1
Exhibit 10.5
FOURTH AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Fourth Amendment to Registration Rights Agreement ("Amendment No.
4") is made and entered into on this 20th day of January, 1994, by and among
Argus Pharmaceuticals, Inc., a Delaware corporation (the "Company"), Vector
Securities International, Inc., a Delaware corporation ("Vector"), and the
persons and entities whose name appear on the signature pages hereof
(collectively, the "Purchasers").
WHEREAS, the Company and certain of the Purchasers are parties to that
certain Registration Rights Agreement dated August 2, 1989 (as amended, the
"Agreement"), pursuant to which the Company granted such Purchasers certain
registration rights with respect to the shares of common stock, par value $.001
per share ("Common Stock"), that such Purchasers acquired on the conversion of
the Company's Series A and Series B preferred stock, par value $.001 per share;
and
WHEREAS, the Company, certain of the Purchasers and Pacificorp Credit,
Inc., d/b/a Pacific Venture Finance, Inc. ("Pacificorp"), entered into a Waiver
and First Amendment to the Agreement dated April 18, 1990 ("Amendment No. 1"),
which provided Pacificorp with certain registration rights with respect to the
shares of Common Stock that it is entitled to acquire on the exercise of certain
Common Stock purchase warrants; and
WHEREAS, the Company, certain of the Purchasers and certain additional
parties entered into a Second Amendment to the Agreement dated October 31, 1991
("Amendment No. 2"), which provided such additional parties certain registration
rights with respect to the shares of Common Stock that were acquired on the
conversion of the Series C preferred stock, par value $.001 per share; and
WHEREAS, the Company, the Purchasers and Genzyme Corporation, a
Massachusetts corporation ("Genzyme"), entered into a Third Amendment to the
Agreement dated September 10, 1993 ("Amendment No. 3"), which provided Genzyme
with certain registration rights with respect to the shares of Common Stock
acquired by Genzyme pursuant to a Stock Purchase Agreement dated September 10,
1993; and
WHEREAS, the Company and Vector have negotiated the terms of a Stock
Purchase Warrant (the "Vector Warrant"), and the Company has agreed to grant
Vector certain registration rights with respect to the shares of Common Stock to
be acquired on exercise of such Vector Warrant.
NOW THEREFORE, in consideration of the premises and certain other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
2
1. The definition of "Holders" included in Section 1 of the
Agreement is hereby deleted in its entirety and replaced with
the following:
"Holders" shall mean the Purchasers, any persons who are
granted registration rights by the Company subsequent to the
date hereof and any persons who are transferred registration
rights pursuant to Section 2.9 hereof.
2. The definition of "Purchasers" included in Section 1 of the
Agreement is hereby amended to include Vector.
3. The term "Registrable Securities" included in Section 1 of the
Agreement is hereby amended to include the shares of Common
Stock to be issued to Vector from time to time on exercise of
the Vector Warrant.
4. Section 2.3 of the Agreement is hereby deleted in its entirety
and shall read in its entirety as follows:
Amendment of Registration Rights. The Company and the Holders
acknowledge that the terms of this Agreement were based on the
terms of rights to register the Registrable Securities under
the Securities Act of 1933, as amended, granted by the Company
to other stockholders of the Company ("Registration Rights").
The Company hereby agrees that if the Company, after the date
hereof, grants to any person Registration Rights that provide
for terms that are in any manner more favorable to the holder
of such Registration Rights than the equivalent terms of this
Agreement (or if the Company amends or waives any provision of
any Registration Rights existing on the date hereof to provide
for terms that are more favorable to the holder thereof than
the equivalent terms of this Agreement), then the Company
shall amend this Agreement to provide for any (or all) of such
more favorable terms as the Holders shall elect to include
herein.
5. This Amendment No. 4 may be executed in one or more
counterparts and shall be effective when a counterpart
signature page is executed by the Company, Vector and the
holders of 66-2/3% of the outstanding Registrable Securities,
as defined in the Agreement. Except as amended hereby, the
Agreement shall remain in full force and effect.
3
IN WITNESS WHEREOF, the parties have executed and delivered the
Amendment No. 4 as of the date first above written.
ARGUS PHARMACEUTICALS, INC.
By: /s/David M. Leech
David M. Leech, President
VECTOR SECURITIES INTERNATIONAL, INC.
By: /s/D. Theodore Berghorst
D. Theodore Berghorst
Title: Chairman and CEO
ALLSTATE INSURANCE COMPANY
By: /s/Its Authorized Signatories
Its Authorized Signatories
Title: Chairman and CEO
BFC VENTURES LTD. - 1983
By: /s/Lloyd M. Butke
Lloyd M. Butke
Title: General Partner
/s/Luis T. Campos, M.D.
Luis T. Campos, M.D.
R.W. Cunningham, I.R.A.
By: /s/Authorized Signature
Authorized Signature
Title: Vice President
4
ESSEX VENTURE PARTNER, L.P. FUND I
By:
Title:
ESSEX VENTURE PARTNER, L.P. FUND II
By:
Title:
THE GENESIS FUND, LTD.
By: /s/Authorized Signature
Authorized Signature
Title: General Partner
Norman Green
/s/Jeffrey A. Hoffman
Jeffrey A. Hoffman
/s/Miguel Miro-Quesada, M.D.
Miguel Miro-Quesada, M.D.
A.G. Edwards & Sons,
Custodian for Stuart Schube, I.R.A.
By:
Title:
/s/Stuart Schube
Stuart Schube
/s/Authorized Signature
Stuart Schube, Trustee
TRIAD VENTURE LIMITED
By: /s/Authorized Signature
5
Authorized Signature
Title: General Partner
TRIAD VENTURES LIMITED LIMITED II, L.P.
By: /s/Authorized Signature
Authorized Signature
Title: General Partner
UNCO VENTURES, INC.
By: /s/Authorized Signature
Authorized Signature
Title: General Partner
THE WOODLANDS VENTURE CAPITAL
COMPANY
By: /s/Authorized Signature
Authorized Signature
Title: President
THE WOODLANDS VENTURE FUND, L.P.
By: /s/Martin P. Sutter
Martin P. Sutter
Title: Managing General Partner
GENZYME CORPORATION
By: /s/Authorized Signature
Authorized Signature
Title: CEO