxxxxxxx Xxxxxx
CC/M NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name:
Title:
CC NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name:
Title:
CC/Q PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name:
Title:
DC 1998 NFA TRUST
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Trustee
BOSTON SCIENTIFIC CORPORATION
By:
-----------------------------------------
Name:
Title:
- 8 -
[Signature Page to Amendment No.2 to
Fourth Amended and Restated Stockholder's Agreement]
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Sorcel
--------------------------------------------
**Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
**Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
**Xxxxxx X. Xxxxx
--------------------------------------------
**L. Xxxxxx Xxxxx
----------
** Except with respect to Section 5 hereof, under which the signatory has no
rights, liabilities or responsibilities.
- 9 -
AMENDMENT NO. 3
TO
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This Amendment No. 3 dated July 31, 2003 (the "Amendment") to the Fourth
Amended and Restated Stockholders' Agreement dated May 22, 2001, as amended on
November 20, 2001 and May 12, 2003 (the "Agreement") by and among NitroMed,
Inc., a Delaware corporation (the "Corporation"), the stockholders of the
Corporation listed on SCHEDULE 1 thereto (the "Investors"), the individuals
listed on SCHEDULE 2 thereto and The Xxxxxxx and Women's Hospital, Inc., is
entered into by the Corporation and the undersigned Investors representing at
least 65% in voting power of the outstanding Series Preferred Shares. Except as
set forth below, the Agreement shall remain in full force and effect.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Agreement.
WHEREAS, the Corporation intends to issue and sell up to an additional
2,776,351 shares of Series E Convertible Preferred Stock, $.01 par value per
share, of the Corporation ("Series E Preferred Stock") to certain purchasers,
including certain Investors and new investors (the "New Investors") pursuant to
the Series E Convertible Preferred Stock Purchase Agreement dated May 22, 2001
by and between the Corporation and the Investors named on Schedule 1 attached
thereto, as amended on June 15, 2001 and August 1, 2003 (the "Purchase
Agreement"); and
WHEREAS, the Corporation and the undersigned Investors desire to amend the
Agreement such that the New Investors shall be made a party thereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT. Acting in accordance with Section 11 of the
Agreement, the Agreement is hereby amended as follows:
(a) SCHEDULE 1 of the Agreement is hereby amended and restated in its
entirety, as set forth on EXHIBIT A attached hereto, pursuant to which the New
Investors are added to Schedule 1 of the Agreement and each is thereby deemed an
"Investor" as such term is defined in the Agreement, subject to all of the
terms, conditions, benefits, rights, limitations and restrictions applicable to
Investors set forth therein.
(b) A new Section 20 shall be added to the Agreement which shall read as
follows:
SECTION 20. ADDITIONAL SERIES E INVESTORS. Any person or entity that,
on or after the date hereof, purchases Series E Preferred Shares pursuant
to the Series E Stock Purchase Agreement and becomes an "Investor"
thereunder may, with the prior written approval of the Corporation (but
without the need for approval by any other party to this Agreement), become
a party to this Agreement by executing and delivering a
counterpart signature page hereto, whereupon such person or entity shall be
deemed an "Investor" and "Series E Investor" for all purposes of this
Agreement.
2. The Agreement, as supplemented and modified by this Amendment, together
with the other writings referred to in the Agreement or delivered pursuant
thereto which form a part thereof, contains the entire agreement among the
parties with respect to the subject matter thereof and amends, restates and
supersedes all prior and contemporaneous arrangements or understandings with
respect thereto.
4. Upon the effectiveness of this Amendment, on and after the date hereof,
each reference in the Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference in the other documents
entered into in connection with the Agreement, shall mean and be a reference to
the Agreement, as amended hereby. Except as specifically amended above, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
5. This Amendment shall be governed by, and construed and enforced in
accordance with, the substantive laws of the State of Delaware without regard to
its principles of conflicts of laws.
6. This Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
[The remainder of this page has intentionally been left blank.]
- 2 -
IN WITNESS WHEREOF, The Corporation and each of the parties set forth on
the foregoing signature pages have caused this Amendment No. 3 to Fourth Amended
and Restated Stockholders' Agreement to be executed as of the date first above
written.
NITROMED, INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: CFO
HEALTHCARE VENTURES III, L.P.
By: HealthCare Partners III, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: General Partner
HEALTHCARE VENTURES IV, L. P.
By: HealthCare Partners IV, L. P.,
as General Partner
By: s/s Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: General Partner
HEALTHCARE VENTURES V, L. P.
By: HealthCare Partners V, L. P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: General Partner
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
HEALTHCARE VENTURES VI, L.P.
By: HealthCare Partners VI, L.P.,
as General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: General Partner
RHO MANAGEMENT TRUST II
By: Rho Management Company, Inc.,
as Investment Adviser
By: /s/ Xxxxxx Xxxx
----------------------------------------
Title: CEO
RHO VENTURES IV, L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Title: Managing Member
RHO VENTURES IV GmbH & CO.
BETEILIGUNGS KG
By: Rho Capital Partners Verwaltungs GmbH,
as General Partner
By: /s/ Xxxxxx Xxxx
----------------------------------------
Title: Managing Director
- 4 -
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
RHO VENTURES IV (QP), L.P.
By: Rho Management Ventures IV, L.L.C.,
as General Partner
By: /s/ Xxxxxx Xxxx
--------------------------------------
Title: Managing Member
ATLAS VENTURE FUND II, L.P.
By: Atlas Venture Associates II,
L.P., as General Partner
By:
--------------------------------------
Title: General Partner
M & G EQUITIES, INC.
By:
--------------------------------------
Title: President
XXXXXX TRUST
By:
---------------------------------------
Title:
THE XXXXXXX SACHS GROUP, INC.
By:
---------------------------------------
Name:
Title:
- 5 -
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
*THE XXXXXXX AND WOMEN'S HOSPITAL, INC.
By:
---------------------------------------
Name:
Title:
B.U.N.P.
By:
---------------------------------------
Name:
Title:
XXXXXXX AND XXXXXXX DEVELOPMENT
CORPORATION
By:
---------------------------------------
Name:
Title:
XXXXXX PARTNERS L.P.
By:
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Partner
DELAWARE CHARTER AND TRUST
XXXX X. XXXXXX XXX
By:
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Self Directed XXX
----------
* Except with respect to Sections 2.2, 2.4 through 2.14, 3.1 through 3.4,
3.6 and 5.1 through 5.5 of the Agreement, under which BWH has no rights,
liabilities or responsibilities.
- 6 -
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
SENTRON MEDICAL, INC.
By:
---------------------------------------
Name:
Title:
LOMBARD ODIER & CIE
By:
---------------------------------------
Name:
Title:
BANK XXXXXX XXXX & CO. LTD.
By:
---------------------------------------
Name:
Title:
AETNA LIFE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
MYTHEN TREUHAND & VERWALTUNGS AG
By:
---------------------------------------
Title:
BANK XXXXXXX & CO.
By:
---------------------------------------
Name:
Title:
- 7 -
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
GZB BANK (SCHWEIZ) AG
By:
---------------------------------------
Name:
Title:
------------------------------------------
Xxxxxxxx Xxxxxx
CC/M NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name:
Title:
CC NITROMED HOLDINGS, L.P.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name:
Title:
CC/Q PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name:
Title:
DC 1998 NFA TRUST
By:
---------------------------------------
Name: Xxx Xxxxx
Title: Trustee
- 8 -
[Signature Page to Amendment No. 3 to
Fourth Amended and Restated Stockholder's Agreement]
------------------------------------
Xxxxx X. Xxxxx
------------------------------------
Xxxxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx
------------------------------------
**Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
**Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
------------------------------------
**Xxxxxx X. Xxxxx
------------------------------------
**L. Xxxxxx Xxxxx
----------
** Except with respect to Sections 2, 3.1 through 3.4, 3.6 and 5 hereof,
under which the signatory has no rights, liabilities or responsibilities.
- 9 -
EXHIBIT A
SCHEDULE 1
HealthCare Ventures III, L.P.
HealthCare Ventures IV, L.P.
HealthCare Ventures V, L.P.
HealthCare Ventures VI, L.P.
00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Atlas Venture Fund II, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx-Xxxxxxxx Xxxxxxx
Rho Management Trust II
Rho Ventures IV, L.P.
Rho Ventures IV GmbH & Co. Beteiligungs KG
Rho Ventures IV (QP), L.P.
c/o Rho Management Co., Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Xxxxxx Trust
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X'Xxxxxxxxx
Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
M&G Equities, Inc.
c/o American Stock Transfer & Trust Co.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
The Xxxxxxx and
Women's Hospital, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Yajnick, Ph.X.
Xxxxxxx & Xxxxxxx Development Corporation
Xxx Xxxxxxx & Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Aetna Life Insurance Company
000 Xxxxxxxxxx Xxxxxx, XX00
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
IG6U Private Equity Group
The Xxxxxxx Sachs Group, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B.U.N.P
c/o Boston University
Community Technology Fund
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx or Xxxxxxx Xxxxxxx
Xxxxxx Partners L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Delaware Charter and Trust
Xxxx X. Xxxxxx XXX
c/x Xxxxxx Capital Management
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Sentron Medical, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Group Director, Venture Projects
Lombard Odier & Cie
Xxxxxxxx.00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxxxx Xxxxx
- 11 -
Bank Xxxxxx Xxxx & Co. Ltd.
Xxxxxxxxxx. 00
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxx Xxxxxx
Mythen Treuhand & Verwaltungs AG
Xxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
Attn: Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
c/o The Xxxxxxx Sachs Group
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Bank Xxxxxxx & Co.
Xxxxxxxxxxxxxxxxxx 00
XX-0000 Xxxxx
Xxxxxxxxxxx
GZB Bank (Schweiz) XX
Xxxxxxxx 00
Xxxxxx, Xx-0000
Xxxxxxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx 00
Xxxxxx, 0000
Xxxxxxxxxxx
CC/M NitroMed Holdings, L.P.
CC NitroMed Holdings, L.P.
CC/Q Partners, L.P.
Care Capital Investments II, L.P.
c/o Care Capital LLC
Princeton Overlook One
000 Xxxxxxxx Xxxxxx & Xxxxx 0
Xxxxxxxxx, XX 00000
DC 1998 NFA Trust
c/o IFX Corporation
Venture American Securities
000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
- 12 -
Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
- 13 -
