Exhibit 4.2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Heller, Ehrman, White & McAuliffe
44 Montgomery Street
San Francisco, California 94104
Attention: Virginia Lim, Esq.
CERTIFICATE OF LIMITED PARTNERSHIP
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WE, THE UNDERSIGNED, ALZA DEVELOPMENT CORPORATION ("General Partner")
and MARY M. ROENSCH ("Initial Limited Partner") desire to form a limited
partnership (the "Partnership") pursuant to the California Uniform Limited
Partnership Act, and do hereby certify in accordance with the provisions of
California Corporations Code Section 15502(1)(a) that:
I
The name of the Partnership is ALZA TTS RESEARCH PARTNERS, LTD.
II
The character of the business is to develop, obtain regulatory approval
for, license, manufacture and market pharmaceutical products combining
transdermal therapeutic systems technology with selected drug compounds.
III
The location of the principal place of business of the Partnership
initially shall be 950 Page Mill Road,
Palo Alto, California 94304, and thereafter such other place or places as the
General Partner may from time to time determine.
IV
The class, name and place of residence of each partner ("Partner") of
the Partnership is set forth on Schedule A attached hereto and incorporated
herein by this reference. The Partnership shall have two classes of limited
partners ("Limited Partners"): Class A Limited Partners and a Class B
Limited Partner.
V
The Partnership shall continue until January 31, 2004 unless sooner
terminated upon the occurrence of any one or more of the following events:
(a) the resignation, removal, withdrawal or bankruptcy of the General
Partner, unless the Limited Partners elect, within 90 days thereafter, to
carry on the business of the Partnership and elect a successor General
Partner by the affirmative vote or written consent of a majority of the
Partnership Capital Percentages of the Limited Partners;
(b) the affirmative vote or written consent of a majority of the
Partnership Capital Percentages of the Limited Partners voluntarily to
dissolve the Partnership, but only after all of the capital contributions of
the Partners, and any interest or other income earned on temporary
investments thereof, have been expended;
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(c) the sale (by means other than entering into of one or more license
agreements) by the Partnership of all or substantially all of its assets; or
(d) the Partnership is terminated by operation of law or judicial
decree.
"Partnership Capital Percentage" is the proportion that the amount of
each Partner's Capital Contribution (the amount each Partner has agreed to
contribute to the capital of the Partnership) bears to the total of all
Partners' Agreed Capital Contributions.
VI
The amount of cash contributed by each Partner is set forth on Schedule
A. The General Partner is authorized to admit additional Class A Limited
Partners and a Class B Limited Partner (see Article XI below) and shall
prepare an amended Schedule A which sets forth the name, address and capital
contribution of each Partner.
VII
The General Partner may not require any Limited Partner to make
additional contributions to the capital of the Partnership.
VIII
The contribution of the Initial Class A Limited Partner shall be
returned to her without interest or deduction
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on the date of the admission of any additional Class A Limited Partner, and
her interest in the Partnership thereupon shall be terminated. The capital
contribution of all other Limited Partners shall be returned only upon the
dissolution of the Partnership.
IX
Net losses of the Partnership will be allocated as follows:
(i) first, 99% to the Class A Limited Partners in proportion to their
respective Partnership Capital Percentages as set forth from time to time on
Schedule A (provided however, that no such allocation shall reduce their
respective capital accounts below zero) and one percent to the General
Partner;
(ii) then, if the capital accounts of all of the Class A Limited
Partners have been reduced to zero, 99% to the Class B Limited Partner
(provided however, that no such allocation shall reduce its capital account
below zero), and one percent to the General Partner; and
(iii) thereafter, if the capital account of the Class B Limited Partner
has been reduced to zero, 100% to the General Partner.
Net income of the Partnership will be allocated to the Partners to the extent
of, in proportion to and in the inverse order of net losses previously
allocated; thereafter, to the Partners
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in proportion to their respective Partnership Capital Percentages.
As soon as practicable after the close of each calendar quarter, the
General Partner shall distribute Excess Cash to the Partners in proportion to
their respective Partnership Capital Percentages. "Excess Cash" is defined
as all cash funds received by the Partnership in such quarter (other than
funds received as capital contributions and interest or other income earned
on temporary investments thereof) less the sum of all amounts expended during
such quarter by the General Partner in the conduct of the Partnership's
business and such working capital or other reserves or amounts that the
General Partner determines in its sole discretion are necessary or
appropriate for Partnership operations and obligations.
Upon any dissolution or termination of the Partnership, the proceeds
from the sale of assets available for distribution to the Partners shall be
distributed in accordance with Section 9.1 of the Agreement of Limited
Partnership, which provides, in part, as follows:
9.1 WINDING UP THE PARTNERSHIP. If the Partnership terminates, the
Partnership immediately shall commence to wind up its affairs. The assets of
the Partnership shall be applied in the following order:
(a) Payment to creditors of the Partnership, other than
Partners, in the order of priority provided by law. In the discretion
of the General Partner, reserves may be established to meet any
contingent obligations or liabilities and, if and
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when such contingencies shall cease to exist, any remaining assets in
such reserves shall be distributed as provided in this Section 9.1.
(b) Payment to each Limited Partner of any credit balance in
such Limited Partner's Capital Account.
(c) Payment to the General Partner of any credit balance in its
Capital Account or payment to the Limited Partners, in proportion to
their Partnership Capital Percentages, of the total amount of any debit
balance in the General Partner's Capital Account.
(d) Payment to the Partners of any remaining assets in
proportion to their respective Partnership Capital Percentages.
X
The right of a Limited Partner to substitute an assignee in his place
and the terms and conditions of such substitution are set forth in Article 6
of the Agreement of Limited Partnership, the applicable sections of which
provide as follows:
6.1 TRANSFER OF INTERESTS. The Partnership Interest of a Partner shall
not be sold, assigned, transferred or encumbered, except as provided in this
Agreement. A Partner's "Interest" shall refer to the entire ownership
interest of the Partner in the Partnership, including the right of such
Partner to any and all benefits to which such Partner may be entitled as
provided in this Agreement, together with the obligations of such Partner to
comply with all of the terms hereof. Any purported transfer or assignment
made other than in accordance with this Agreement shall be null and void and
of no force and effect, at the option of the General Partner. No transfer or
assignment to a minor (except in trust or pursuant to the Uniform Gifts to
Minors Act) shall be effective.
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6.2 DEATH OR INCOMPETENCE OF CLASS A LIMITED PARTNER. Subject to the
provisions of Sections 6.4 and 6.5 and the General Partner's option described
in Article 7, the personal representative or other successor of a deceased or
incompetent Class A Limited Partner shall succeed to the Interest of a Class
A Limited Partner after such representative or successor shall have submitted
to the General Partner certified copies of court orders, or other evidence
satisfactory to the General Partner, establishing such incompetence or death
and the authority of such personal representative or successor; however, such
representative or successor shall not become a substituted Limited Partner
without the consent of the General Partner, which consent may be withheld in
the absolute discretion of the General Partner.
6.3 SALE OR TRANSFER OF INTEREST OF A LIMITED PARTNER.
(a) Subject to any restrictions on transferability required by
law, the provisions of Sections 6.4 and 6.5 hereof and the General Partner's
option described in Article 7 hereof, any Limited Partner may assign or
otherwise transfer such Limited Partner's Interest in the Partnership,
provided:
(i) the transfer of a Class A Limited Partner's Interest
is in an increment of $5,000 of Agreed Capital Contribution, and the
transfer by the Class B Limited Partner is of its entire Interest;
(ii) with respect to a Class A Limited Partner's Interest,
the assignee or transferee meets all requirements set forth in the
Prospectus applicable to additional Class A Limited Partners;
(iii) the General Partner consents in writing to such
assignment or transfer, which consent shall be withheld and may only be
withheld if such assignment or transfer (a) does not satisfy subparagraph
(ii) above, (b) would jeopardize the status of the Partnership for
federal income tax purposes, or (c) would violate, or cause the
Partnership to violate, any applicable law or governmental rule or
regulation, including without limitation, any applicable federal or
state securities law;
(iv) if requested by the General Partner, an opinion from
counsel for the Partnership is delivered to the General Partner stating
that, in the opinion of
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such counsel, such transfer or assignment will not violate or cause the
Partnership to violate, any applicable law or governmental rule or
regulation including, without limitation, any applicable federal or
state securities law;
(v) the full Agreed Capital Contribution of the assignor or
transferor has been paid; and
(vi) prior to the transfer or assignment, the assignor or
transferor reimburses the General Partner and the Partnership for their
expenses, including attorneys' fees, incurred in connection with the
transfer or assignment.
In the event of any such assignment or transfer, such Limited Partner's
assignee or transferee shall be allocated the same percentage of net income
and net losses that the transferring Limited Partner would have been
allocated had no such assignment or transfer been made; however, such
assignee or transferee shall not become a substituted Limited Partner without
the consent of the General Partner, which consent may be withheld in the
absolute discretion of the General Partner.
(b) Each Limited Partner shall indemnify and hold harmless the
Partnership, the General Partner and any Limited Partner who was or is a
party to, or is threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding of any kind whatsoever, by reason of or
arising from any actual or alleged misrepresentation or misstatement of facts
or omission to state facts made or omitted to be made by such Limited Partner
in connection with any assignment, transfer, encumbrance or other disposition
of all or any part of an Interest in the Partnership, or the admission of a
substituted Limited Partner to the Partnership, against expenses for which
the Partnership, the General Partner or any such Limited Partner has not
otherwise been reimbursed including, without limitation, reasonable
attorneys' fees, judgments, fines and amounts paid in settlement, actually
and reasonably incurred in connection with the action, suit or proceeding.
6.4 ASSIGNEE OR TRANSFEREE BOUND BY THIS AGREEMENT. The assignee or
transferee of any Limited Partner's Interest shall be subject to all the
terms, conditions, restrictions and obligations of this Agreement. No
transfer or assignment shall be recognized until and unless the transferee or
assignee shall have so acknowledged in writing to the General Partner in a
manner and form reasonably satisfactory to the General Partner.
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6.5 EFFECTIVE DATE OF TRANSFER. Any assignment which is permitted
hereunder shall be effective as of the close of the calendar month during
which all required documentation is received by the General Partner. In
addition to the conditions set forth above, an assignee, transferee, heir or
legatee of a Limited Partner (to the extent of the Interest acquired from the
Limited Partner) shall become a substituted Limited Partner as that term is
used in the Act only upon the consent of the General Partner and upon the
recording of an amended Certificate of Limited Partnership, if required under
the Act.
XI
The General Partner may admit additional Class A Limited Partners if,
after the admission of such additional Class A Limited Partners, the
aggregate contribution of all of the Class A Limited Partners (excluding the
Initial Class A Limited Partner) would not be less than $12,000,000 or more
than $16,000,000. Each additional Class A Limited Partner must make a
minimum capital contribution of $5,000.
The General Partner may admit one Class B Limited Partner who will make
an Agreed Capital Contribution of $750,000 to the Partnership.
The General Partner has an option, beginning on January 1, 1987 and
expiring ninety days after the dissolution of the Partnership, to purchase
the Partnership interests of all of the Limited Partners as a group. The
General Partner shall pay, upon exercise of the option, a purchase price
calculated as follows:
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7.4 PURCHASE PRICE; PAYMENT.
If the Agreed Capital Contributions of all Limited Partners are
$16,750,000, the aggregate purchase price for the Limited Partners' Interests
will be as follows:
If Exercised During Lump Sum Payment
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calendar year 1987 $ 60,000,000
calendar year 1988 $ 90,000,000
calendar year 1989 and thereafter $120,000,000
less, in each case, an amount equal to all Excess Cash distributed to the
Limited Partners by the Partnership; provided, however, that the lump sum
payment to be made by the General Partner upon any exercise after December
31, 1989 shall in no event be less than $50,000,000. Notwithstanding the
foregoing, if the Agreed Capital Contributions of all Limited Partners are
less than $16,750,000, each of the amounts set forth above shall be reduced
proportionately. On the Closing Date, the General Partner will forward to
each Limited Partner, by check, in United States dollars, such Limited
Partner's proportionate share of the purchase price paid, based on such
Limited Partner's Partnership Capital Percentage.
XII
Net losses and net income shall be allocated as described in Article IX
above.
XIII
The Partnership shall be dissolved on the date on which the General
Partner resigns, is removed or is adjudicated a bankrupt unless the Limited
Partners elect a successor General Partner by the vote or written consent of
a majority of the Partnership Capital Percentage of all Limited Partners.
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XIV
A Limited Partner may, but shall not have the right to, receive property
other than cash in return for such Limited Partner's contribution.
XV
(a) The Limited Partners have the right to vote on the matters
described in Section 15507(b) of the California Corporations Code and the
Partnership matters listed below. Limited Partners holding a majority of
Partnership Capital Percentages of all Limited Partners as a group must vote or
consent to take any of the actions listed.
1. To amend the Partnership Agreement.
2. To consent to the resignation of the General Partner.
3. If and to the extent permitted by law, to elect, within 90 days
after the occurrence of a "Terminating Event", to carry on the business
of the Partnership with one or more substitute general partners. A
Terminating Event shall mean the resignation, removal, withdrawal or
bankruptcy of the General Partner.
4. To elect a new general partner after the occurrence of a
Terminating Event.
5. To terminate the Partnership (other than by a Terminating Event
or at the expiration of its term); provided, however, that such right
shall exist only after all capital contributions to the Partnership by
the Limited Partners (including all interest or other income earned on
temporary investments thereof) have been expended.
6. To remove the General Partner.
7. To approve the sale (by means other than the entering into of
one or more license agreements) of all or substantially all of the
assets of the Partnership.
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8. To approve the sale of the Partnership interest of the General
Partner.
Dated: December 30, 1982.
THE GENERAL PARTNER
ALZA Development Corporation
By /s/ Peter F. Carpenter
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Peter F. Carpenter, President
THE INITIAL CLASS A LIMITED PARTNER
/s/ Mary M. Roensch
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Mary M. Roensch
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SCHEDULE A
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MEMBERS OF THE PARTNERSHIP
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Partnership
Name and Place Capital Capital
Class of Residence Contribution Percentage
- ----- -------------- ------------ -----------
General Partner ALZA Development $ 10 1%
Corporation
950 Page Mill Road
Palo Alto, CA 94304
Initial Class A Mary M. Roensch $990 99%
Limited Partner 2178 Spanishgate Court
San Jose, CA 95132
STATE OF CALIFORNIA )
) ss.
CITY AND COUNTY OF SAN FRANCISCO )
On December 30, 1982, before me, Sharon Ryan, a Notary Public in
and for said County and State, personally appeared Peter F. Carpenter, known
to me to be the President of the corporation that executed the within
instrument, known to me to be the person who executed the within instrument
on behalf of the corporation therein named, and acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and County of San Francisco the day and year in this
certificate above written.
/s/ Sharon Ryan
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Notary Public
State of California
STATE OF CALIFORNIA )
) ss.
CITY AND COUNTY OF SAN FRANCISCO )
On this 30th day of December, 1982, before me, Sharon Ryan, a Notary
Public, State of California, duly commissioned and sworn, personally appeared
Mary M. Roensch, known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the City and County of San Francisco the day and year in this
certificate above written.
/s/ Sharon Ryan
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Notary Public
State of California