First
Amendment to
Amended and Restated
Investor Rights Agreement
This First Amendment to the Amended and
Restated Investor Rights Agreement (the
“Amendment” ) is made effective as of
October 31, 2005, and is entered into by and among
SGX Pharmaceuticals,
Inc. , a Delaware corporation, previously known as
Structural GenomiX, Inc. (the “Company”
), certain holders of the Company’s Series A Preferred
Stock ( “Series A Preferred” ), and
certain holders of the Company’s Series B Preferred
Stock ( “Series B Preferred” )
(which parties are hereinafter collectively referred to as the
“Original Parties” ).
Whereas, the Original Parties
have previously entered into that certain Amended and Restated
Investor Rights Agreement, dated April 21, 2005 (the
“Investor Rights Agreement” );
Whereas , the Company,
Silicon Valley Bank ( “SVB” ) and Oxford
Finance Corporation ( “Oxford” ) have
entered into a Loan and Security Agreement dated September 16,
2005 (the “Loan Agreement” );
and
Whereas , pursuant to the
Loan Agreement, the Company agreed to issue certain warrants to SVB
and Oxford and to solicit the requisite consent of the parties to
the Investor Rights Agreement to add SVB and Oxford as parties to
the Investor Rights Agreement to provide such parties with those
certain incidental, or “Piggyback,” registration rights
pursuant to and as set forth therein.
Now, therefore , in
consideration of the foregoing premises and the mutual covenants
and conditions herein, the parties hereto hereby agree
that:
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1.
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Capitalized terms not defined herein
shall have the meaning ascribed to them in the Investor Rights
Agreement.
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2.
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SVB
and Oxford shall become parties to the Investor Rights Agreement
and the definition of “Holder” in Section 1 of the
Investor Rights Agreement shall include SVB and Oxford;
provided, however , that neither SVB nor Oxford (nor any
permitted transferee or assignee of SVB or Oxford) shall be deemed
a Holder for purposes of Section 2.2 or 2.4 of the Investor
Rights Agreement.
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3.
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The
definition of “Registrable Securities” in
Section 1.1 of the Investor Rights Agreement shall be replaced
in its entirety with the following:
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“
“Registrable Securities” means the
(a) Common Stock of the Company issued or issuable upon
conversion of the Shares; (b) Bridge Converted Common Stock;
(c) Common Stock of the Company issued or issuable upon
conversion of the Conversion Securities (as those securities are
defined in the Convertible Promissory Note issued by the Company to
mHoldings Trust ( “mHoldings” ) dated
December 21, 2001 (the “Millennium
Note” ) (or in the event the Conversion Securities
(as those securities are defined in the Millennium Note) consist of
the Company’s Common Stock, the Conversion Securities (as
those securities are defined in the Millennium Note));
(d) Common Stock of the Company issued or issuable upon
conversion of the Warrant Securities (or in the event the
Warrant
1.
Securities
consist of the Company’s Common Stock, the Warrant
Securities), provided, however, that any such shares of
Common Stock or Warrant Securities issued upon exercise of the
Lender Warrants (or upon conversion of the Warrant Securities
issued upon exercise thereof) shall not be deemed Registrable
Securities for purposes of Section 2.2 or 2.4 hereof; and
(e) Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such above-described
securities. Notwithstanding the foregoing, Registrable Securities
shall not include any securities sold by a person to the public
either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferor’s
rights under Section 2 of this Agreement are not
assigned.”
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4.
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The
definition of “Shares” in Section 1.1 of the
Investor Rights Agreement shall be replaced in its entirety with
the following:
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“
“Shares” shall mean (a) the
Series A Stock and Series B Stock now held or hereafter
acquired by the Investors listed on Exhibit A hereto and
their permitted assigns; (b) the Pre-Series B Conversion
Preferred Stock held by the Investors listed on Exhibit A hereto and
their permitted assigns; (c) the Company securities issuable
upon exercise of the Warrant and the Lenders Warrants (the
“Warrant Securities” ); and (d) the
Conversion Securities (as those securities are defined in the
Millennium Note) issued pursuant to the Millennium Note to
mHoldings (or its permitted assigns).”
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5.
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The
following definition shall be added to Section 1.1 of the
Investor Rights Agreement immediately following the definition of
“Initial Offering”:
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“
“Lender Warrants” shall mean those
certain warrants issued to Silicon Valley Bank and Oxford Finance
Corporation (or their respective permitted assigns) pursuant to
that certain Loan and Security Agreement dated as of
September 16, 2005 by and among the Company, Silicon Valley
Bank and Oxford Finance Corporation.”
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6.
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By
executing this Amendment, each of SVB and Oxford agree to be bound
by the provisions of the Investor Rights Agreement, as amended by
this Amendment (and as may be subsequently amended from time to
time), including without limitation the provisions of
Section 2.13 thereof.
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7.
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This Amendment may be executed in
any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument. Except as
specifically amended by this Amendment, the terms and conditions of
the Investor Rights Agreement shall remain unchanged and in full
force and effect. This Amendment shall be governed by and construed
in accordance with the laws of the State of California as applied
to contracts among California residents entered into and performed
entirely within California.
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2.
In Witness Whereof , the
parties hereto have executed this First Amendment
to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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SGX Pharmaceuticals,
Inc.
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By:
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/s/ Michael
Grey
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Name:
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Michael
Grey
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Title:
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President and
Chief Executive Officer
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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ALEXANDRIA REAL
ESTATE EQUITIES, L.P.,
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a Delaware
limited partnership
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By:
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ARE-QRS
CORP.,
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a Maryland
corporation, general partner
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By:
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/s/ Etsuko
Mason
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Etsuko
Mason
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Vice President,
Treasurer and
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Assistant
Secretary
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Holders:
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*
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/s/ Jeanne
Larkin Henry
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Jeanne Larkin
Henry
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Vice-President
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ATLAS VENTURE
FUND III, L.P.
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ATLAS VENTURE
ENTREPRENEURS’ FUND III, L.P.
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Atlas Venture
Associates III, L.P.
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its general
partner
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Atlas Venture
Associates III, L.P.
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its general
partner
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ATLAS VENTURE
FUND IV, L.P.
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ATLAS VENTURE
PARALLEL FUND IV — A, C.V.
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ATLAS VENTURE
PARALLEL FUND IV — B, C.V.
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ATLAS VENTURE
ENTREPRENEURS’ FUND IV, L.P.
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Atlas Venture
Associates IV, L.P.
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its general
partner
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Atlas Venture
Associates IV, Inc.
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its general
partner
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Bavp, L.P.
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/s/ Louis C.
Bock
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Louis C.
Bock
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Managing
Director
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Caduceus Private
Investments, LP
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/s/ Eric A.
Bittelman
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Eric A.
Bittelman
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CFO, OrbiMed
Capital LLC, General Partner
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Coleman Swenson
Hoffman Booth IV L.P.
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Its General
Partner,
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CSHB Ventures
IV L.P.
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/s/ Larry H.
Coleman
Its: General
Partner
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Larry H.
Coleman
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General
Partner
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Walter T.
Dec
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/s/ Walter T.
Dec
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Walter T.
Dec
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Sir
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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/s/ Ken Dill Joland
Schreurs
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Ken Dill Joland
Schreurs
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Frederick
Frank
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/s/ Frederick
Frank
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Frederick
Frank
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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GC&H
Investments
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/s/ John L.
Cardoza
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John L.
Cardoza
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Executive
Partner
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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/s/ Wayne A.
Hendrickson
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Wayne A.
Hendrickson
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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C. S. Henney
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/s/ Christopher
S. Henney
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Chairman
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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James M.
Hesbough
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/s/ James M.
Hesbough
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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/s/ Barry
Honig
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Barry H.
Honig
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Index
Venture Management SA
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on behalf
of
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Index
Employee Investment Plan
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/s/ David
Rimer
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David
Rimer
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Director
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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/s/ Joshua
Lederberg
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Charles E.
Mather
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/s/ Charles E.
Mather
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Charles E.
Mather
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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K. Flynn
McDonald
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/s/ K. Flynn
McDonald
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K. Flynn
McDonald
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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/s/ Stelios
Papadopoulos
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Stelios
Papadopoulos
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Prospect Venture
Partners, L.P.
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/s/ Alex
Barkas
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Alex
Barkas
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Managing
Member, Prospect
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Management Co.
LLC, general
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partner of
Prospect Venture
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Partners,
L.P.
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[Signature
Page to First Amendment to Amended and Restated Investor Rights
Agreement]
In Witness Whereof , the
parties hereto have executed this First Amendment to the Amended and
Restated Investor Rights Agreement effective as of the
day and year first set forth above.
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Investors/Holders:
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Peter Reikes
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/s/ Peter
Reikes
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Peter
Reikes
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[Signature
Page to First Amendment to Amended and Re
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