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EXHIBIT 4.2
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SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
by and among
AMICUS THERAPEUTICS, INC.,
and
THE STOCKHOLDERS NAMED HEREIN
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DATED: AUGUST 17, 2005
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TABLE OF CONTENTS
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1. Definitions
.................................................... 1
2. Grant Of
Rights ................................................
4
3. Demand
Registration ............................................
4
(a)
Request for
Demand Registration for Holders .............. 4
(b)
Incidental or
"Piggy-Back" Rights with Respect to a Demand
Registration. ............................................
5
(c)
Effective Demand
Registration ............................ 5
(d)
Expenses
................................................. 6
(e)
Underwriting
Procedures .................................. 6
(f)
Selection of
Underwriters ................................ 6
4
Incidental or "Piggy-Back" Registration ........................
6
(a)
Request for
Incidental Registration ...................... 6
(b)
Expenses.
................................................ 7
5. Form S-3
Registration ..........................................
7
(a)
Request for a
Form S-3 Registration ...................... 7
(b)
Limitations on
Form S-3 Registrations .................... 7
(c)
Expenses
................................................. 8
(d)
No Demand
Registration ................................... 8
6. Holdback
Agreements ............................................
8
(a)
Restrictions on
Public Sale by Holders ................... 8
(b) Legend
................................................... 9
7. Registration
Procedures ........................................ 9
(a)
Obligations of
the Company ............................... 9
(b)
Seller
Information ....................................... 11
(c)
Notice to
Discontinue .................................... 11
(d)
Registration
Expenses .................................... 12
8.
Indemnification; Contribution ..................................
12
(a)
Indemnification
by the Company ........................... 12
(b)
Indemnification
by Holders ............................... 13
(c)
Conduct of
Indemnification Proceedings ................... 14
(d)
Contribution
............................................. 14
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TABLE OF CONTENTS
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9. Rule 144
.......................................................
15
10. Limitations on
Subsequent Registration Rights; No Inconsistent
Agreements .....................................................
15
11. Miscellaneous
.................................................. 15
(a)
Recapitalizations Exchanges, Etc .........................
16
(b)
Remedies
................................................. 16
(c)
Amendments and
Waivers ................................... 16
(d) Notices
.................................................. 16
(e)
Successors and
Assigns; Third Party Beneficiaries ........ 17
(f)
Counterparts...
.......................................... 17
(g)
Headings
................................................. 17
(h)
Governing Law
............................................ 17
(i)
Entire Agreement
......................................... 18
(j)
Severability
............................................. 17
(k)
Further
Assurances ....................................... 18
(l)
Other Agreements
......................................... 18
(m)
Jury Trial
Waiver ........................................ 18
(n)
Expenses
................................................. 18
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SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, dated
August
17, 2005 (this "Agreement"), by and among Amicus Therapeutics,
Inc,. a Delaware
corporation (the "Company"), the parties listed on Schedule I
hereto (the
"Investors") and the parties listed on Schedule II hereto.
WHEREAS, the Company and certain of the Investors are parties to
the
Amended and Restated Investor Rights Agreement, dated May 4, 2004
(the "Existing
Investor Rights Agreement") and hold sufficient voting power to
amend the
Existing Investor Rights Agreement (the "Amending Investors");
and
WHEREAS, pursuant to the Series C Preferred Stock Purchase
Agreement, dated August 17, 2005 (the "Series C Stock Purchase
Agreement"), by
and between the Company and each of the parties identified on
Schedule I
thereto, the Company has agreed to issue and sell to such parties
an aggregate
of 43,650,262 shares, par value $0.01 per share, of Series C
Convertible
Preferred Stock of the Company (the "Series C Preferred Stock");
and
WHEREAS, in order to induce each of the Investors to purchase
its
shares of Series C Preferred Stock, the Company and the Amending
Investors are
entering into this Agreement to, among other things, amend and
restate the
Existing Investor Rights Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable
consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
amend and
restate the Existing Investor Rights Agreement as follows:
1.
Definitions. As used in this Agreement the following terms have
the
meanings indicated:
"Agreement" means this Second Amended and Restated Investor
Rights
Agreement as the same may be amended, supplemented or modified in
accordance
with the terms hereof.
"Approved
Underwriter" has the meaning set forth in Section 3(f) of this
Agreement.
"Bridge
Loan Warrants" mean the warrants to purchase Common Stock
issued
pursuant to the Note and Warrant Purchase Agreements.
"Business
Day" means any day other than a Saturday, Sunday or other day
on
which commercial banks in the State of Delaware are authorized or
required by
law or executive order to close.
"Closing
Price" means, with respect to the Registrable Securities, as of
the date of determination, (a) the closing price per share of a
Registrable
Security on such date published in
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The Wall Street Journal or, if no such closing price on such date
is published
in The Wall Street Journel, the average of the closing bid and
asked prices on
such date, as officially reported on the principal national
securities exchange
(including, without limitation, The Nasdaq Stock Market, Inc.) on
which the
Registrable Securities are then listed or admitted to trading; or
(b) if the
Registrable Securities are not then listed or admitted to trading
on any
national securities exchange but are designated as national market
system
securities by the NASD, the last trading price per share of a
Registrable
Security on such date; or (c) if there shall have been no trading
on such date
or if the Registrable Securities are not so designated, the average
of the
reported closing bid and asked prices of the Registrable Securities
on such date
as shown by The Nasdaq Stock Market Inc. (or its successor) and
reported by any
member firm of The New York Stock Exchange, Inc. selected by the
Company; or (d)
if none of (a), (b) or (c) is applicable, a market price per share
determined in
good faith by the Company's Board of Directors. If trading is
conducted on a
continuous basis on any exchange, then the closing price shall be
at 4:00 P.M.
New York City time.
"Common
Stock" means the Common Stock, par value $0.01 per share, of
the
Company or any other capital stock of the Company into which such
stock is
reclassified or reconstituted.
"Company"
meaning set forth in the preamble to this Agreement.
"Company
Underwriter" has the meaning set Forth in Section 4(a) of this
Agreement.
"Demand
Registration" has the meaning set forth in Section 3(a) of this
Agreement.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder.
"GECC"
means General Electric Capital Corporation, a Delaware
corporation.
"GECC
Warrant" means the warrant to purchase 40,000 shares of Common
Stock
at an exercise price of $0.75 per share, issued by the Company to
GECC on August
28, 2002.
"Holder"
means any person owning Registrable Securities.
"Holders'
Counsel" has the meaning set forth in Section 7(a)(i) of
this Agreement.
"Incidental Registration" has the meaning set forth in Section 4(a)
of
this Agreement.
"Indemnified Party" has the meaning set forth in Section 8(c) of
this
Agreement.
"Indemnifying Party" has the meaning set forth in Section 8(c) of
this
Agreement.
"Initial
Public Offering" means the initial public offering of the
shares
of Common Stock of the Company pursuant to an effective
Registration Statement
filed under the Securities Act.
"Initiating Holders" has the meaning set forth in Section 3(a) of
this
Agreement.
"Inspector" has the meaning set forth in Section 7(a)(vii) of
this
Agreement.
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"Investors" has the meaning set forth in the preamble to this
Agreement.
"IPO
Effectiveness Date" means the date upon which the Company closes
its
Initial Public Offering.
"Liabilities" has the meaning set forth in Section 8(a) of this
Agreement,
"Market
Price" means, on any date of determination, the average of the
daily Closing Price of the Registrable Securities for the
immediately preceding
thirty (30) days on which the national securities exchanges are
open for
trading.
"Mount
Sinai" means Mount Sinai School of Medicine of New York
University
"Mount
Sinai Shares" means the 1,742,000 shares of Common Stock issued
to
Mount Sinai on April 15, 2002 and held by Mount Sinai.
"NASD"
means the National Association of Securities Dealers, Inc.
"Note and
Warrant Purchase Agreements" mean the Note and Warrant Purchase
Agreement dated as of August 25, 2003 and the Note and Warrant
Purchase
Agreement November 26, 2003, as amended as of February 5, 2004 and
April 20,
2004, between the Company and the investors signatory thereto.
"Permitted
Transferee" has the meaning set forth in Section 2.2 of the
Stockholders Agreement.
"Person"
means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated
association, joint
venture, joint stock company, government (or an agency or political
subdivision
thereof) or other entity of any kind, and shall include any
successor (by merger
or otherwise) of such entity.
"Records"
has the meaning set forth in Section 7(a)(vii) of this
Agreement.
"Registration Expenses" has the meaning set forth in Section 7(d)
of this
Agreement,
"Registrable Securities" means (a) the Common Stock of the Company
issued
or issuable upon conversion of the Series A Preferred Stock, the
Series B
Preferred Stock, the Series C Preferred Stock, or upon the
conversion of the
Warrants; (b) the Mount Sinai Shares; (c) any 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 the Series A Preferred
Stock, Series B
Preferred Stock, Series C Preferred Stock or the Mount Sinai
Shares; (d) any
Common Stock acquired (i) by any Investor or Mount Sinai subsequent
to the date
hereof or (ii) by CHL Medical Partners II, L.P. or CHL Medical
Partners II Side
Fund, L.P. upon the exercise of the Bridge Loan Warrants and (e)
the Common
Stock issuable upon the exercise of the GECC Warrant.
Notwithstanding the
foregoing, that as to any particular Registrable Securities that
have been
issued, such securities shall cease to be Registrable Securities
when (i) a
registration statement with respect to the sale of such securities
shall have
become effective under the Securities Act and such
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securities shall have been disposed of under such registration
statement, (ii)
they shall have been distributed to the public pursuant to Rule
144, (iii) they
shall have been otherwise transferred or disposed of, and new
certificates
therefor not bearing a legend restricting further transfer shall
have been
delivered by the Company, and subsequent transfer or disposition of
them shall
not require their registration or qualification under the
Securities Act or any
similar state law then in force, or (iv) they shall have ceased to
be
outstanding.
"Registration Statement" means a registration statement filed by
the
Company with the SEC for a public offering and sale of securities
of the Company
(other than a registration statement on Form S-8 or Form S-4, or
their
successors).
"S-3
Initiating Holders" has the meaning set forth in Section 5(a) of
this
Agreement.
"S-3
Registration" has the meaning set forth in Section 5(a) of this
Agreement.
"SEC"
means the Securities and Exchange Commission or any similar
agency
then administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and
the
rules and regulations of the SEC promulgated thereunder.
"Series A
Preferred Stock" means the Series A Convertible Preferred Stock
of the Company, par value $0.01 per share.
"Series B
Preferred Stock" means the Series B Convertible Preferred Stock
of the Company, par value $0.01 per share.
"Series C
Preferred Stock" has the meaning set forth in the preamble to
this Agreement.
"Stockholders Agreement" means the Second Amended and Restated
Stockholders Agreement, dated the date hereof, as amended from time
to time,
among the Company, the Investors, and the other stockholders named
therein.
"Warrants"
has means warrants to purchase up to 555,003 shares of Series B
Preferred Stock.
2. Grant
Of Rights. The Company hereby grants Registration Rights to the
Holders upon the terms and conditions set forth in this
Agreement.
3. Demand
Registration.
(a) Request for Demand Registration for Holders. At any time
after
the IPO Effectiveness Date, the Holders of a majority of the
Registrable
Securities held in the aggregate by all Holders (the "Initiating
Holders"), may
make a written request to the Company to register, and the Company
shall
register, under the Securities Act (other than pursuant to a
Registration
Statement on Form S-4 or S-8 or any successor thereto) (a
"Demand
Registration"), the number of Registrable Securities stated in such
request;
provided, however, that the Company shall not be obligated to
effect (i) more
than two such Demand Registrations under this Section 3(a) and
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(ii) a Demand Registration if the Initiating Holders propose to
sell their
Registrable Securities at an aggregate price (calculated based upon
the Market
Price of the Registrable Securities on the date of filing of the
Registration
Statement with respect to such Registrable Securities) to the
public of less
than $5,000,000. For purposes of the preceding sentence, two or
more
Registration Statements filed in response to one demand shall be
counted as one
Registration Statement. If at the time of any request to register
Registrable
Securities pursuant to this Section 3(a), the Company is engaged in
a registered
public offering or the Company determines in good faith certifies
in writing
that any such registration would require the Company to include
disclosure that
would reasonably be expected to have a materially detrimental
effect on any
proposal, negotiations or plan by the Company or any of its
subsidiaries to
engage in any material acquisition or disposition of assets or any
material
merger, consolidation, tender offer, reorganization or similar
transaction or
any other material corporate event contemplated by the Company,
then the Company
may at its option direct that such request be delayed for a
reasonable period
not in excess of three (3) months, such right to delay a request to
be exercised
by the Company not more than once in any twelve (12) month period.
Each request
for a Demand Registration by the Initiating Holders shall state the
amount of
the Registrable Securities proposed to be sold and the intended
method of
disposition thereof.
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Holders (other than Initiating Holders
which have
requested a registration under Section 3(a)) may include its or his
Registrable
Securities in any Demand Registration pursuant to this Section
3(b). Within ten
(10) days after the receipt of a request for a Demand Registration
from an
Initiating Holder, the Company shall (i) give written notice
thereof to all of
the Holders (other than Initiating Holders which have requested a
registration
under Section 3(a)) and (ii) subject to Section 3(e), include in
such
registration all of the Registrable Securities held by such Holders
from whom
the Company has received a written request for inclusion therein
within twenty
(20) days of the receipt by such Holders of such written notice
referred to in
clause (i) above. Each such request by such Holders shall specify
the number of
Registrable Securities proposed to be registered. The failure of
any Holder to
respond within such 20-day period referred to in clause (ii) above
shall be
deemed to be a waiver of such Holder's rights under this Section 3
with respect
to such Demand Registration, provided that any Holder may waive its
rights under
this Section 3 prior to the expiration of such 20-day period by
giving written
notice to the Company, with a copy to the Initiating Holders.
(c) Effective Demand Registration. A registration shall not
constitute a Demand Registration until it has become effective and
remains
continuously effective for the lesser of (i) the period during
which all
Registrable Securities registered in the Demand Registration are
sold and (ii)
120 days; provided, however, that a registration shall not
constitute a Demand
Registration if (x) after such Demand Registration has become
effective, such
registration or the related offer, sale or distribution of
Registrable
Securities thereunder is interfered with by any stop order,
injunction or other
order or requirement of the SEC or other governmental agency or
court for any
reason not attributable to the Initiating Holders and such
interference is not
thereafter eliminated or (y) the conditions specified in the
underwriting
agreement, if any, entered into in connection with such Demand
Registration are
not satisfied or waived, other than by reason of a failure by the
Initiating
Holder.
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(d) Expenses. The Company shall pay all Registration Expenses
in
connection with a Demand Registration, whether or not such Demand
Registration
becomes effective.
(e) Underwriting Procedures. If the Company or the Initiating
Holders holding a majority of the Registrable Securities held by
all of the
Initiating Holders so elect, the Company shall use its reasonable
best efforts
to cause such Demand Registration to be in the form of a firm
commitment
underwritten offering and the managing underwriter or underwriters
selected for
such offering shall be the Approved Underwriter selected in
accordance with
Section 3(f). In connection with any Demand Registration under this
Section 3
involving an underwritten offering, none of the Registrable
Securities held by
any Holder making a request for inclusion of such Registrable
Securities
pursuant to Section 3 hereof shall be included in such underwritten
offering
unless such Holder accepts the terms of the offering as agreed upon
by the
Company, the Initiating Holders and the Approved Underwriter, and
then only in
such quantity as will not, in the opinion of the Approved
Underwriter, have a
material adverse effect on the success of such offering by the
Initiating
Holders. If the Approved Underwriter advises the Company that the
aggregate
amount of such Registrable Securities requested to be included in
such offering
is sufficiently large to have a material adverse effect on the
success of such
offering, then the Company shall include in such registration only
the aggregate
amount of Registrable Securities that the Approved Underwriter
believes may be
sold without any such internal adverse effect and shall reduce the
amount of
Registrable Securities to be included in such registration by
removing
Registrable Securities owned, first by the Company, second by the
entities
listed on Schedule II hereto, Mount Sinai and GECC, pro rata based
on the number
of Registrable Securities owned by each such Person and third by
all other
Holders, pro rata based on the number of Registrable Securities
owned by each
such Holder.
(f) Selection of Underwriters. If any Demand Registration or
S-3
Registration, as the case may be, of Registrable Securities is in
the form of an
underwritten the Company shall select and obtain an investment
banking firm of
national reputation to act as the managing underwriter of the
offering (the
"Approved Underwriter"), provided. however, that the Approved
Underwriter shall,
in any case, also be approved by the Initiating Holders or S-3
Initiating
Holders, as the case may be, such approval not to be unreasonably
withheld,
4.
Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the
IPO
Effectiveness Date, if the Company proposes to file a Registration
Statement
under the Securities Act with respect to an offering by the Company
for its own
account (other than a Registration Statement on Form S-4 or S-8 or
any successor
thereto) or for the account of any stockholder of the Company other
than the
Initiating Holders pursuant to a Demand Registration, then the
Company shall
give written notice of such proposed filing to each of the Holders
at least
twenty (20) days before the anticipated filing date, and such
notice shall
describe the proposed registration and distribution and offer such
Holders the
opportunity to register the number of Registrable Securities as
each such Holder
may request (an "Incidental Registration"). The Company shall use
its reasonable
best efforts (within ten (10) days of the notice provided for in
the preceding
sentence) to cause the managing underwriter or underwriters in the
case of a
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proposed underwritten offering (the "Company Underwriter") to
permit each of the
Holders who have requested in writing to participate in the
Incidental
Registration to include its or his Registrable Securities in such
offering on
the same terms and conditions as the securities of the Company or
the account of
such other stockholder, as the case may be, included therein. In
connection with
any Incidental Registration under this Section 4(a) involving an
underwritten
offering, the Company shall not be required to include any
Registrable
Securities in such underwritten offering unless the Holders thereof
accept the
terms of the underwritten offering as agreed upon between the
Company, such
other stockholders, if any, and the Company Underwriter, and then
only in such
quantity as the Company Underwriter believes will not have a
material adverse
effect on the success of such offering. If the Company Underwriter
determines
that the registration of all or part of the Registrable Securities
which the
Holders have requested to be included would have a material adverse
effect on
the success of such offering, then the Company shall be required to
include in
such Incidental Registration, to the extent of the amount that the
Company
Underwriter believes may be sold without causing such adverse
effect, first, all
of the securities to be offered for the account of the Company or
the account of
any other stockholder at the request of which the Company intends
to file a
Registration Statement, as the case may be; second, the Registrable
Securities
to be offered for the account of the Holders, pro rata based on the
number of
Registrable Securities owned by each such Holder; and third, any
other
securities requested to be included in such underwritten
offering.
(b) Expenses. The Company shall bear all Registration Expenses
in
connection with any Incidental Registration pursuant to this
Section 4, whether
or not such Incidental Registration becomes effective.
5. Form
S-3 Registration.
(a)
Request for a Form S-3 Registration. Upon the Company becoming
eligible for use of Form S-3 (or any successor form thereto) under
the
Securities Act in connection with a public resale of its
securities, in the
event that the Company shall receive from one or more of the
Holders (the "S-3
Initiating Holders"), a written request that the Company register,
under the
Securities Act on Form S-3 (or any successor form then in effect)
(an "S-3
Registration"), all or a portion of the Registrable Securities
owned by such S-3
Initiating Holders, the Company shall give written notice of such
request to all
of the Holders (other than S-3 Initiating Holders which have
requested an S-3
Registration under this Section 5(a)) at least thirty (30) days
before the
anticipated filing date of such Form S-3, and such notice shall
describe the
proposed registration and offer such Holders the opportunity to
register the
number of Registrable Securities as each such Holder may request in
writing to
the Company, given within fifteen (15) days after their receipt
from the Company
of the written notice of such registration. With respect to each
S-3
Registration, the Company shall, subject to Section 5(b), (i)
include in such
offering the Registrable Securities of the S-3 Initiating Holders
and (ii)
include such offering the Registrable Securities of the Holders
(other than S-3
Initiating Holders which have requested an S-3 Registration under
this Section
5(a)) who have requested in writing to participate in such
registration on the
same terms and conditions as the Registrable Securities of the S-3
Initiating
Holders included therein.
(b) Limitations on Form S-3 Registrations. If at the time of
any
request to register Registrable Securities pursuant to Section
5(a), the Company
is engaged in a registered
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public offering or if the Company shall in good faith certify in
writing that
any such registration would require the Company to include
disclosure that would
reasonably be expected to have a materially detrimental effect on
any proposal,
negotiations or plan by the Company or any of its subsidiaries to
engage in any
material acquisition or disposition of assets or any material
merger,
consolidation, tender offer, reorganization or similar transaction
or any other
material corporate events, contemplated by the Company, then the
Company may at
its option direct that such request be delayed for a reasonable
period not in
excess of three (3) months, such right to delay a request to be
exercised by the
Company not more than once in any twelve (12) month period. In
addition, the
Company shall not be required to effect any registration pursuant
to Section
5(a), (i) within ninety (90) days after the effective date of any
other
Registration Statement of the Company, (ii) if within the twelve
(12) month
period preceding the date of such request, the Company has effected
two (2)
registrations on Form S-3 pursuant to Section 5(a), (iii) if Form
S-3 is not
available for such offering by the S-3 Initiating Holders or (iv)
if the S-3
Initiating Holders, together with the Holders (other than S-3
Initiating Holders
which have requested an S-3 Registration under Section 5(a))
registering
Registrable Securities in such registration, propose to sell their
Registrable
Securities at an aggregate price (calculated based upon the Market
Price of the
Registrable Securities on the date of filing of the Form S-3 with
respect to
such Registrable Securities) to the public of less than
$2,500,000.
(c) Expenses. The Company shall bear all Registration Expenses
in
connection with any S-3 Registration pursuant to this Section 5,
whether or not
such S-3 Registration becomes effective.
(d) No Demand Registration. No registration requested by any
Holder
pursuant to this Section 5 shall be deemed a Demand Registration
pursuant to
Section 3.
6.
Holdback Agreements.
(a) Restrictions on Public Sale by Holders. In connection with
any
public offering, each Holder, if requested by the Company and the
underwriters
managing such public offering, shall agree not to sell or otherwise
transfer or
dispose of any Registrable Securities or other securities of the
Company held by
such Holder (other than those Registrable Securities, if any,
included in the
public offering) for a specified period of time determined by the
Company and
the underwriters following the effective date of a Registration
Statement;
provided, however, that: (i) such agreement shall not exceed 180
days from the
effective date of such registration; (ii) all holders of Common
Stock holding
not less than the number of shares of Common Stock held by such
Holder
(including shares of Common Stock issuable upon the conversion of
Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
or other
convertible or exchangeable securities, or upon the exercise of
options,
warrants or other rights) and all officers and directors of the
Company enter
into similar agreements; provided, however, that all restrictions
set forth in
this Section 6 on all such Holders shall terminate and be of no
further force or
effect if any such holder, officer, other Holder, or director is
released from,
or otherwise no longer bound by, such restrictions; and (iii) such
agreement
shall only apply to the first such Registration Statement covering
Common Stock
of the Company to be sold on its behalf to the public in the
Initial Public
Offering.
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(b) Legend. Each certificate representing the Registrable
Securities
shall bear
