SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT
THIS AMENDMENT NO.
1 to the Second Amended and Restated Stockholders’ Agreement
is made as of December 22, 2005 (the “ Effective
Date ”), between P erlegen Sciences, Inc. a
Delaware corporation (the “ Company ”), the
holders of the Company’s Common Stock and Series A
Preferred Stock (each an “ Investor ” and
collectively the “ Investors ”), and the holders
of the Company’s Series B Preferred Stock, Series C
Preferred Stock, and Series D Preferred Stock (each an “
Prior Purchaser ” and collectively the “
Prior Purchasers ”).
WHEREAS,
the Company is entering into the Series D-1 Preferred Stock
Purchase Agreement dated as of even date herewith (the “
Series D-1 Purchase Agreement ”), by and among
the Company and Pfizer Overseas Pharmaceuticals (the “
Purchaser ”), that provided for, among other things,
the sale by the Company and the purchase by the Purchaser of the
Series D-1 Preferred Stock.
WHEREAS,
the obligations in the Series D-1 Purchase Agreement are
conditioned upon the execution and delivery of this
Amendment;
WHEREAS,
the Company, the Investors and the Prior Purchasers are parties to
that certain Second Amended and Restated Stockholders’
Agreement, dated as of February 1, 2005 (the “
Stockholders’ Agreement ”);
WHEREAS,
the parties to the Stockholders’ Agreement desire to amend
the Stockholders’ Agreement pursuant to Section 15 of
the Stockholders’ Agreement to add the Purchaser as a party
and to provide the Purchaser with the rights and obligations
thereunder.
NOW,
THEREFORE , in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The
Company, the Investors holding a majority of the Common Stock and
Series A Preferred Stock (as defined in the
Stockholders’ Agreement), the Prior Purchasers holding a
majority of the Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (as defined in
the Stockholders’ Agreement) hereby amend the
Stockholders’ Agreement to include Pfizer Overseas
Pharmaceuticals as a “ Holder ” thereunder and
to include the Series D-1 Preferred Stock as “
Preferred Stock ” thereunder.
2. The
definition of “ Agreed Rate ,” “ Agreed
Value ,” “ Certificate ,” “
Holders ,” and “ Preferred Stock ”
set forth in Section 1 of the Stockholders’ Agreement
shall be amended in their entirety as set forth below:
“‘
Agreed Rate ’ shall mean the product of (i) 0.20
multiplied by (ii) the result of (a) the number of days in the
period commencing on the day that the Series B Stock,
Series C Stock or Series D Stock or Series D-1
Stock, as applicable, is initially purchased by the Selling
Purchaser and ending on the day immediately preceding the
Section 4 Closing divided by (b) 365.”
“‘
Agreed Value ’ shall mean an amount equal to the sum
of (i) the Original Series B Issue Price, the Original
Series C Issue Price, the Original Series D Issue Price,
or the Original Series D-1 Price as applicable, and
(ii) the product of (a) the Original Series B Issue
Price, the Original Series C Issue Price, the Original
Series D Issue Price or the Original Series D-1 Price, as
applicable, multiplied by (b) the Agreed
Rate.”
“‘
Certificate ’ shall mean the Fourth Amended and
Restated Certificate of Incorporation of the Company, as may be
amended, modified or restated from time to time.”
“‘
Holders ’ shall mean the Purchasers, the Investors and
Pfizer Overseas Pharmaceuticals or, in each case, persons who have
acquired shares from any of such persons or their permitted
transferees or assignees in each case in accordance with the
provisions of this Agreement.”
“‘
Preferred Stock ’ shall have the meaning ascribed to
such term in the recitals to this Agreement and shall include the
Series D-1 Preferred Stock.”
3. Two
additional definitions for “ Original Series D-1
Issue Price ” and “ Series D-1 Stock
” are hereby added to Section 1:
“‘
Original Series D-1 Issue Price ’ shall have the
meaning ascribed to such term in the Certificate.”
“‘
Series D-1 Stock ’ shall mean the Company’s
Series D-1 Preferred Stock, par value
$0.0001.”
4. Sections 2.4(c)(i)
and 2.4(c)(viii) shall be amended in their entirety as set forth
below:
“(i) the
issuance of Common Stock upon the conversion of Series A
Stock, Series B Stock, Series C Stock, Series D
Stock or Series D-1 Stock.”
“(viii) the
issuance or deemed issuance of Common Stock or Preferred Stock upon
exercise or conversion of any options or warrants, or upon the
conversion of convertible securities outstanding as of the date of
the first issuance of the Series D-1 Stock.”
5. Sections 4(b)
and 4(c) shall be amended in their entirety as set forth
below:
“4(b)
Purchase Event Option . Each Purchaser shall have an option
(the “ Purchase Event Option ”) for a period of
ten (10) days from such Purchaser’s receipt of the
Purchase Event Notice to elect to sell all, but not less than all,
of the shares of Series B Stock, Series C Stock,
Series D Stock and Series D-1 Stock owned by such
Purchaser to Affymetrix at a price per share equal to the Agreed
Value. Each Purchaser may exercise its Purchase Event Option by
notifying Affymetrix of such exercise in writing before expiration
of such ten (10) day period, which notice shall state the
number of shares of Series B Stock, Series C Stock,
Series D Stock and Series D-1 Stock owned by such
Purchaser. If a Purchaser provides Affymetrix with such a notice
(each, a “ Selling Purchaser ”), then such
notice shall
constitute an
irrevocable commitment by such Selling Purchaser to sell all of the
shares of Series B Stock, Series C Stock, Series D
Stock and Series D-1 Stock owned by such Selling Purchaser to
Affymetrix at a price per share equal to the Agreed
Value.”
“4(c)
Purchase Event Option Closing . On or before the time set
for the Section 4 Closing, each of the Selling Purchasers shall
deliver to Affymetrix certificates representing such Selling
Purchaser’s Series B Stock, Series C Stock,
Series D Stock and Series D-1 Stock, duly endorsed for
transfer or accompanied by duly executed stock powers, free and
clear of all Liens. On or before the Section 4 Closing, each
Selling Purchaser shall represent and warrant to and indemnify
Affymetrix that (i) the agreement containing such
representations, warranties and indemnities has been duly
authorized, executed and delivered by or on behalf of such Selling
Purchaser, (ii) such Selling Purchaser has full power, right
and authority to transfer the shares to be sold by such Selling
Purchaser and to enter into such agreement, (iii) immediately
before the Section 4 Closing, such Selling Purchaser will have
good and valid title to the shares to be sold by such Selling
Purchaser free and clear of all Liens and, upon payment for and
delivery of the shares, Affymetrix will acquire all of the rights
of the Selling Purchaser in the shares to be sold by the Selling
Purchaser and will acquire its interest in such shares free of any
“ adverse claim ” (as defined in
Section 8-102 of the Uniform Commercial Code) and
(iv) delivery of the of the shares to be sold by such Selling
Purchaser to Affymetrix will pass title to such shares free and
clear of any Liens.”
6. Section 15
shall be amended in its entirety as set forth below:
“
Amendments and Waivers . Any term of this Agreement may be
amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of:
(i) as to the Company, the Company, (ii) as to the Investors,
the written consent of the holders of a majority of the outstanding
Common Stock or the Common Stock issued or issuable upon conversion
of the Series A Stock then outstanding held by all the
Investors and (iii) as to the Purchasers, the written consent
of the holders of a majority of the outstanding Common Stock or the
Common Stock issued or issuable upon conversion of the
Series B Stock, Series C Stock, Series D Stock and
Series D-1 Stock, voting as a single class, then outstanding
held by all the Purchasers; provided that each Purchaser or
Investor may waive his, her or its rights hereunder without
obtaining the consent of any other Purchaser or Investor,
respectively. Any amendment or waiver effected in accordance with
this Section 15 shall be binding upon the Purchasers, the
Investors and the Company and their respective successors and
assigns.”
7. All
notices and other communications under the Stockholder’s
Agreement shall be made to Pfizer Overseas Pharmaceuticals at the
address specified below and thereafter at such other address,
notice of which is given in accordance with Section 11 of the
Stockholders’ Agreement:
Pfizer Overseas
Pharmaceuticals
2900 Cork Airport Business Park
Airport Road
Cork, Ireland
Attn: Legal Director
Pfizer Inc.
235 East 42 nd Street
New York, NY 10017
Attn: General Counsel
Pfizer Global
Research and Development
50 Pequot Avenu
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