FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND REGISTRATION RIGHTS AGREEMENT, dated
as of July 20, 2010 (this “First Amendment”), is by and among Aradigm Corporation, a California
corporation with offices located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Company”), and the
undersigned investors.
WHEREAS, the Company and the undersigned investors are parties to (i) that certain Securities
Purchase Agreement, dated as of June 18, 2010 (the “Securities Purchase Agreement”), upon the terms
and subject to the conditions of which, among other things, the Company issued and sold in a
private placement an aggregate of 34,702,512 shares of the Company’s common stock and warrants to
purchase an aggregate of 7,527,214 shares of the Company’s common stock and (ii) that certain
Registration Rights Agreement, dated as of June 21, 2010 (the “Registration Rights Agreement”),
upon the terms and subject to the conditions of which, among other things, the Company agreed to
provide certain registration rights under the Securities Act of 1933, as amended;
WHEREAS, Section 9(e) of the Securities Purchase Agreement provides that no provision thereof
may be amended or waived other than by an instrument in writing signed by the Company and the
holders of at least 81% of the Registrable Securities (as defined in the Registration Rights
Agreement) and Section 10 of the Registration Rights Agreement provides that provisions thereof may
be amended only with the written consent of the Company and the Required Holders, which is defined
to mean the holders of at least 81% of the Registrable Securities;
WHEREAS, the undersigned investors hold at least 81% of the Registrable Securities; and
WHEREAS, the Company and the undersigned investors have negotiated, agreed and consented to
amend certain provisions of the Securities Purchase Agreement and the Registration Rights Agreement
as set forth in this First Amendment.
NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree and consent to the following:
1. Defined Terms. Unless otherwise defined in this First Amendment, any capitalized
term used herein and not otherwise defined herein shall have the respective meaning ascribed to
such term set forth in the Securities Purchase Agreement.
2. Amendment to Securities Purchase Agreement. Section 4(i) of the Securities
Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(i) Additional Registration Statements. Until the Applicable Date (as
defined below) and at any time thereafter while any Registration Statement is not
effective or the prospectus contained therein is not available for use, the Company
shall not file a registration statement under the 1933 Act (other than any
registration statement on Form S-8) unless such registration statement relates to
the Registrable Securities (other than any registration statement on Form S-8);
provided, however that this Section 4(i) shall not in any
way prohibit the Company from (i) filing amendments to registration statements filed
prior to the date of this Agreement so long as any such amendment does not increase
the number of securities covered thereby or effect the issuance of any securities
thereunder (other than pursuant to any registration statement on Form S-8) or (ii)
including on any registration statement that relates to the Registrable Securities
up to 26,000,000 additional shares of common stock, no par value, of the Company
issued or issuable to Novo Nordisk A/S and/or its designee in connection with any
transaction contemplating the cancellation of that certain Promissory Note and
Security Agreement, dated as of July 3, 2006, by and between the Company and Novo
Nordisk A/S. “Applicable Date” means the earlier of (i) the first date on which the
resale by the Buyers of all Registrable Securities is covered by one or more
effective Registration Statements (as defined in the Registration Rights Agreement)
(and each prospectus contained therein is available for use on such date) and
(ii) the date on which the Buyers of all Registrable Securities can freely sell such
Registrable Securities under Rule 144.”
3. Amendments to Registration Rights Agreement.
(a) Section 1(d) of the Registration Rights Agreement is hereby amended and restated in its
entirety to read as follows:
“(d) “Effectiveness Deadline” means (i) with respect to the initial Registration
Statement required to be filed pursuant to Section 2(a), the earlier of the (A) 81st
calendar day after the Closing Date (or the 141st calendar day after the Closing
Date in the event that such Registration Statement is subject to a full review by
the SEC) and (B) 2nd Business Day after the date the Company is notified (orally or
in writing, whichever is earlier) by the SEC that such Registration Statement will
not be reviewed or will not be subject to further review and (ii) with respect to
any additional Registration Statements that may be required to be filed by the
Company pursuant to this Agreement, the earlier of the (A) 60th calendar day
following the date on which the Company was required to file such additional
Registration Statement (or the 120th calendar day after such date in the event that
such Registration Statement is subject to full review by the SEC) and (B) 2nd
Business Day after the date the Company is notified (orally or in writing, whichever
is earlier) by the SEC that such additional Registration Statement will not be
reviewed or will not be subject to further review.”
(b) Section 1(e) of the Registration Rights Agreement is hereby amended and restated in its
entirety to read as follows:
“(e) “Filing Deadline” means (i) with respect to the initial Registration Statement
required to be filed pursuant to Section 2(a), the 51st calendar day after the
Closing Date and (ii) with respect to any additional Registration Statements that
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may be required to be filed by the Company pursuant to this Agreement, the date on
which the Company was required to file such additional Registration Statement
pursuant to the terms of this Agreement.”
(c) Section 2(i) of the Registration Rights Agreement is hereby amended and restated in its
entirety to read as follows:
“(i) No Inclusion of Other Securities. In no event shall the Company include
any securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Required Holders, except that the Company
shall be permitted to include on any such Registration Statement up to 26,000,000
additional shares of common stock, no par value, of the Company issued or issuable
to Novo Nordisk A/S and/or its designee in connection with any transaction
contemplating the cancellation of that certain Promissory Note and Security
Agreement, dated as of July 3, 2006, by and between the Company and Novo Nordisk
A/S.”
4. Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this First Amendment shall be governed by the internal laws of the State of
New York, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the application of the laws
of any jurisdictions other than the State of New York.
5. Effectiveness. The amendments set forth in this First Amendment shall be effective
on the date on which the Company and investors holding at least 81% of the Registrable Securities
shall have signed and delivered their respective counterparts to this First Amendment. Except as
expressly amended by this First Amendment, the Securities Purchase Agreement and the Registration
Rights Agreement shall each remain in full force and effect.
6. Counterparts. This First Amendment may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party. In
the event that any signature is delivered by facsimile transmission or by an e-mail which contains
a portable document format (.pdf) file of an executed signature page, such signature page shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such signature page were an original thereof.
7. Headings. The headings of this First Amendment are for convenience of reference
and shall not form part of, or affect the interpretation of, this First Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, the Company and each undersigned investor have caused their respective
signature pages to this First Amendment to be duly executed as of the date first written above.
COMPANY:
| ARADIGM CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
INVESTORS:
FIRST EAGLE VALUE IN BIOTECHNOLOGY MASTER FUND, LTD.
| By: | ||||
| Name: | ||||
| Title: | ||||
| DEF ASSOCIATES N.V. | 21 APRIL FUND, L.P. | |||||||||
By:
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By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| 21 APRIL FUND, LTD. | BISON TRADING, LLC | |||||||||
By:
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By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| THE CONUS FUND, L.P. | THE CONUS FUND (QP), L.P. | |||||||||
By:
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By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| THE CONUS FUND OFFSHORE MASTER FUND LIMITED |
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||||||||
By:
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By: | |||||||||
| Name: | Name: | |||||||||
| Title: | ||||||||||