Exhibit 4.2
SECOND AMENDED AND
RESTATED
REGISTRATION RIGHTS
AGREEMENT
THIS SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (this “ Agreement
”), dated as of September 25, 2003, is by and among RELIANT
PHARMACEUTICALS, LLC, a Delaware limited liability company (the
“ Company ”), and the members of the Company
listed on Exhibit A hereto (the “ Members
”). For the purposes of this Agreement, the term
“Company” shall be deemed to include and refer to any
successor in interest to the Company, whether by means of statutory
conversion, merger, consolidation or otherwise.
R E C I T A L
S
WHEREAS, the Company is a party to
that certain First Amended and Restated Registration Rights
Agreement, dated as of December 17, 2000 (the “ Original
Agreement ”), among the Company, holders of the
Company’s Series A Convertible Preferred Units (the “
Series A Preferred Units ”), holders of the
Company’s Series B Convertible Preferred Units (the “
Series B Preferred Units ” and, collectively, with the
Series A Preferred Units, sometimes referred to herein as the
“ Series A/B Preferred Units ”), and holders of
the Company’s Series C Convertible Preferred Units (the
“ Series C Preferred Units ”);
WHEREAS, pursuant to the Series D
Preferred Unit Subscription Agreement, dated as of September 25,
2003 (the “ Subscription Agreement ”), among the
Company and the purchasers identified therein (the “
Investors ”), the Company has agreed to issue and sell
to the Investors, and the Investors have agreed to subscribe for
and purchase from the Company, the Company’s Series D
Convertible Preferred Units (“ Series D Preferred
Units ” and, collectively with the Series A Preferred
Units, the Series B Preferred Units and the Series C Preferred
Units, the “ Preferred Units ”);
WHEREAS, to induce the Investors to
enter into the Subscription Agreement, the Company and the
signatories hereto (including, without limitation, the signatories
required pursuant to Section 11.3 of the Original Agreement) deem
it desirable to amend and restate the Original Agreement in its
entirety by entering into this Agreement.
NOW, THEREFORE, in consideration of
the recitals and the mutual premises, covenants and agreements
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree to amend and restate the Original
Agreement in its entirety as follows:
1. Definitions . In addition
to capitalized terms defined elsewhere in this Agreement, the
following capitalized terms shall have the following meanings when
used in this Agreement:
“ Commission ”
means the Securities and Exchange Commission and any successor
agency performing comparable functions.
“ Common Units ”
means the Company’s Class One common units.
“ Business Day ”
means each day other than a Saturday, a Sunday or any other day on
which banking institutions in the city of New York, New York are
authorized or obligated by law or executive order to be
closed.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rule and regulations of the
Commission thereunder, as the same shall be in effect from time to
time.
“ Operating Agreement
” means the Third Amended and Restated Operating Agreement of
the Company, dated as of the date hereof, as the same may be
amended from time to time.
“ Person ” means
an individual, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture,
unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision
thereof.
“ Public Offering
” means any offering by the Company of its equity securities
to the public pursuant to an effective registration statement under
the Securities Act or any comparable statement under any comparable
federal statute then in effect (other than any registration
statement on Form S-8 or Form S-4 or any successor forms
thereto).
“ Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) any common equity securities of the Company issuable upon
conversion or exchange of the Preferred Units, or issuable or
issued upon conversion or exchange of other equity securities of
the Company into which the Preferred Units shall be reclassified or
changed, including by reason of a merger, consolidation,
reorganization, recapitalization or statutory conversion then
outstanding which are then owned by any Member, including any other
Person who is a permitted transferee of such holder under the terms
of the Operating Agreement; (ii) any common equity securities of
the Company then outstanding which were issued as, or were issued
directly or indirectly upon the conversion, exchange or exercise of
other equity securities issued or issuable as a dividend, stock
split or other distribution with respect or in replacement of any
equity securities referred to in (i) of this definition; (iii) any
common equity securities of the Company then issuable directly or
indirectly upon the conversion, exchange or exercise of other
equity securities which were issued as a dividend or other
distribution with respect to or in replacement of any equity
securities referred to in clause (i) of this definition and (iv)
any common equity securities of the Company issued upon the
exercise of the Warrant Units and any other common equity
securities which were issued as a dividend or other distribution
with respect to or in replacement of any equity securities issued
upon exercise of the Warrant Units; provided, however , that
Registrable Securities shall not include any equity securities
which have been registered pursuant to the Securities Act or which
have been sold to the public pursuant to Rule 144 of the Commission
under the Securities Act.
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“ Securities Act
” means the Securities Act of 1933, as amended, or any
successor federal statute, and the rule and regulations of the
Commission thereunder, as the same shall be in effect from time to
time.
“ Series A/B Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) any common equity securities of the Company issuable upon
conversion or exchange of the Series A Preferred Units and/or the
Series B Preferred Units, or issuable or issued upon conversion or
exchange of other equity securities of the Company into which the
Series A/B Preferred Units shall be reclassified or changed,
including by reason of a merger, consolidation, reorganization,
recapitalization or statutory conversion then outstanding which are
then owned by any Member, including any other Person who is a
permitted transferee of such holder under the terms of the
Operating Agreement; (ii) any common equity securities of the
Company then outstanding which were issued as, or were issued
directly or indirectly upon the conversion, exchange or exercise of
other equity securities issued or issuable as a dividend, stock
split or other distribution with respect or in replacement of any
equity securities referred to in (i) of this definition.
“ Series C Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) any common equity securities of the Company issuable upon
conversion or exchange of the Series C Preferred Units, or issuable
or issued upon conversion or exchange of other equity securities of
the Company into which the Series C Preferred Units shall be
reclassified or changed, including by reason of a merger,
consolidation, reorganization, recapitalization or statutory
conversion then outstanding which are then owned by any Member,
including any other Person who is a permitted transferee of such
holder under the terms of the Operating Agreement; (ii) any common
equity securities of the Company then outstanding which were issued
as, or were issued directly or indirectly upon the conversion,
exchange or exercise of other equity securities issued or issuable
as a dividend, stock split or other distribution with respect or in
replacement of any equity securities referred to in (i) of this
definition.
“ Series D Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) any common equity securities of the Company issuable upon
conversion or exchange of the Series D Preferred Units, or issuable
or issued upon conversion or exchange of other equity securities of
the Company into which the Series D Preferred Units shall be
reclassified or changed, including by reason of a merger,
consolidation, reorganization, recapitalization or statutory
conversion then outstanding which are then owned by any Member,
including any other Person who is a permitted transferee of such
holder under the terms of the Operating Agreement; (ii) any common
equity securities of the Company then outstanding which were issued
as, or were issued directly or indirectly upon the conversion,
exchange or exercise of other equity securities issued or issuable
as a dividend, stock split or other distribution with respect or in
replacement of any equity securities referred to in (i) of this
definition.
“ Warrant Registrable
Securities ” means at any time, any of the following
owned by any equity holder of the Company party to this Agreement:
(i) any common equity securities of the Company issuable upon the
exercise or exchange of the Warrants, or issuable or
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issued upon conversion or exchange of other
equity securities of the Company into which the Warrants shall be
reclassified or changed, including by reason of a merger,
consolidation, reorganization, recapitalization or statutory
conversion then outstanding which are then owned by any Member,
including any other Person who is a permitted transferee of such
holder under the terms of the Operating Agreement and the
applicable Warrant; (ii) any common equity securities of the
Company then outstanding which were issued as, or were issued
directly or indirectly upon the conversion, exchange or exercise of
other equity securities issued or issuable as a dividend, stock
split or other distribution with respect or in replacement of any
equity securities referred to in (i) of this definition.
“ Warrants ”
means (a) the Common Unit Purchase Warrant dated July 6, 2000
issued by the Company to The Bay City Capital Fund II, L.P. for the
purchase of up to 2,181,016 Class One Common Units (which warrant
was exercised in full on July 24, 2000); (b) the Common Unit
Purchase Warrant dated December 18, 2001 issued by the Company to
PharmBay Investors, L.L.C. for the purchase of up to 416,667 Class
One Common Units; (c) the Common Unit Purchase Warrant dated
December 18, 2001 issued by the Company to The Bay City Capital
Fund III, L.P. for the purchase of up to 399,209 Class One Common
Units; and/or (d) the Common Unit Purchase Warrant dated December
18, 2001 issued by the Company to Bay City Capital Fund III
Coinvestment Fund, L.P. for the purchase of up to 17,458 Class One
Common Units.
2. Demand Registration
.
2.1 Long-Form Registrations
.
(a) Subject to the terms of this
Agreement, at any time after the earlier to occur of (i) July 21,
2007 or (ii) 180 days following the consummation of initial Public
Offering of the Company’s common equity, the holders of at
least a majority of the Series A/B Registrable Securities and the
Warrant Registrable Securities, taken together, may request
registration under the Securities Act of all or part of their then
outstanding Registrable Securities represented by such Series A/B
Registrable Securities and the Warrant Registrable Securities on
Form S-1 or S-2 or any similar long-form registration.
(b) Subject to the terms of this
Agreement, commencing at anytime following the 180th day after
initial Public Offering of the Company’s common equity, the
holders of at least forty percent (40%), in each case, calculated
on a fully-diluted basis, of either the Series C Registrable
Securities or the Series D Registrable Securities may request
registration under the Securities Act of all or part of their then
outstanding Registrable Securities on Form S-1 or S-2 or any
similar long-form registration; provided, that with respect
to any demands under this clause (b) the anticipated aggregate
offering price of the Registrable Securities covered by such
registration exceeds $25,000,000.
(c) Within ten (10) days after
receipt of any written request pursuant to this Section 2.1, the
Company will give written notice of such request to all other
holders of Registrable Securities and will use its reasonable best
efforts to include in such registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion within thirty (30) days after delivery of the
Company’s notice, and, thereupon the
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Company will use its reasonable best efforts to
effect, at the earliest possible date, the registration under the
Securities Act. All registrations requested pursuant to this
Section 2.1 are referred to herein as “ Long-Form Demand
Registrations .” The Company shall not be obligated to
effect more than five (5) Long-Form Demand Registrations pursuant
to this Section 2.1 (three (3) of which shall be allocated to the
holders of the Series A/B Registrable Securities and Warrant
Registrable Securities, one (1) of which shall be allocated to the
holders of Series C Registrable Securities, and one (1) of which
shall be allocated to the holders of Series D Registrable
Securities).
2.2 Short-Form Registrations.
In addition to the Long-Form Demand Registrations provided pursuant
to Section 2.1 above, commencing the date on which the Company
becomes eligible to register securities issued by it on a Form S-3
or any similar short-form registration, the holders of at least
thirty percent (30%) of the Registrable Securities then outstanding
will be entitled to request registrations under the Securities Act
of all or part of their Registrable Securities on Form S-3, if
available to the Company, or any similar short-form registration
(“ Short-Form Demand Registrations ” and,
together with the Long-Form Demand Registrations, “ Demand
Registrations ”); provided, however , that the
anticipated aggregate offering amount of the Registrable Securities
included in any such Short Form Registration exceeds $2,000,000.
Within ten (10) days after receipt of any request pursuant to this
Section 2.2, the Company will give written notice of such request
to all other holders of Registrable Securities and will use
reasonable best efforts to include in such registration all
Registrable Securities with respect to which the Company has
received written requests for inclusion within ten (10) days after
delivery of the Company’s notice. Once the Company has become
subject to the reporting requirements of the Exchange Act, the
Company will use its reasonable best efforts to make Short-Form
Demand Registrations available for the sale of Registrable
Securities. Demand Registrations will be Short-Form Demand
Registrations whenever the Company is permitted to use any
applicable short form. If a Short-Form Demand Registration is to be
an underwritten Public Offering, and if the underwriters for
marketing or other reasons request the inclusion in the
registration statement of information which is not required under
the Securities Act to be included in a registration statement on
the applicable form for the Short-Form Demand Registration, the
Company will provide such information as may be reasonably
requested for inclusion by the underwriters in the Short-Form
Demand Registration.
2.3 Payment of Expenses for
Demand Registrations . The Company will pay all Registration
Expenses (as defined in Section 6 below) for the Demand
Registrations permitted under Sections 2.1 and 2.2. A registration
will not count as a Demand Registration (i) unless a registration
statement with respect thereto has become effective and remained
effective in compliance with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities
covered by such registration statement until the earlier of (x)
such time as all of such Registrable Securities have been disposed
of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement
and (y) 180 days after the effective date of such registration
statement, (ii) if after it has become effective, such registration
is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court
for any reason not attributable to the Selling Holders and has not
thereafter become effective, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived,
other than by reason of a failure on the part of the holders of
the
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Registrable Securities to be registered
thereunder. Notwithstanding anything herein to the contrary, the
Company will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration for which the
Company was obligated to pay.
2.4 Priority . The Company
will not include in any Demand Registration any securities which
are not Registrable Securities without the written consent of the
holders of a majority of the Registrable Securities to be included
in such Demand Registration. If a Demand Registration is an
underwritten Public Offering and the managing underwriters advise
the Company in writing that in their opinion the inclusion of the
number of Registrable Securities and other securities requested to
be included creates a substantial risk that the price per security
will be reduced, the Company will include in such registration,
prior to the inclusion of any securities which are not Registrable
Securities, the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold
without creating such a risk, pro rata among the respective holders
of such Registrable Securities on the basis of the number of
Registrable Securities requested by such holders to be included in
the applicable Demand Registration. In no event will a Demand
Registration pursuant to Section 2.1 count as a Long Form Demand
Registration for purposes of Section 2.1 unless at least forty
percent (40%) of all Registrable Securities requested to be
registered in such Demand Registration by the initiating holders
are, in fact, registered and sold in such registration.
2.5 Restrictions . The
Company will not be obligated to effect any Demand Registration
within one hundred eighty (180) days after the effective date of a
previous Demand Registration. With respect to any Demand
Registration, if (a) the Board of Managers (or similar governing
body) of the Company reasonably and in good faith determines that
such filing would be materially detrimental to the Company or
require a disclosure of a material fact that might reasonably be
expected to have a material adverse effect on the Company or any
plan or proposal by the Company or any of its subsidiaries to
engage in any acquisition or disposition of assets or equity
securities (other than in the ordinary course of business) or any
merger, consolidation, tender offer, material financing or other
significant transaction and (b) the Company shall furnish the
holders of Registrable Securities who have requested a Demand
Registration a certificate signed by an executive officer of the
Company to such effect, the Company may postpone for up to one
hundred twenty (120) days the filing or the effectiveness of a
registration statement for a Demand Registration; provided ,
that the Company may not postpone the filing or effectiveness of a
registration statement for a Demand Registration for more than one
hundred twenty (120) days during any twelve (12) month
period.
2.6 Selection of
Underwriters. The holders of a majority of the Registrable
Securities with respect to which a Demand Registration (other than
a Demand Registration in respect of the Company’s initial
Public Offering) has been initiated shall have the right to select
the investment banker(s) and manager(s) to administer the offering,
subject to the Company’s approval which will not be
unreasonably withheld or delayed
2.7 Shelf Registration . In
addition to the Demand Registrations and commencing the date on
which the Company becomes eligible to register securities issued by
it on a Form S-3 or any similar short-form registration, holders of
at least 1,750,000 units/shares of Registrable Securities upon the
completion of the initial Public Offering of the Company’s
common equity, shall be entitled to request that the Company file a
shelf registration statement
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with respect to all or part of their Registrable
Securities pursuant to Rule 415 under the Securities Act (the
“ Shelf Registration ”). The Company shall use
its reasonable best efforts to have the Shelf Registration declared
effective as soon as practicable after such filing, and shall use
its reasonable best efforts to keep the Shelf Registration
effective and updated, from the date such Shelf Registration is
declared effective until the earliest to occur of (a) such time as
all of the Registrable Securities registered thereunder shall cease
to be Registrable Securities, (b) such time as such Registrable
Securities may be sold without restrictive legend under the
applicable provisions of Rule 144 promulgated under the Securities
Act, (c) such time as the holder requesting the Shelf Registration
beneficially owns less than one percent (1%) of the issued and
outstanding equity securities of the Company, and (d) three (3)
years from the date such Shelf Registration is declared effective
(such period, the “ Shelf Registration Effectiveness
Period ”). The Company shall supplement or amend, if
necessary, the Shelf Registration, as required by the instructions
applicable to such registration form or by the Securities Act or as
reasonably requested by the holders of (or any underwriter for) not
less than 51% of the Registrable Securities registered thereunder
and the Company shall furnish to the holders of the Registrable
Securities to which the Shelf Registration relates copies of any
such supplement or amendment prior to its being used and/or filed
with the Commission. The Company shall pay all Registration
Expenses in connection with the Shelf Registration, whether or not
it becomes effective, and whether all, none or some of the
Registrable Securities are sold pursuant to the Shelf Registration.
A Shelf Registration pursuant to this Section 2.7 shall not be
deemed to have been effected (i) unless a Shelf Registration has
become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered thereby and for the Shelf
Registration Effectiveness Period or (ii) if after it has become
effective, the Shelf Registration is interfered with by any stop
order, injunction or other order or requirement of the Commission
or other governmental agency or court for any reason not
attributable to the holders of Registrable Securities and has not
thereafter become effective.
3. Piggyback Registration
.
3.1 Right to Piggyback . At
any time following an initial Public Offering of the
Company’s equity securities, whenever the Company proposes to
register any of its equity securities (or securities that are
convertible into equity securities) under the Securities Act for
its own account or otherwise, and the registration form to be used
may be used for the registration of any Registrable Securities (a
“ Piggyback Registration ”) (except for the
registrations on Form S-8 or Form S-4 or any successor form
thereto), the Company will give written notice, at least thirty
(30) days prior to the proposed filing of such registration
statement, to all holders of the Registrable Securities of its
intention to effect such a registration and will use reasonable
best efforts to include in such registration all Registrable
Securities (in accordance with the priorities set forth in Sections
3.2 and 3.3 below) with respect to which the Company has received
written requests for inclusion spec
