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Exhibit 4.2.2
SYNTA PHARMACEUTICALS CORP.
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This
First Amendment (the "AMENDMENT") to the Amended and Restated
Investor
Rights Agreement, dated December 13, 2002, by and among Synta
Pharmaceuticals
Corp., a Delaware corporation (the "COMPANY"), and the Investors
named therein
(the "INVESTOR RIGHTS AGREEMENT"), is made as of January 11, 2005,
by and among
the Company and the Investors. Capitalized terms used herein but
not defined
shall have the meanings ascribed to such terms in the Investor
Rights Agreement.
WHEREAS, Section 2 of the Investor Rights Agreement sets forth
certain
rights granted to the Investors with respect to the registration of
the
Registrable Securities;
WHEREAS, the Company and the Investors wish to alter the
registration
rights granted to the Investors as set forth in the Investor Rights
Agreement;
WHEREAS, the Company wishes to grant these registration rights to
an
additional Investor by adding an additional party to the Investor
Rights
Agreement, and the Company and the Investors wish to amend the
Investor Rights
Agreement to add such additional Investor;
WHEREAS, Section 4 of the Investor Rights Agreement sets forth
certain
rights granted to the Investors with respect to the right of first
refusal to
purchase certain securities issued by the Company;
WHEREAS, the Company and the Investors wish to amend the Investor
Rights
Agreement to provide that the rights set forth in Section 4
terminate upon the
closing of an Initial Offering; and
WHEREAS, in accordance with Section 5.7 of the Investor Rights
Agreement,
by executing and delivering this Amendment, the Company and each
Investor has
approved this Amendment.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants
contained in this Amendment and for other good and valuable
consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto
agree as follows:
1.
AMENDMENT
OF INVESTOR RIGHTS AGREEMENT.
(i)
The Investor
Rights Agreement is hereby amended by deleting the
preamble in its entirety and by substituting in lieu thereof the
following:
"THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
"AGREEMENT")
dated as of December 13, 2002, is by and among Synta
Pharmaceuticals Corp., a
Delaware corporation (the "COMPANY"), Robert A. Day and Mountain
Trail
Investments, LLC,
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(singly, a "DAY INVESTOR", and collectively, the "DAY INVESTOR"),
Keith R.
Gollust, Gollust Trust II, and Wyandanch Partners, L.P. (singly, a
"GOLLUST
INVESTOR", and collectively, the "GOLLUST INVESTOR") and Bruce
Kovner and
Cxsynta LLC, an affiliate of Caxton Corporation (singly, a "CAXTON
INVESTOR",
and collectively, the "CAXTON INVESTOR") (each an "INVESTOR" and,
collectively,
the "INVESTORS")."
(ii)
The Investor Rights
Agreement is hereby amended by deleting Sections
1(d), (e), (h), (q), (r), (t), (u) and (v) in their entirety and by
substituting
in lieu thereof the following:
"(d) The
term "COMPANY INDEMNIFIED PARTIES" has the meaning set
forth in SECTION 2.7(a) hereof."
"(e)
[Intentionally omitted.]"
"(h) The
term "HOLDER" means any person owning or having the right
to
acquire Registrable Securities, or any assignee thereof, in
accordance
with
SECTION 2.9 hereof."
"(q) The
term "REGISTRABLE SECURITIES" means (i) any shares of
Common Stock held by an Investor (ii) any shares of capital stock
of the
Company acquired by an Investor (or any transferee of an Investor)
after
the
date hereof pursuant to the Stockholders' Agreement and (iii)
any
Common Stock issued as (or issuable upon the conversion or exercise
of any
warrant, right or other security) a dividend or other distribution
with
respect to or because of stock splits, stock dividends,
reclassifications,
recapitalizations, or similar events, or in exchange for, or in
replacement
of
the shares referenced in (i) and (ii) above, excluding in all
cases,
however, any Registrable Securities sold by a person in a
transaction in
which his, her or its rights under SECTION 2 hereof are not
assigned.
Registrable Securities shall exclude any shares which (A) have
been
registered under the Securities Act pursuant to an effective
registration
statement filed thereunder and disposed of in accordance with
the
registration statement covering them, or (B) may be publicly sold
pursuant
to
and in compliance with SEC Rule 144 in any ninety (90) day
period,
provided that such shares shall not be excluded if (x) the number
of shares
proposed to be sold by such Investor is larger than the number of
shares
that
may be sold in any single 90-day period pursuant to Rule 144 or
(y)
such
Investor believes in good faith that a sale pursuant to Rule 144
will
be
less advantageous to it than a sale pursuant to SECTIONS 2.1, 2.2
or
2.3."
"(r) The
term "REQUESTING HOLDERS" has the meaning set forth in
SECTION 2.1(a) hereof."
"(t) The
term "SELLING HOLDER" has the meaning set forth in
SECTION 2.2(a) hereof."
"(u) The
term "SELLING HOLDER INDEMNIFIED PARTIES" has the meaning
set
forth in SECTION 2.7(b) hereof."
"(v) The
term "VIOLATION" has the meaning set forth in
SECTION 2.7(a) hereof."
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(iii) The Investor Rights Agreement is hereby amended by deleting
Section 2
in its entirety and by substituting in lieu thereof the
following:
"2. Registration
Rights. The Company covenants and agrees as follows:
2.1
DEMAND
REGISTRATION.
(a)
Commencing upon the expiration of any lock-up agreement that
the Holders have entered into with the underwriters in connection
with an
Initial Offering pursuant to SECTION 2.10, subject to the
limitations set forth
in this SECTION 2, the Holders of not less than 60% of the then
outstanding
Registrable Securities (the "REQUESTING HOLDERS") may at any time
give to the
Company a written request for the registration (a "DEMAND
REGISTRATION") by the
Company under the Act of all or any part of the Registrable
Securities held by
such Requesting Holders. Within 15 business days after the receipt
by the
Company of any such written request, the Company will give written
notice of
such request to all Holders of Registrable Securities.
(b)
Subject to the limitations set forth in this SECTION 2, after
the receipt of a written request for a Demand Registration, (i) the
Company will
be obligated to include in such Demand Registration all Registrable
Securities
with respect to which the Company receives from Holders of
Registrable
Securities the written requests of such Holders for inclusion in
such Demand
Registration, within 30 days after the date on which the Company
gives to all
Holders a written notice of registration request pursuant to
SECTION 2.1(a), and
(ii) the Company shall file a registration statement covering all
such
Registrable Securities as soon as practicable after receipt of the
written
requests of such Holders for inclusion in such Demand Registration,
and shall
use its commercially reasonable efforts to effect the registration
of all such
Registrable Securities. All written requests made by Holders of
Registrable
Securities pursuant to this SECTION 2.1(b) will specify the number
of
Registrable Securities to be registered and will also specify the
intended
method of disposition thereof. If the Requesting Holders intend to
distribute
the Registrable Securities by means of an underwriting, they shall
so advise the
Company in their request. The underwriter shall be reasonably
acceptable to the
Company.
(c)
The registration statement filed pursuant to any Demand
Registration pursuant to this SECTION 2.1 may, subject to the
limitations set
forth in this SECTION 2, include other securities of the Company
which are held
by persons other than the Holders who, by virtue of agreements with
the Company,
are entitled to include their securities in any such
registration.
(d)
The Company shall not be required to effect any Demand
Registration of any Registrable Securities pursuant to this SECTION
2.1 if the
anticipated aggregate offering price, net of underwriting discounts
and
commissions, of the Registrable Securities will not equal or exceed
fifteen
million dollars ($15,000,000).
(e)
The Company shall not be required to effect more than two (2)
Demand Registrations pursuant to this SECTION 2.1.
(f)
The Company will not be obligated to effect any Demand
Registration of any Registrable Securities pursuant to this SECTION
2.1 during
the period commencing on the date falling 90 days prior to the
Company's
estimated date of filing of, and ending on the date 180
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days following the effective date of, any registration statement
pertaining to
any registration initiated by the Company, for the account of the
Company (other
than with respect to securities registered solely in connection
with
acquisitions, employee benefit plans, and the like), if the written
request of
the Requesting Holders for such Demand Registration pursuant to
SECTION 2.1(a)
hereof is received by the Company after the Company has commenced
an
underwritten registration initiated by the Company and provides
reasonable
evidence that it commenced activities directly related to such
filing before
receiving the written request of the Holders; PROVIDED, HOWEVER,
that the
Company will use its commercially reasonable efforts in good faith
to cause any
such registration statement to be filed and to become effective as
expeditiously
as is reasonably possible.
(g)
The Company will not be obligated to effect any Demand
Registration of any Registrable Securities pursuant to this SECTION
2.1 for not
more than a 120-day period, if: (i) in the good faith judgment of
the Board of
Directors of the Company, such registration would be seriously
detrimental to
the Company and the Board of Directors of the Company concludes, as
a result,
that it is essential to defer the filing of such registration
statement at such
time, and (ii) the Company shall furnish to such Holders a
certificate signed by
the Chief Executive Officer of the Company stating that in the good
faith
judgment of the Board of Directors of the Company, it would be
seriously
detrimental to the Company for such registration statement to be
filed in the
near future and that it is, therefore, essential to defer the
filing for a
period of not more than 120 days after receipt of the request of
the Requesting
Holders; and FURTHER PROVIDED, that the Company shall not defer its
obligation
in this manner more than once in any twelve-month period.
(h)
If the managing underwriters in any Demand Registration
advise the Company that the number of securities proposed to be
included in such
registration exceeds, in the opinion of the managing underwriters
of such
registration in light of marketing factors, the number of
securities to which
such registration should be limited (the "UNDERWRITERS' MAXIMUM
NUMBER"), then:
(i) the Company will be obligated to include in such registration
that number of
Registrable Securities requested by Holders to be included in such
registration
as does not exceed the Underwriters' Maximum Number, and such
number of
Registrable Securities will be allocated PRO RATA among such
Holders on the
basis of the number of Registrable Securities held by each such
Holder; (ii) if
the Underwriters' Maximum Number exceeds the number of Registrable
Securities
requested by Holders to be included in such registration, then the
Company will
be entitled to include in such registration that number of
securities as has
been requested by the Company to be included in such registration
for the
account of the Company and that is not greater than such excess;
and (iii) if
the Underwriters' Maximum Number exceeds the sum of the number of
Registrable
Securities that the Company is obligated under clause (i) above to
include in
such Demand Registration plus the number of securities that the
Company proposes
to offer and sell for its own account in such registration, then
the Company may
include in such registration that number of other securities as
security holders
other than Holders may have requested be included in such
registration and that
is not greater than such excess, and such number of excess
securities will be
allocated PRO RATA among such security holders other than the
Holders on the
basis of the number of such securities requested to be included in
such
registration by each such security holder. Neither the Company nor
any of its
other security holders will be entitled to include any securities
in any
underwritten Demand Registration unless the Company or such
security holders
(as the case may be) agree in writing to sell such securities
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on the same terms and conditions as apply to the Registrable
Securities held by
Holders to be included in such Demand Registration.
2.2
PIGGYBACK
REGISTRATION.
(a)
At any time subsequent to the expiration of any lock-up
agreement that the Holders have entered into with the underwriters
in connection
with an Initial Offering pursuant to SECTION 2.10, if (but without
any
obligation to do so) the Company proposes to register (including
for this
purpose a registration effected by the Company for stockholders
other than the
Holders) any of its stock or other securities under the Act (other
than a
registration statement on Form S-8 or Form S-4, or their
successors, or any
registration statement effected solely to implement an employee
benefit plan or
covering only securities proposed to be issued in exchange for
securities or
assets of another corporation), the Company shall, at such time,
promptly give
each Holder written notice of such registration. Upon the written
request of
each Holder (a "SELLING HOLDER") received within 30 days after the
date on which
the Company gives such notice in accordance with the provisions
hereof, the
Company shall, subject to the provisions of this SECTION 2, use all
reasonable
efforts to cause to be registered under the Act all of the
Registrable
Securities that each such Holder has requested to be
registered.
(b)
The Company shall have the right to terminate or withdraw any
registration initiated by it under this SECTION 2.2 prior to the
effectiveness
of such registration whether or not any Holder has elected to
include securities
in such registration. The expenses of such withdrawn registration
shall be borne
by the Company in accordance with SECTION 2.6 hereof.
(c)
In connection with any offering involving an underwriting of
shares of the Company's capital stock, the Company shall not be
required under
this SECTION 2.2 to include any of the Holders' securities in such
underwriting
unless they accept the terms of the underwriting as agreed upon
between the
Company and the underwriters selected by it, which terms shall not
contravene
any of the terms hereof without the consent of the Selling Holders
holding at
least 50% of the Registrable Securities requested to be included in
such
registration statement, and enter into such an underwriting
agreement in
customary form with an underwriter or underwriters selected by the
Company. In
connection with any such underwriting agreement, no Selling Holder
shall be
required to make representations and warranties other than
representations and
warranties regarding such Selling Holder's ownership and title to
the
Registrable Securities being sold by it and its plan of
distribution with
respect to its Registrable Securities. The number of securities
which shall be
included in such registration shall be in such quantity as the
managing
underwriter determines in its sole discretion will not materially
and adversely
affect the offering by the Company. If the total number of
securities, including
Registrable Securities, requested by stockholders to be included in
such
offering exceeds the number of securities that the managing
underwriter
determines in its sole discretion will not materially and adversely
affect the
offering, then the Company shall be required to include in the
offering only
that number of such securities, including Registrable Securities,
that the
managing underwriter determines in writing in its sole discretion
will not
materially and adversely affect the offering (the securities so
included to be
apportioned pro rata among the Selling Holders according to the
total amount of
securities entitled to be included therein owned by each Selling
Holder or in
such other proportions as shall mutually be agreed to by such
Selling Hold
