EXHIBIT 4.7
EXECUTION COPY
WAIVER AGREEMENT AND SECOND
AMENDMENT TO THE
SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
THIS WAIVER AGREEMENT AND SECOND
AMENDMENT (the “ Waiver and Amendment ”) TO THE
SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT dated as
of August 4, 2004, as amended (the “
Stockholders’ Agreement ”), is entered into as
of February 14, 2006 by and among Pharmasset, Inc., a Delaware
corporation (the “ Company ”), and the
undersigned holders of the Company’s capital stock
(collectively, the “ Stockholders ”).
Capitalized terms used but not otherwise defined in this Waiver and
Amendment shall have the meanings set forth in the
Stockholders’ Agreement.
RECITALS
WHEREAS, Dr. Raymond F.
Schinazi (“ Dr. Schinazi ”) has requested that
the Company record the transfer of 2,000,000 shares of the
Company’s Common Stock, par value $0.001 (the “
Transfer Shares ”) from Dr. Schinazi as follows:
(i) 1,000,000 shares to RFS Partners, L.P., a Georgia limited
partnership (the “ Partnership ”), and
(ii) 1,000,000 shares to Raymond F. Schinazi 2005 Qualified
Annuity Trust, a Georgia trust (the “ Trust
”);
WHEREAS, the above described
transfers of the Transfer Shares (the “ Schinazi
Transfers ”) may not meet all the conditions for an
exception to the restrictions on transfer provided in
Section 5(b) of the Stockholders’ Agreement;
and
WHEREAS, the Stockholders hereby
desire to grant a waiver of their right of first refusal and right
of co-sale pursuant to Sections 5.2 and 5.3 of the
Stockholders’ Agreement with respect to the Schinazi
Transfers;
WHEREAS, the Company and the
Stockholders desire to amend Sections 1.1, 4.1, 5.2 and 7.1 of the
Stockholders’ Agreement;
NOW, THEREFORE, in consideration of
the mutual promises and covenants hereinafter set forth, the
receipt, sufficiency and adequacy of which are hereby acknowledged,
the parties hereto agree to amend the Stockholders’ Agreement
as follows:
1.1 Waiver.
(a) Solely with respect to the
Schinazi Transfers, each of the undersigned hereby waives its
respective rights under Sections 5.2 and 5.3 of the
Stockholders’ Agreement, including any right to notice;
provided that the Partnership and the Trust each agrees in
writing to be bound by the obligations of the Stockholders’
Agreement pursuant to the Joinder Agreement between the Company and
the Partnership and the Joinder Agreement between the Company and
the Trust, respectively, each to be entered into concurrently as of
the Effective Date of this Waiver and Amendment (collectively, the
“ Joinder Agreements ”).
W AIVER A GREEMENT AND S ECOND A MENDMENT TO THE
S ECOND A MENDED AND R ESTATED S TOCKHOLDERS ’ A GREEMENT
(b) Solely with respect to the
Transfer Shares, each of the undersigned hereby waives the
conditions to transfer of the rights to participate in
registrations granted to Stockholders other than Investors under
Section 2.2 of the Stockholders’ Agreement as they may
be applicable to the Trust and the Partnership and agree and
acknowledge that the Trust and the Partnership shall have the same
rights to participate in registrations granted to the other
Stockholders under Sections 2.2 and 2.9, provided that the
Partnership and the Trust each agrees in writing to be bound by the
obligations of the Stockholders’ Agreement pursuant to the
Joinder Agreements.
1.2 Amendments.
(a) The Stockholders’
Agreement is hereby amended by inserting the following definition
in Section 1.1 immediately following the definition of
“Sale of the Company”:
“ Schinazi Transferees
” shall mean RFS Partners, L.P., a Georgia limited
partnership, and Raymond F. Schinazi 2005 Qualified Annuity Trust,
a Georgia trust.
(b) The Stockholders’
Agreement is hereby amended by deleting paragraph (a) of
Section 4.1 and replacing it in its entirety with the
following:
(a) “In the event the Company
desires to issue any New Shares, it shall first deliver to each
Investor, Dr. Raymond Schinazi and the Schinazi Transferees
(each such Person being referred to in this Section 4 as a
“Buyer”) a written notice (the “Notice of
Proposed Issuance”) specifying the type and total number of
such New Shares which the Company then desires to issue (the
“Offered New Shares”), all of the terms, including the
price, upon which the Company proposes to issue the Offered New
Shares, and stating that the Buyers shall have the right to
purchase the Offered New Shares in the manner specified in this
Section 4.1 at the price and in accordance with the terms and
provisions specified in such Notice of Proposed
Issuance.”
(c) The Stockholders’
Agreement is hereby amended by deleting paragraph (d) of
Section 4.1 in its entirety.
(d) The Stockholders’
Agreement is hereby amended by changing the reference to paragraphs
(a)-(d) in paragraph (e) in Section 4.1 to
“paragraphs (a)-(c)”.
(e) The Stockholders’
Agreement is hereby amended by changing the designation of
paragraph (e) in Section 4.1 to “(d)” and by
changing the designation of paragraph (f) in Section 4.1
to “(e)”.
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W AIVER A GREEMENT AND S ECOND A MENDMENT TO THE
S ECOND A MENDED AND R ESTATED S TOCKHOLDERS ’ A GREEMENT
(f) The Stockholders’
Agreement is hereby amended by deleting the first sentence of
paragraph (a) of Section 5.2 and replacing it in its
entirety with the following:
“If at any time a Restricted
Stockholder (“ Transferring Stockholder ”)
desires to Transfer his or its Common Shares or other equity
securities of the Company, in each case, now owned or hereafter
acquired, to a third party (the “ Proposed Transferee
”) and such Transfer has been approved in accordance with
Section 5.1(a) above, then notwithstanding that such approval
was obtained, the Transferring Stockholder shall, at least thirty
(30) days prior to any Transfer, submit a written offer (the
“ Offer ”) to sell such Common Shares or other
securities of the Company (the “ Offered Shares
”) to the Investors, Dr. Raymond Schinazi and the
Schinazi Transferees (collectively referred to as the
“Buyers” in this Section 5) on terms and
conditions, including price, not less favorable to the Buyers than
those on which the Transferring Stockholder proposes to Transfer
such Offered Shares to the Proposed Transferee.”
(g) The Stockholders’
Agreement is hereby amended by deleting Section 7.1 and
replacing it in its entirety with the following:
“7.1 Waivers and
Amendments . The rights and obligations of the Company may not
be waived (either general
