AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
EXHIBIT 10.20
AMENDMENT NO. 2 TO
STOCK PURCHASE AGREEMENT
AND
ESCROW AGREEMENT
STOCK PURCHASE AGREEMENT
AND
ESCROW AGREEMENT
This Amendment No. 2 (the “Amendment”) to (i) the Stock Purchase Agreement, dated as
of September 25, 2009 (as amended to date, the “Purchase Agreement”), by and among Anthera
Pharmaceuticals, Inc., a Delaware corporation (the “Company”) and the investors listed on
Exhibit A thereto (the “Investors”), and (ii) the Escrow Agreement, dated as of
September 25, 2009 (as amended to date, the “Escrow Agreement”), by and among the Company,
the Investors and Fremont Bank (the “Escrow Agent”), each as amended by that certain
Amendment No. 1 to Stock Purchase Agreement and Escrow Agreement dated as of November 3, 2009, is
made as of December 11, 2009 by and among the Company, the Investors and the Escrow Agent.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Purchase Agreement.
RECITALS
WHEREAS, the Company desires to sell, and certain of the Investors, who are listed on Schedule
I hereto (the “Participating Investors”), desire to purchase, convertible promissory notes
of the Company (the “Notes”), in the aggregate principal amount of $3,400,000 (the
“Escrow Release Amount”);
WHEREAS, the Participating Investors collectively desire to release the Escrow Release Amount,
in the proportions set forth on Schedule I hereto, from the Escrowed Funds (as such term is defined
in the Escrow Agreement), pursuant to the terms of the Escrow Agreement, as amended by this
Agreement, to the Company for the purchase of the Notes;
WHEREAS, the Company, the Investors and, in the case of the Escrow Agreement, the Escrow Agent
desire to amend the Purchase Agreement and the Escrow Agreement to allow for the release to the
Company of the Escrow Release Amount under the terms of the Escrow Agreement, as amended by this
Amendment, and to make certain other changes;
WHEREAS, Section 7.9 of the Purchase Agreement provides that the Purchase Agreement may be
amended with the written consent of the Company and the Investors; and
WHEREAS, Section 2.1 of the Escrow Agreement provides that the Escrow Agreement may be amended
with the written consent of the Company, the Investors and the Escrow Agent.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereto agree as follows:
AGREEMENT
1. Section 1.1 of the Purchase Agreement is hereby amended and restated in its entirety as
follows:
“1.1 Authorization and Escrow. The Company will, prior to the Closing
(as defined below), authorize the sale and issuance to the Investors of a
number of shares of the Company’s Common Stock (the “Shares”), par value
$0.001 per share, equal to $17,100,000 divided by the Purchase Price (as
defined below). On or prior to September 28, 2009, each Investor shall
deposit with Fremont Bank (the “Escrow Agent”), pursuant to the Escrow
Agreement attached as Exhibit B (as the same may be amended from
time to time, the “Escrow Agreement”), the amount set forth opposite such
Investor’s name on the Schedule of Investors in the column entitled “Amount
Deposited in Escrow,” to be held in escrow (and not as the Company’s
property) for release at the Closing (or if earlier, as otherwise provided
in the Escrow Agreement); provided, however, that Shionogi &
Co., Ltd. (“Shionogi”) shall deposit such amount with the Escrow
Agent no later than two (2) business days following the execution of
Amendment No. 1 to this Agreement by each of the parties thereto. The
parties agree and acknowledge that upon the execution of Amendment No. 2 to
this Agreement, the amount set forth opposite each Investor’s name on the
Schedule of Investors in the column entitled “Escrow Release Amount” shall
be released to the Company pursuant to the terms of the Escrow Agreement as
consideration for the purchase of certain convertible promissory notes.”
2. Section 1.3 of the Purchase Agreement is hereby amended and restated in its entirety as
follows:
“1.3 Sale and Issuance of Shares. Subject to the terms and conditions
of this Agreement, at the Closing, each Investor agrees, severally and not
jointly, to purchase, and the Company agrees to sell and issue to each
Investor, shares of Common Stock (the “Shares”) for the cash amount set
forth opposite such Investor’s name on the Schedule of Investors in the
column entitled “Aggregate Purchase Price.” The purchase price per Share
shall be equal to the price per share at which shares of the Company’s
Common Stock are sold to the public in the IPO minus any per-share
underwriting discounts, commissions or fees (the “Purchase Price”). The
Company’s agreement with each Investor is a separate agreement, and the sale
and issuance of the Shares to each Investor is a separate sale and
issuance.”
2
3. Section 7.2 of the Purchase Agreement is hereby amended and restated in its entirety as
follows:
“7.2 Termination. This Agreement may be terminated at any time prior
to the Closing by the mutual written consent of the Company and the
Investors; provided, however, that if the closing of the IPO does not occur
prior to February 28, 2010, this Agreement shall terminate automatically and
be of no further force and effect.”
4. Exhibit A to the Purchase Agreement is hereby amended and restated in its entirety to read
as set forth on Exhibit A-1 hereto.
5. The first recital of the Escrow Agreement is hereby amended and restated in its entirety as
follows:
“WHEREAS, the Purchasers will be purchasing from the Company, severally
and not jointly with the other Purchasers, with the Purchasers’ funds
(hereinafter the “Subscription Amounts”), in the aggregate,
$17,100,000 of the Company’s Common Stock (the “Securities”) at the
Closing as set forth in the Stock Purchase Agreement between the Purchasers
and the Company (the “Purchase Agreement”);”
6. The third recital of the Escrow Agreement is hereby amended and restated in its entirety as
follows:
“WHEREAS, the Company and the Purchasers have requested that the Escrow
Agent hold the Subscription Amounts in escrow (such amounts, less any funds
released pursuant to the terms of this Agreement, the “Escrowed
Funds”) until (A) (i) the Company shall have closed a firmly
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
Common Stock for the account of the Company in which the aggregate net
proceeds to the Company (after underwriting discounts, commissions and fees)
are at least $50,000,000 (the “IPO”) and (ii) the Escrow Agent has
received the Escrow Release Notice (as defined below); (B) the Escrow Agent
has received the Investor Escrow Release Notice (as defined below); or (C)
the Company and each of the Investors otherwise agree in writing to release
all or a portion of the Escrowed Funds as provided herein.”
7. Section 1.2 of the Escrow Agreement is hereby amended and restated in its entirety as
follows:
“1.2 Release of Escrow Funds.
3
(a) Upon (i) the closing of the IPO and (ii) the Escrow Agent’s receipt
of the escrow release notice attached hereto as Exhibit B (the
“Escrow Release Notice”) executed by the Company’s chief executive
officer and chief financial officer, the Escrow Agent will, after confirming
the closing of the IPO with legal counsel for the underwriters in such IPO,
release the Escrowed Funds in accordance with the terms of the Escrow
Release Notice. Any portion of the Escrowed Funds representing the cash
value of fractional shares of the Securities shall be disbursed to the
Purchasers, based on each Purchaser’s Net Subscription Amount as set forth
in Exhibit A, upon the release of the Escrowed Funds. All
calculations of a Purchaser’s pro rata share of any fractional share amounts
shall be performed by the Company and, subject to review and approval by
such Purchaser, provided to the Escrow Agent. A representative of the
Escrow Agent shall be made available to participate in a conference call on
the date of closing of the IPO in order to confirm the closing of the IPO.
(b) Alternatively, upon the Escrow Agent’s receipt of the escrow
release notice attached hereto as Exhibit C (the “Investor
Escrow Release Notice”) executed by the Company and each of the
Purchasers (other than any Purchaser who has previously requested the return
of such Purchaser’s funds in accordance with Section 1.3 hereof), the Escrow
Agent will release the Escrowed Funds in accordance with the terms of the
Investor Escrow Release Notice. Any portion of the Escrowed Funds
representing the cash value of fractional shares of the Securities shall be
disbursed to the Purchasers, based on each Purchaser’s Net Subscription
Amount as set forth in Exhibit A, upon the release of the Escrowed
Funds. All calculations of a Purchaser’s pro rata share of any fractional
share amounts shall be performed by the Company and, subject to review and
approval by such Purchaser, provided to the Escrow Agent.
(c) Upon (i) the execution of Amendment No. 2 to this Agreement, and
(ii) the Escrow Agent’s receipt of the escrow release notice attached hereto
as Exhibit D (the “Advance Escrow Release Notice”) executed
by the Company and each of the Purchasers releasing funds pursuant thereto,
the Escrow Agent will release that portion of the Escrowed Funds set forth
on Exhibit A in the column entitled “Escrow Release Amount” in
accordance with the terms of the Advance Escrow Release Notice.”
8. Section 1.3 of the Escrow Agreement is hereby amended and restated in its entirety as
follows:
“1.3 Return of Escrowed Funds. In the event that the Escrowed Funds
have not been released pursuant to Section 1.2(a) or 1.2(b) above on or
prior to February 28, 2010 (“Escrow Return Date”), then, at the request of any Purchaser
in writing, the Escrow Agent shall return such
4
Purchaser’s Subscription
Amount from the Escrowed Funds to such requesting Purchaser. The Escrow
Return Date for each Purchaser may be extended by mutual written consent of
such Purchaser and the Company.”
9. Exhibit A to the Escrow Agreement is hereby amended and restated in its entirety to read as
set forth on Exhibit A-2 hereto.
10. A new Exhibit D to the Escrow Agreement in the form of Exhibit B hereto is hereby
added to the Escrow Agreement.
11. This Amendment shall be governed by and construed under the laws of the State of
California in all respects as such laws are applied to agreements among California residents
entered into and performed entirely within California, without giving effect to conflict of law
principles thereof.
12. This Amendment may be executed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
13. Except as specifically amended hereby, each of the Purchase Agreement and the Escrow
Agreement shall remain in full force and effect.
(Signature Pages Follow)
5
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| COMPANY: ANTHERA PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| President and Chief Executive Officer | ||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: | ||||||
| VANTAGEPOINT VENTURE | ||||||
| PARTNERS IV (Q), L.P. | ||||||
| VANTAGEPOINT VENTURE | ||||||
| PARTNERS IV, L.P. | ||||||
| VANTAGEPOINT VENTURE | ||||||
| PARTNERS IV PRINCIPALS FUND, L.P. | ||||||
| By: | VantagePoint Venture Associates IV, | |||||
| L.L.C., its General Partner | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxx | |||||
| Title: | Managing Member | |||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: | ||||||
| SOFINNOVA VENTURE PARTNERS VI, L.P., | ||||||
| as nominee for | ||||||
| SOFINNOVA VENTURE PARTNERS VI, L.P. | ||||||
| SOFINNOVA VENTURE PARTNERS VI GMBH CO. K.G. | ||||||
| SOFINNOVA VENTURE AFFILIATES VI, L.P. | ||||||
| By: Sofinnova Management VI, LLC | ||||||
| its General Partner | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | Managing Member | |||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: | ||||||
| A. M. XXXXXX LIFE SCIENCE | ||||||
| VENTURES III, L.P. | ||||||
| By: | /s/ Ford S. Worthy
|
|||||
| Name: | Ford S. Worthy | |||||
| Title: | Partner & CFO | |||||
| PV III CEO FUND, L.P. | ||||||
| By: | /s/ Ford S. Worthy
|
|||||
| Name: | Ford S. Worthy | |||||
| Title: | Partner & CFO | |||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: | ||||||
| CAXTON ADVANTAGE LIFE | ||||||
| SCIENCES FUND, L.P. | ||||||
| By: Caxton Advantage Venture Partners, | ||||||
| L.P., Its General Partner | ||||||
| By: Advantage Life Science Partners, LLC, | ||||||
| its Managing Partner | ||||||
| By: | /s/ A. Xxxxxx Xxxxxx
|
|||||
| Name: | A. Xxxxxx Xxxxxx | |||||
| Title: | Member | |||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: | ||||
| HBM BIOCAPITAL | ||||
| HBM BioCapital (EUR) L.P. | ||||
| By: HBM BioCapital Ltd. | ||||
| Its: General Partner | ||||
| /s/ Xxxx Xxxxxx
|
||||
| By: Xxxx Xxxxxx | ||||
| Its: Chairman & Managing Director | ||||
| HBM BioCapital (USD) L.P. | ||||
| By: HBM BioCapital Ltd. | ||||
| Its: General Partner | ||||
| /s/ Xxxx Xxxxxx
|
||||
| By: Xxxx Xxxxxx | ||||
| Its: Chairman & Managing Director |
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| INVESTORS: SHIONOGI & CO., LTD. |
||||
| By: | /s/ Y. Mine | |||
| Name: | ||||
| Title: | ||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 as of the date first
written above.
| ESCROW AGENT: FREMONT BANK |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |||
| Xxxxxx Xxxxxxxxxx President |
||||
SIGNATURE PAGE TO ANTHERA PHARMACEUTICALS, INC.
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT AND ESCROW AGREEMENT
SCHEDULE I
| Amount to be Released | |||||
| Purchaser | from Escrow | ||||
VantagePoint Venture Partners IV (Q), L.P. |
$ | 1,407,712.15 | |||
VantagePoint Venture Partners IV, L.P. |
$ | 140,926.59 | |||
VantagePoint Venture Partners IV Principals Fund, L.P. |
$ | 5,127.43 | |||
Sofinnova Venture Partners VI, L.P. |
$ | 1,003,365.50 | |||
A. M. Xxxxxx Life Science Ventures III, L.P. |
$ | 246,690.05 | |||
PV III CEO Fund, L.P. |
$ | 15,328.06 | |||
Caxton Advantage Life Sciences Fund, L.P. |
$ | 290,425.11 | |||
HBM BioCapital (EUR) L.P. |
$ | 246,861.34 | |||
HBM BioCapital (USD) L.P. |
$ | 43,563.77 | |||
TOTAL |
$ | 3,400,000.00 | |||
EXHIBIT A-1
SCHEDULE OF INVESTORS
| Amount | ||||||||||||
| Deposited in | Escrow Release | Aggregate | ||||||||||
| Investor | Escrow | Amount | Purchase Price | |||||||||
VantagePoint Venture Partners IV (Q), L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 8,280,659.71 | $ | 1,407,712.15 | $ | 6,872,947.56 | ||||||
Xxx Xxxxx, XX 00000 |
||||||||||||
VantagePoint Venture Partners IV, L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 828,979.95 | $ | 140,926.59 | $ | 688,053.36 | ||||||
Xxx Xxxxx, XX 00000 |
||||||||||||
VantagePoint Venture Partners IV Principals
Fund, L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 30,161.34 | $ | 5,127.43 | $ | 25,033.91 | ||||||
Xxx Xxxxx, XX 00000 |
||||||||||||
Sofinnova Venture Partners VI, L.P. 000 Xxxxx Xxxxxx, 00xx Xxxxx |
$ | 5,902,150.00 | $ | 1,003,365.50 | $ | 4,898,784.50 | ||||||
Xxx Xxxxxxxxx, XX 00000 |
||||||||||||
A. M. Xxxxxx Life Science Ventures III, L.P. X.X. Xxx 000000 |
$ | 1,451,117.95 | $ | 246,690.05 | $ | 1,204,427.90 | ||||||
Research Xxxxxxxx Xxxx, XX 00000 |
||||||||||||
PV III CEO Fund, L.P. X.X. Xxx 000000 |
$ | 90,165.05 | $ | 15,328.06 | $ | 74,836.99 | ||||||
Research Xxxxxxxx Xxxx, XX 00000 |
||||||||||||
Caxton Advantage Life Sciences Fund, L.P. 000 Xxxx Xxxxxx |
$ | 1,708,383.00 | $ | 290,425.11 | $ | 1,417,957.89 | ||||||
Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx |
||||||||||||
HBM BioCapital (EUR) L.P. Xxxx Xxxxxx |
$ | 1,452,125.55 | $ | 246,861.34 | $ | 1,205,264.21 | ||||||
HBM BioCapital Ltd. Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 2454 West Bay Road Grand Cayman Cayman Islands |
||||||||||||
HBM BioCapital (USD) L.P. Xxxx Xxxxxx |
$ | 256,257.45 | $ | 43,563.77 | $ | 212,693.68 | ||||||
HBM BioCapital Ltd. Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 2454 West Bay Road Grand Cayman Cayman Islands |
||||||||||||
Shionogi & Co., Ltd. 1-8 Doshomachi 3-chome |
$ | 500,000.00 | — | $ | 500,000.00 | |||||||
Chuo-ku, Osaka Japan |
||||||||||||
TOTAL |
$ | 20,500,000.00 | $ | 3,400,000.00 | $ | 17,100,000.00 | ||||||
EXHIBIT A-2
SCHEDULE OF PURCHASERS
| Subscription | Escrow Release |
Net Subscription |
Subscription | |||||||||||||
| Purchaser | Amount | Amount | Amount | % | ||||||||||||
VantagePoint Venture Partners IV (Q), L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 8,280,659.71 | $ | 1,407,712.15 | $ | 6,872,947.56 | 40.19 | % | ||||||||
Xxx Xxxxx, XX 00000 |
||||||||||||||||
VantagePoint Venture Partners IV, L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 828,979.95 | $ | 140,926.59 | $ | 688,053.36 | 4.02 | % | ||||||||
Xxx Xxxxx, XX 00000 |
||||||||||||||||
VantagePoint Venture Partners IV
Principals Fund, L.P. 0000 Xxxxxxx Xxxxx, Xxxxx 000 |
$ | 30,161.34 | $ | 5,127.43 | $ | 25,033.91 | 0.15 | % | ||||||||
Xxx Xxxxx, XX 00000 |
||||||||||||||||
Sofinnova Venture Partners VI, L.P. 000 Xxxxx Xxxxxx, 00xx Xxxxx |
$ | 5,902,150.00 | $ | 1,003,365.50 | $ | 4,898,784.50 | 28.65 | % | ||||||||
Xxx Xxxxxxxxx, XX 00000 |
||||||||||||||||
A. M. Xxxxxx Life Science Ventures III,
L.P. X.X. Xxx 000000 |
$ | 1,451,117.95 | $ | 246,690.05 | $ | 1,204,427.90 | 7.04 | % | ||||||||
Research Xxxxxxxx Xxxx, XX 00000 |
||||||||||||||||
PV III CEO Fund, L.P. X.X. Xxx 000000 |
$ | 90,165.05 | $ | 15,328.06 | $ | 74,836.99 | 0.44 | % | ||||||||
Research Xxxxxxxx Xxxx, XX 00000 |
||||||||||||||||
Caxton Advantage Life Sciences Fund, L.P. 000 Xxxx Xxxxxx |
$ | 1,708,383.00 | $ | 290,425.11 | $ | 1,417,957.89 | 8.29 | % | ||||||||
Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxxx Email: xxxxxxx@xxxxxxxxxxxxxxx.xxx |
||||||||||||||||
HBM BioCapital (EUR) L.P. Xxxx Xxxxxx |
$ | 1,452,125.55 | $ | 246,861.34 | $ | 1,205,264.21 | 7.05 | % | ||||||||
HBM BioCapital Ltd. Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 2454 West Bay Road Grand Cayman Cayman Islands |
||||||||||||||||
HBM BioCapital (USD) L.P. Xxxx Xxxxxx |
$ | 256,257.45 | $ | 43,563.77 | $ | 212,693.68 | 1.24 | % | ||||||||
HBM BioCapital Ltd. Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 2454 West Bay Road Grand Cayman Cayman Islands |
||||||||||||||||
Shionogi & Co., Ltd. 1-8 Doshomachi 3-chome |
$ | 500,000.00 | — | $ | 500,000.00 | 2.93 | % | |||||||||
Chuo-ku, Osaka Japan |
||||||||||||||||
TOTAL |
$ | 20,500,000.00 | $ | 3,400,000.00 | $ | 17,100,000.00 | 100.00 | % | ||||||||
EXHIBIT B
EXHIBIT D
ADVANCE ESCROW RELEASE NOTICE
Reference is hereby made to the Escrow Agreement dated as of September 25, 2009, by and
among Anthera Pharmaceuticals, Inc., a Delaware corporation, the Purchasers who are signatories
thereto and Fremont Bank, as Escrow Agent (as amended to date, the “Escrow Agreement”).
Capitalized terms used herein and not defined shall have the meaning ascribed to such terms in the
Escrow Agreement. Pursuant to the Escrow Agreement, the Company and the undersigned Purchasers
hereby authorize the release by the Escrow Agent of a portion of the Escrowed Funds in the
aggregate amount of $[ ], as more fully set forth on the Schedule A attached to this Release
Notice, to the Company pursuant to the wire instructions provided by the Company to the Escrow
Agent. This Release Notice shall not be effective until executed by the Company and all Purchasers
who have contributed to the Escrowed Funds to be released.
This Release Notice may be signed in one or more counterparts, each of which shall be deemed
an original.
IN WITNESS WHEREOF, the undersigned have caused this Release Notice to be duly executed and
delivered as of this day of , 20 .
| ANTHER A PHARMACEUTICALS, INC. | VANTAGEPOINT VENTURE PARTNERS IV (Q), L.P. | |||||||
| VANTAGEPOINT VENTURE PARTNERS IV, L.P. | ||||||||
By: |
VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, L.P. |
|||||||
| Xxxx X. Xxxxx | ||||||||
| President and Chief Executive Officer | ||||||||
| By: | VantagePoint Venture Associates IV, | |||||||
| L.L.C., its General Partner | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | Managing Member | |||||||
| SOFINNOVA VENTURE PARTNERS VI, L.P., | A. M. XXXXXX LIFE SCIENCE VENTURES III, L.P. | |||||||
as nominee for
|
By: | |||||||
SOFINNOVA VENTURE PARTNERS VI, L.P.
|
Name: | |||||||
SOFINNOVA VENTURE PARTNERS VI GMBH CO. K.G.
|
Title: | |||||||
SOFINNOVA VENTURE AFFILIATES VI, L.P.
|
||||||||
| PV III CEO FUND, L.P. | ||||||||
By: Sofinnova Management VI, LLC |
||||||||
its General Partner
|
By: | |||||||
| Name: | ||||||||
By:
|
Title: | |||||||
Title: Managing Member |
||||||||
| CAXTON ADVANTAGE LIFE SCIENCES FUND, L.P. | HBM BIOCAPITAL | |||||||
| HBM BioCapital (EUR) L.P. | ||||||||
| By: Caxton Advantage Venture Partners, L.P., | By: HBM BioCapital Ltd. | |||||||
| Its General Partner | Its: General Partner | |||||||
| By: Advantage Life Science Partners, LLC, | By: Xxxx Xxxxxx | |||||||
| its Managing Partner | Its: Chairman & Managing Director | |||||||
| By: | HBM BioCapital (USD) L.P. | |||||||
| Name: Xxxxxx Xxxxxx | By: HBM BioCapital Ltd. | |||||||
| Title: Member | Its: General Partner | |||||||
| By: Xxxx Xxxxxx | ||||||||
| Its: Chairman & Managing Director | ||||||||
| SHIONOGI & CO., LTD. | ||||
By: |
||||
Name:
|
||||
Title:
|
||||
SCHEDULE A
| Amount to be Released | ||||
| Purchaser | from Escrow | |||
TOTAL |
$ | [ ] | ||
