AMENDMENT NO. 3 TO SHAREHOLDER'S AGREEMENT
AMENDMENT NO. 3 (the "Amendment"), dated as of May 19, 1997, to the
Shareholder's Agreement, dated as of November 12, 1996, as amended by
Amendment No. 1 dated as of December 16, 1996, and Amendment No. 2 dated as
of February 28, 1997 (the "Agreement"), between Gensia Sicor Inc. (f/k/a
Gensia, Inc.), a corporation organized under the laws of Delaware (the
"Company"), and Rakepoll Finance N.V., a corporation organized under the laws
of the Netherlands Antilles ("Rakepoll Finance").
W I T N E S S E T H :
WHEREAS, the Company and Rakepoll Finance are parties to the
Agreement; and
WHEREAS, in connection with the investment in the Company by Health
Care Capital Partners L.P. ("HCCP"), pursuant to the certain Securities
Purchase Agreement, dated as of May 1, 1997, between HCCP and the Company
(the "HCCP Agreement") the Company and Rakepoll Finance wish to amend the
Agreement, among other things (i) to extend the lock-up period applicable to
Rakepoll Finance to parallel the lock-up period applicable to HCCP; (ii) to
extend the period before which Rakepoll Finance may exercise its registration
rights under the Agreement to parallel the analogous period applicable to
HCCP; (iii) to modify the registration rights of Rakepoll Finance to
correspond to registration rights afforded by the Company to HCCP in the HCCP
Registration Rights Agreement, dated as of May 1, 1997, and (iv) to provide
for certain limitations to the incidental registration rights of Rakepoll
Finance, in each case as more fully set forth herein and subject to the terms
and conditions hereof; and
WHEREAS, Section 8.2(a) of the Agreement provides that the
Agreement may be amended in a writing signed by the Company and Rakepoll
Finance;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions; References. Capitalized terms used in this
Amendment but not defined herein shall have the meanings ascribed to them in
the Agreement.
2. Amendment of Section 1.1(o). Section 1.1(o) of the Agreement
is hereby amended by deleting such section in its entirety and substituting
in lieu thereof the following:
'"Lock-Up Period" means the period of time commencing at the
Closing Date and terminating on the date which is 18 months after
the Closing Date.'
3. Amendment of Section 4.7. Section 4.7 of the Agreement is
hereby amended by inserting immediately before the "." at the end thereof the
following:
", or (iii) pursuant to, or upon conversion or exercise of
securities issued pursuant to, the Securities Purchase Agreement,
dated May 1, 1997, between Health Care Capital Partners ("HCCP")
and the Company".
4. Amendment of Section 6.1(a). Section 6.1(a) of the Agreement
is hereby amended by deleting from the first sentence thereof the words
"first anniversary of the Closing Date" appearing in the first and second
lines thereof and substituting in lieu thereof the words "termination of the
Lock-Up Period".
5. Amendment of Section 6.2. Section 6.2 of the Agreement is
hereby amended by deleting in its entirety the first sentence thereof and
substituting in lieu thereof the following:
"Subject to Section 6.7, if at any time after the termination of
the Lock-Up Period the Company proposes to file a registration
statement under the Securities Act (other than a registration
statement on a Form S-4 or S-8 or any successor or similar forms,
or a registration effected pursuant to Section 2.1 of the
Registration Rights Agreement, dated as of May 1, 1997, between
HCCP and the Company (the "HCCP Registration Rights Agreement")
unless the Selling Holders (as defined in the HCCP Registration
Rights Agreement) holding at least a majority of the Registrable
Securities (as defined in the HCCP Registration Rights Agreement)
included in such registration shall have provided their written
consent to the inclusion of such Registrable Securities (as defined
in the HCCP Registration Rights Agreement) in such registration) on
any form that would permit the registration of the Registrable
Securities, whether or not such filing is to be on its behalf, each
such time the Company shall give to each Holder prompt written
notice of such determination setting forth the date on which the
Company proposes to file such registration statement, which date
shall be no earlier than twenty-one days from the date of such
notice, and advising each Holder of its right under this Section
6.2 to have Registrable Securities included in such registration".
5. Full Force and Effect. Except as modified, amended or
supplemented above, all rights, terms and conditions of the Agreement shall
remain in full force and effect.
6. Conditions to Effectiveness of this Amendment. This Amendment
shall become effective when (a) HCCP and the Company shall have executed and
delivered all documents necessary to effect the investment in the Company by
HCCP, including, without limitation, the HCCP Agreement; (b) the Company
shall have received the Purchase Price (as defined in the HCCP Agreement);
(c) the Company shall have issued to HCCP the Notes and Warrants (each as
defined in the HCCP Agreement) in accordance with the terms of the HCCP
Agreement, and (d) it shall have been executed and delivered by each of the
Company and Rakepoll Finance.
7. Governing Law. This Amendment shall be governed by and
construed under the laws of the State of New York (irrespective of its choice
of law principles).
8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date first written above.
GENSIA SICOR INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President
RAKEPOLL FINANCE N.V.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chairman of the Board
