Exhibit 4.3D
JAZZ PHARMACEUTICALS,
INC.
WAIVER AND AMENDMENT
AGREEMENT
T HIS W AIVER AND A MENDMENT A GREEMENT (the “ Agreement ”) is
made effective as of July 6, 2009 (the “ Effective
Date ”), by and among J AZZ P HARMACEUTICALS , I NC ., a
Delaware corporation (the “ Company ”),
and the undersigned Holders (the “ Consenting
Holders ”).
RECITALS
W HEREAS , the
Company and the Investors are parties to that certain Third Amended
and Restated Investor Rights Agreement made effective as of
June 6, 2007 and as amended (as amended, the “
Investor Rights Agreement ”).
W HEREAS , the
Consenting Holders acknowledge that the Company expects to enter
into a Investor Rights Agreement, as the same may be amended from
time to time (the “ Longitude Rights Agreement
”), with certain entities affiliated with Longitude Capital
Management Co., LLC (the “ Longitude Entities
”), in connection with the entry into by the Company and the
Longitude Entities of a Securities Purchase Agreement (the “
Purchase Agreement ”), dated on or about the
date hereof, pursuant to which the Company anticipates issuing and
selling shares of the Company’s Common Stock (the “
Common Shares ”) and warrants exercisable for
the Company’s Common Stock (the “
Warrants ,” and the shares of the
Company’s Common Stock issuable upon exercise of the
Warrants, the “ Warrant Shares ”). The
Common Shares, together with the Warrant Shares, shall be referred
to herein as the “ Shares .”
W HEREAS , the
Consenting Holders acknowledge that pursuant to the terms of the
Longitude Rights Agreement, the Company will be obligated to
prepare and file one or more registration statements (the “
Resale Registration Statements ”) under the
Securities Act of 1933, as amended (the “ Securities
Act ”), registering the resale of the Shares by the
Longitude Entities (or any subsequent transferees or assignees
thereof), and that the Company will grant to the Longitude Entities
certain piggyback registration rights. As used in this Agreement,
(i) the term “ Shares ” also
includes any securities issued or issuable with respect to any of
the Shares by way of exchange, stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise; and
(ii) the term “ Resale Registration
Statements ” includes (A) any registration
statements filed by the Company under the Securities Act pursuant
to the terms of the Longitude Rights Agreement and (B) any
amendments or supplements to any of such registration statements or
the prospectuses included therein.
W HEREAS , pursuant to Section 4 of the Investor
Rights Agreement, the Holders have under certain circumstances the
right to be notified if the Company decides to Register any of its
Common Stock and to include certain Registrable Securities held by
such Holders in such Registration (and any related qualification
under Blue Sky laws or other compliance), and in any underwriting
involved therein (the “ IRA Piggyback Registration
Rights ”).
W HEREAS , pursuant to Section 15.5 of the Investor
Rights Agreement, the Company and the Consenting Holders (for and
on behalf of all Holders and all Investors) wish to (i) amend
the Investor Rights Agreement as set forth below; and
(ii) waive each of (A) the IRA Piggyback Registration
Rights in connection with the filing of the Resale Registration
Statements and any offerings made pursuant thereto and (B) the
provisions of Section 10 of the Investor Rights Agreement with
respect to the entering into of the Longitude Rights Agreement by
the Company and the grant to Longitude of Registration rights
pursuant thereto.
1
W HEREAS , the
Consenting Holders are holders of at least 60% of the Registrable
Securities held by all Holders and, together with the Company, have
the right, pursuant to Section 15.5 of the Investor Rights
Agreement, to amend the Investor Rights Agreement and to waive
certain provisions thereof.
N OW ,
T HEREFORE
, in consideration of the mutual agreements,
covenants and considerations contained herein, the Company and the
Consenting Holders agree as follows:
AGREEMENT
1. W AIVERS .
1.1 The Consenting Holders hereby waive, for and on
behalf of all Holders and all Investors, the provisions of
Section 10 of the Investor Rights Agreement with respect to
the entering into of the Longitude Rights Agreement by the Company
and the grant to Longitude of Registration rights pursuant thereto.
In furtherance of the foregoing, the Consenting Holders hereby
provide, for and on behalf of all Holders and all Investors,
express written consent to the entering into by the Company of the
Longitude Rights Agreement and to the consummation by the Company
of the transactions contemplated thereby, including but not limited
to the grant of Registration rights to Longitude and the filing of
the Resale Registration Statements pursuant thereto.
1.2 The Consenting Holders hereby further waive, for
and on behalf of all Holders and all Investors, (i) any and
all IRA Piggyback Registration Rights in connection with the filing
of, and any offerings made pursuant to, the Resale Registration
Statements and (ii) any rights to any notices with respect to
the foregoing under the Investor Rights Agreement.
1.3 The foregoing waivers in Sections 1.1 and 1.2
are irrevocable and shall be effective with respect to each Holder
and each Investor, as well as all affiliates, successors, heirs,
executors, administrators and assigns of each such Holder and
Investor.
2. A MENDMENTS TO I NVESTOR R IGHTS A GREEMENT .
2.1 Section 1.24.
Section 1.24 of the Investor
Rights Agreement is hereby amended and restated to read in full as
follows:
“1.24 “ Special
Registration Statement ” shall mean (i) any
registration statement relating to any employee benefit plan;
(ii) with respect to any corporate reorganization or
transaction under Rule 145 of the Securities Act, any registration
statement related to the issuance or resale of securities issued in
such a transaction; (iii) any registration statement related
to stock issued upon conversion of debt securities; (iv) any
Registration effected pursuant to the terms of the Registration
Rights Agreement; (v) any Registration effected pursuant to
the terms of the Kingsbridge Rights Agreement; (vi) any
Registration effected pursuant to the terms of the Longitude Rights
Agreement; or (vii) any WKSI Shelf Registration Statement that
the Company’s Board of Directors shall, in its sole
discretion, designate as a “Special Registration
Statement” for purposes of this Agreement.”
2
2.2 Defined Terms.
Section 1 of the Investor
Rights Agreement is hereby amended to add the following sections
and definitions to the list of defined terms thereunder, each of
which shall read in full as follows:
“1.29 “ Longitude
Rights Agreement ” means that certain Investor Rights
Agreement, dated as of July 7, 2009, by and between the
Company and the parties identified therein, as the same may be
amended from time to time in accordance with the terms
thereof.
1.30 “ Longitude
Holder ” means a holder of Longitude Registrable
Securities.
1.31 “ Longitude
Registrable Securities ” shall have the same meaning
as the meaning ascribed to the term “Registrable
Securities” under the Longitude Rights Agreement.
1.32 “ Piggyback
Registrable Securities ” means all Registrable
Securities under this Agreement and all Longitude Registrable
Securities.”
2.3
Section 4.2(b). Section 4.2(b) of the Investor Rights
Agreement is hereby amended and restated to read in full as
follows:
“(b) Marketing
Limitation in Piggyback Registration. If the
Underwriter’s Representative advises the Holders and the
Longitude Holders seeking Registration of Piggyback Registrable
Securities pursuant to this Section 4 or pursuant to the
Longitude Rights Agreement, as applicable, in writing that market
factors (including, without limitation, the aggregate number of
shares of Common Stock requested to be Registered, the general
condition of the market, and the status of the persons proposing to
sell securities pursuant to the Registration) require a limitation
of the number of shares to be underwritten, the Underwriter’s
Representative (subject to the allocation priority set forth in
Section 4.2(c)) may limit the number of Piggyback Registrable
Securities to be included in such Registration and underwriting to
not less than thirty percent (30%) of the total number of
securities included in such Registration.”
2.4
Section 4.2(c). Section 4.2(c) of the Investor Rights
Agreement is hereby amended and restated to read in full as
follows:
“(c) Allocation of
Shares in Piggyback Registration. If the
Underwriter’s Representa
