EXHIBIT 4.2
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CORCEPT THERAPEUTICS INCORPORATED
AMENDED AND RESTATED INFORMATION AND
REGISTRATION RIGHTS AGREEMENT
May 8, 2001
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TABLE OF CONTENTS
Pages
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1. Certain Definitions ................................................... 2
1.1 "Commission" ..................................................... 2
1.2 "Convertible Securities" ......................................... 2
1.3 "Exchange Act" ................................................... 2
1.4 "Form S-3" ....................................................... 2
1.5 "Holder" ......................................................... 2
1.6 "Initiating Holders" ............................................. 2
1.7 "Material Adverse Event" ......................................... 2
1.8 "New Securities" ................................................. 2
1.9 The terms "Register", "Registered", and "Registration" ........... 3
1.10 "Registrable Securities" ......................................... 3
1.11 "Registration Expenses" .......................................... 3
1.12 "Securities Act" ................................................. 3
1.13 "Selling Expenses" ............................................... 3
2. Financial Statements .................................................. 4
3. Additional Information ................................................ 4
4. Termination of Covenants .............................................. 4
5. Demand Registration ................................................... 5
5.1 Request for Registration on Form Other Than Form S-3 ............. 5
5.2 Request for Registration on Form S-3 ............................. 5
5.3 Right of Deferral ................................................ 6
5.4 Registration of Other Securities in Demand Registration .......... 6
5.5 Underwriting in Demand Registration .............................. 6
5.6 Blue Sky in Demand Registration .................................. 8
6. Piggyback Registration ................................................ 8
6.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities ....................................................... 8
6.2 Underwriting in Piggyback Registration ........................... 8
7. Expenses of Registration .............................................. 10
8. Registration Procedures and Obligations ............................... 10
9. Termination of Registration Rights: ................................... 12
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10. Information Furnished by Holder ..................................... 12
11. Indemnification ..................................................... 12
11.1 Company's Indemnification of Holders .......................... 12
11.2 Holder's Indemnification of Company ........................... 13
11.3 Indemnification Procedure ..................................... 14
11.4 Contribution .................................................. 14
11.5 Conflicts ..................................................... 15
11.6 Survival of Obligations ....................................... 15
12. Limitations on Registration Rights Granted to Other Securities ...... 15
13. Transfer of Rights .................................................. 15
14. Market Stand-off .................................................... 16
15. No-Action Letter or Opinion of Counsel in Lieu of Registration;
Conversion of Preferred Stock ....................................... 16
16. Reports Under the Exchange Act ...................................... 16
17. Miscellaneous ....................................................... 17
17.1 Governing Law ................................................. 19
17.2 Counterparts .................................................. 19
17.3 Headings ...................................................... 19
17.4 Notices ....................................................... 19
17.5 Amendment of Agreement ........................................ 19
17.6 Severability .................................................. 19
17.7 Entire Agreement; Successors and Assigns ...................... 19
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CORCEPT THERAPEUTICS INCORPORATED
AMENDED AND RESTATED INFORMATION AND
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INFORMATION AND REGISTRATION RIGHTS AGREEMENT
(the "Agreement") is made as of May 8, 2001 by and among Corcept Therapeutics
Incorporated, a Delaware corporation (the "Company") and the persons listed on
the attached Exhibit A who become signatories to this Agreement (collectively,
the "Investors").
RECITALS
A. In connection with the sale by the Company of its Series A and Series B
Preferred Stock, the Company and certain of the Investors entered into the
Information and Registration Rights Agreement and Amended and Restated
Registration Rights Agreement dated as of May 28, 1999 and January 25, 2000,
respectively (collectively, the "Previous Agreements").
B. The Company issued those certain Convertible Promissory Notes,
convertible into Series BB Preferred Stock, to certain of the Investors, dated
as of December 13, 2000, December 18, 2000 and January 4, 2001 (collectively the
"Notes").
C. In connection with the conversion of the Notes and the issuance of
Series BB Preferred Stock, the Company and certain of the Investors desire to
provide for the rights of the Investors with respect to information about the
Company and registration of the Common Stock issued upon conversion of the
Series BB Preferred Stock according to the terms of this Agreement.
D. The Company and certain of the Investors have entered into a Stock
Purchase Agreement for sale by the Company and purchase by the Investors of the
Company's Series C Preferred Stock (the "Purchase Agreement").
E. In connection with the purchase and sale of the Company's Series C
Preferred Stock, the Company and the Investors desire to provide for the rights
of the Investors with respect to information about the Company and registration
of the Common Stock issued upon conversion of the securities according to the
terms of this Agreement. In addition, the Investors who were signatories to the
Previous Agreements desire to restate that certain Previous Agreement entered
into as of January 25, 2000 in its entirety as set forth below and consent to
the addition as parties to this Agreement the Investors who purchase the
Company's Series BB and Series C Preferred Stock.
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THE PARTIES AGREE AS FOLLOWS:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.2 "Convertible Securities" shall mean the shares of Series A Preferred
Stock, Series B Preferred Stock, Series BB Preferred Stock or Series C Preferred
Stock purchased by the Investors.
1.3 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.4 "Form S-3" shall mean Form S-3 issued by the Commission or any
substantially similar form then in effect.
1.5 "Holder" shall mean any holder of outstanding Registrable Securities
which have not been sold to the public, but only if such holder is one of the
Investors or an assignee or transferee of registration rights as permitted by
Section 13.
1.6 "Initiating Holders" shall mean Holders who in the aggregate hold at
least 50% of the Registrable Securities.
1.7 "Material Adverse Event" shall mean an occurrence having a consequence
that either (a) is materially adverse as to the business, properties, prospects,
or financial condition of the Company or (b) is reasonably foreseeable, has a
reasonable likelihood of occurring, and if it were to occur might materially
adversely affect the business, properties, prospects, or financial condition of
the Company.
1.8 "New Securities" shall mean any capital stock of the Company, whether
authorized or not, and any rights, options, or warrants to purchase said capital
stock, and securities of any type whatsoever that are, or may become,
convertible into said capital stock; provided that "New Securities" does not
include (i) the issuance of securities to employees, consultants, advisors,
officers or directors pursuant to stock purchase, stock option plans or other
agreements approved by the Board of Directors (including options granted prior
to the issuance of Series C Preferred Stock), and vendors or customers of the
Company pursuant to plans or agreements approved by the Board of Directors,
provided, however, that any increase in the option pool above 2,000,000 shares
shall have been approved by not less than 66 2/3% of the outstanding Convertible
Securities, voting together as a single class; (ii) the issuance of securities
in connection with acquisition transactions; (iii) the issuance of securities to
financial institutions or
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lessors in connection with commercial credit arrangements, equipment financings
or similar transactions; (iv) Convertible Securities outstanding as of the date
hereof or issued or issuable pursuant to the Purchase Agreement or the Common
Stock issuable upon conversion of the Convertible Securities, (v) the issuance
of securities offered to the public generally, pursuant to a registration
statement under the Securities Act; (vi) the issuance of securities pursuant to
currently outstanding options, warrants, notes, or other rights to acquire
securities of the Company; (vii) the issuances of securities in connection with
strategic alliances approved by the Board of Directors; (viii) the issuance of
Series BB Preferred Stock upon conversion of the Notes; or (ix) securities
issued pursuant to a stock dividend, stock split, or similar transaction.
1.9 The terms "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a registration statement on Form
▇-▇, ▇▇-▇ or S-3 (or any successor form thereto) in compliance with the
Securities Act of 1933, as amended ("Registration Statement"), and the
declaration or ordering of the effectiveness of such Registration Statement.
1.10 "Registrable Securities" shall mean all Common Stock not previously
sold to the public and issued or issuable upon conversion or exercise of any of
the Company's Convertible Securities purchased by or issued to the Investors,
including Common Stock issued pursuant to stock splits, stock dividends and
similar distributions, and any securities of the Company granted registration
rights pursuant to Section 12 of this Agreement; provided that Registrable
Securities shall not include any shares of Common Stock which are eligible to be
sold by a Holder under Rule 144 promulgated under the Securities Act within any
three month period without volume limitations or under Rule 144(k) promulgated
under the Securities Act.
1.11 "Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 5 or 6 of this Agreement, including, without
limitation, all federal and state registration, qualification, and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration.
1.12 "Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.13 "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to this
Agreement.
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2. Financial Statements. The Company shall deliver to each Investor or
group of Investors that hold in the aggregate with its substantially related
entities not less than 200,000 shares of Convertible Securities or Common Stock
issuable upon conversion of the Convertible Securities, as soon as practicable
after the end of each fiscal year of the Company, and in any event within 90
days thereafter, an audited balance sheet of the Company as of the end of such
year and audited statements of income, stockholders' equity and cash flow for
such year, which year-end financial reports shall be in reasonable detail and
shall be prepared in accordance with generally accepted accounting principles
and accompanied by the opinion of independent public accountants of nationally
recognized standing selected by the Company.
3. Additional Information. The Company will deliver to each Investor or
group of Investors that hold in the aggregate with its substantially related
entities not less than 200,000 shares of Convertible Securities or Common Stock
issuable upon conversion of the Convertible Securities:
(a) as soon as practicable after the end of each of the first three
quarters of any fiscal year, and in any event within 45 days thereafter, balance
sheets of the Company as of the end of such quarter, and statements of income
and cash flow for such quarter and for the current fiscal year to date, prepared
in accordance with generally accepted accounting principles (other than for
accompanying notes), subject to changes resulting from year-end audit
adjustment;
(b) as soon as practicable following submission to and approval by the
Board of Directors of the Company, but in no event later than 60 days after the
end of each fiscal year, an operating budget and plan (the "Plan") respecting
the next fiscal year and a summary of such Plan together with any update of the
Plan as such update is prepared; and
(c) such other information relating to the financial condition,
business, prospects, or corporate affairs of the Company as the Investor or any
assignee of the Investor may from time to time reasonably request, provided,
however, that the Company shall not be obligated under this subsection (c) or
any other subsection of Section 3 to provide information which it deems in good
faith to be a trade secret or confidential information.
4. Termination of Covenants. The covenants of the Company set forth in
Sections 2 and 3 shall be terminated and be of no further force or effect upon
the earlier of (a) immediately prior to the closing of the first public offering
of the Common Stock of the Company that is effected pursuant to a Registration
Statement filed with, and declared effective by, the Commission under the
Securities Act (other than either a public offering limited solely to employees
of the Company or an offering pursuant to Rule 145
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under the Securities Act) or (b) the date the Company registers any securities
under the Exchange Act, and such covenants shall terminate as to any Investor as
of the date such Investor no longer holds any shares of the capital stock of the
Company.
5. Demand Registration.
5.1 Request for Registration on Form Other Than Form S-3. Subject to
the terms of this Agreement, in the event that the Company shall receive from
the Initiating Holders at any time beginning May 1, 2005 or six months after the
closing of the Company's initial public offering of shares of Common Stock under
a Registration Statement, a written request that the Company effect any
Registration with respect to all or a part of the Registrable Securities on a
form other than Form S-3 for an offering of at least 50% of the then outstanding
Registrable Securities (or any lesser percent if the reasonably anticipated
aggregate offering price to the public, net of Selling Expenses, would exceed
$10,000,000), the Company shall (i) promptly, but in any event within no more
than 20 days, give written notice of the proposed Registration to all other
Holders and (ii) as soon as practicable, use its best efforts to effect
Registration of the Registrable Securities specified in such request, together
with any Registrable Securities of any Holder joining in such request as are
specified in a written request given within 20 days after written notice from
the Company. The Company shall not be obligated to take any action to effect any
such Registration pursuant to this Section 5.1 (i) during the period starting
with the date 60 days prior to the Company's good faith estimated date of
filing, and ending on the date six months immediately following the effective
date of a Registration pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan) provided that the Company is actively employing all
reasonable efforts in good faith to cause such Registration to become effective
or (ii) after the Company has effected one such Registration pursuant to this
Section 5.1 and such Registration has been declared effective.
5.2 Request for Registration on Form S-3. If a Holder or Holders of at
least 33 1/3 % of the outstanding Registrable Securities request that the
Company file a Registration Statement on Form S-3 (or any successor form to Form
S-3) for a public offering of shares of Registrable Securities the aggregate
proposed price to the public of which, net of Selling Expenses, would not be
less than $1,000,000, and the Company is a registrant entitled to use Form S-3
to register the Registrable Securities for such an offering, the Company shall
use all reasonable efforts to cause such Registrable Securities to be Registered
for the offering on such form and to cause such Registrable Securities to be
qualified in such jurisdictions as the Holder or Holders may reasonably request;
provided, however, that the Company shall not be required to effect more than
one Registration pursuant to this Section 5.2 in any 12 month period. The
substantive
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provisions of Section 5.5 shall be applicable to each Registration initiated
under this Section 5.2.
5.3 Right of Deferral. Notwithstanding the foregoing, the Company
shall not be obligated to file a registration statement pursuant to this Section
5:
(a) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
Registration, qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act;
(b) if the Company, within ten days of the receipt of the request of
the Initiating Holders, gives notice of its bona fide intention to effect the
filing of a Registration Statement with the Commission within 60 days of receipt
of such request (other than with respect to a registration statement relating to
a Rule 145 transaction or an offering solely to employees), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
Registration Statement to become effective;
(c) within six months immediately following the effective date of any
Registration Statement pertaining to the securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan); or
(d) if the Company shall furnish to such Holders a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors it would be seriously detrimental to the Company or its
stockholders for a Registration Statement to be filed in the near future, then
the Company's obligation to use its best efforts to file a Registration
Statement shall be deferred for a period not to exceed 90 days from the receipt
of the request to file such registration by such Holder provided that the
Company shall not exercise the right contained in this paragraph (d) more than
once in any 12 month period.
5.4 Registration of Other Securities in Demand Registration. Any
Registration Statement filed pursuant to the request of the Initiating Holders
under this Section 5 may, subject to the provisions of Section 5.5, include
securities of the Company other than Registrable Securities.
5.5 Underwriting in Demand Registration.
(a) Notice of Underwriting. If the Initiating Holders intend to
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distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to this Section 5, and the Company shall include such information in
the written notice
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referred to in Section 5.1 or 5.3. The right of any Holder to Registration
pursuant to Section 5 shall be conditioned upon such Holder's agreement to
participate in such underwriting and the inclusion of such Holder's Registrable
Securities in the underwriting.
(b) Inclusion of Other Holders in Demand Registration. If the Company,
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officers or directors of the Company holding Common Stock other than Registrable
Securities, or holders of securities other than Registrable Securities, request
inclusion in such Registration, the Initiating Holders, to the extent they deem
advisable and consistent with the goals of such Registration, may, in their sole
discretion, on behalf of all Holders, offer to any or all of the Company, such
officers or directors, and such holders of securities other than Registrable
Securities that such securities other than Registrable Securities be included in
the underwriting and may condition such offer on the acceptance by such persons
of the terms of this Section 5. If, however, the number of shares so included
exceeds the number of shares of Registrable Securities included by all Holders,
such Registration shall be treated as governed by Section 6 hereof rather than
Section 5, and it shall not count as a Registration for purposes of Section 8
hereof.
(c) Selection of Underwriter in Demand Registration. The Company shall
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(together with all Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement with the representative
("Underwriter's Representative") of the underwriter or underwriters selected for
such underwriting by the Holders of a majority of the Registrable Securities
being registered by the Initiating Holders and reasonably acceptable to the
Company.
(d) Marketing Limitation in Demand Registration. In the event the
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Underwriter's Representative advises the Initiating Holders 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,
then (i) first, securities other than Registrable Securities and (ii) second,
securities requested to be registered by the Company, shall be excluded from
such Registration to the extent required by such limitation. If a limitation of
the number of shares is still required, the Initiating Holders shall so advise
all Holders and the number of shares of Registrable Securities that may be
included in the Registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities entitled to inclusion in such Registration held by such
Holders at the time of filing the Registration Statement. No Registrable
Securities or other securities excluded from the underwriting by reason of this
Section 5.5(d) shall be included in such Registration Statement.
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(e) Right of Withdrawal in Demand Registration. If any Holder of
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Registrable Securities, or a holder of other securities entitled (upon request)
to be included in such Registration, disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the Underwriter's Representative and the Initiating Holders
delivered at least seven days prior to the effective date of the Registration
Statement. The securities so withdrawn shall also be withdrawn from the
Registration Statement.
5.6 Blue Sky in Demand Registration. In the event of any Registration
pursuant to Section 5, the Company will exercise its best efforts to Register
and qualify the securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate for the distribution of such securities; provided, however, that (i)
the Company shall not be required to do business or to file a general consent to
service of process in any such states or jurisdictions, and (ii) notwithstanding
anything in this Agreement to the contrary, in the event any jurisdiction in
which the securities shall be qualified imposes a non-waivable requirement that
expenses incurred in the connection with the qualification of the securities be
borne by selling stockholders, such expenses shall be payable pro rata by
selling stockholders.
6. Piggyback Registration.
6.1 Notice of Piggyback Registration and Inclusion of Registrable
Securities. Subject to the terms of this Agreement, if the Company decides to
Register any of its Common Stock (either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights) on a form that would be suitable for a registration involving solely
Registrable Securities, the Company will: (i) promptly give each Holder written
notice thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable Blue
Sky or other state securities laws) and (ii) include in such Registration (and
any related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within 20 days after
delivery of such written notice from the Company.
6.2 Underwriting in Piggyback Registration.
(a) Notice of Underwriting in Piggyback Registration. If the
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Registration of which the Company gives notice is for a Registered public
offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 6.1. In such event, the
right of any Holder to Registration shall be conditioned upon such underwriting
and the inclusion of such
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Holder's Registrable Securities in such underwriting to the extent provided in
this Section 6. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement with the Underwriter's Representative for such offering.
The Holders shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Section 6.
(b) Marketing Limitation in Piggyback Registration. In the event the
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Underwriter's Representative advises the Holders seeking registration of
Registrable Securities pursuant to this Section 6 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 6.2(c)) may:
(i) in the case of the Company's initial Registered public
offering, exclude some or all Registrable Securities from such registration and
underwriting; and
(ii) in the case of any Registered public offering subsequent to
the initial public offering, limit the number of shares of Registrable
Securities to be included in such Registration and underwriting to not less than
20% of the securities included in such Registration.
(c) Allocation of Shares in Piggyback Registration. In the event that
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the Underwriter's Representative limits the number of shares to be included in a
Registration pursuant to Section 6.2(b), the number of shares to be included in
such Registration shall be allocated (subject to Section 6.2(b)) in the
following manner: the number of shares that may be included in the Registration
and underwriting by selling stockholders shall be allocated among all Holders
thereof and other holders of securities (other than Registrable Securities)
requesting and legally entitled to include such securities in such Registration,
in proportion, as nearly as practicable, to the respective amounts of securities
(including Registrable Securities) which such Holders and such other holders
would otherwise be entitled to include in such Registration. No Registrable
Securities or other securities excluded from the underwriting by reason of this
Section 6.2(c) shall be included in the Registration Statement.
(d) Withdrawal in Piggyback Registration. If any Holder disapproves of
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the terms of any such underwriting, such person may elect to withdraw therefrom
by written notice to the Company and the Underwriter's Representative delivered
at least seven days prior to the effective date of the Registration Statement.
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Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such Registration.
7. Expenses of Registration. All Registration Expenses incurred in
connection with one Registration pursuant to each of Section 5.1 and 5.2 and any
registration pursuant to Section 6, shall be borne by the Company including the
reasonable fees and expenses of one special counsel to the Selling Holders, up
to an amount not to exceed $25,000. All Registration Expenses incurred in
connection with any other Registration, qualification, or compliance, shall be
apportioned among the Holders, other holders of the securities so registered
and, if it participates, the Company on the basis of the number of shares so
registered. Notwithstanding the above, the Company shall not be required to pay
for any expenses of any Registration proceeding begun pursuant to Section 5 if
the Registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered (which Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand Registration pursuant to
Section 5; provided further, however, that if at the time of such withdrawal,
the Holders have learned of a Material Adverse Event with respect to the
condition, business, or prospects of the Company not known to the Holders at the
time of their request, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 5. All Selling
Expenses shall be borne by the holders of the securities Registered pro rata on
the basis of the number of shares Registered.
8. Registration Procedures and Obligations. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its reasonable best efforts to
cause such Registration Statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered thereunder,
keep such Registration Statement effective for up to 120 days.
(b) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
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the Securities Act, and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions, and provided further
that in the event any jurisdiction in which the securities shall be qualified
imposes a non-waivable requirement that expenses incurred in connection with the
qualification of the securities be borne by selling stockholders, such expenses
shall be payable pro rata by selling stockholders.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing or, if for any other reason the Company shall have determined that it
shall be necessary during such time period to amend or supplement the
registration statement or the prospectus in order to comply with the Securities
Act, whereupon, in either case, each Holder shall immediately cease to use such
registration statement or prospectus for any purpose and, as promptly as
practicable thereafter, the Company shall prepare and file with the SEC, and
furnish without charge to the appropriate Holders and managing underwriters, if
any, a supplement or amendment to such registration statement or prospectus
which will correct such statement or omission or effect such compliance and such
copies thereof as the Holders and any underwriters may reasonably request
subject to Section 11.2 herein.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such Registration Statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration.
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(h) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or over-the-counter market on
which similar securities issued by the Company are then listed, if applicable.
(i) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered for sale in connection with a registration
pursuant to this Agreement, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, and (ii) a letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters.
9. Termination of Registration Rights: The registration obligations of the
Company will terminate on the earlier of: (i) 4 years after a Registration; or
(ii) with respect to any Holder of registration rights, at such time as all
Registrable Securities of such Holder may be sold within a three-month period
pursuant to Rule 144; or (iii) as to any particular Holder at such time as a
Holder holds Registrable Securities constituting less than one percent (1%) of
the outstanding voting stock of the Company.
10. Information Furnished by Holder. It shall be a condition precedent of
the Company's obligations under this Agreement that each Holder of Registrable
Securities included in any Registration furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder or Holders as
the Company may reasonably request.
11. Indemnification.
11.1 Company's Indemnification of Holders. To the extent permitted by
law, the Company will indemnify each Holder, each of its officers, directors,
and constituent partners, legal counsel for the Holders, and each person
controlling such Holder, with respect to which Registration, qualification, or
compliance of Registrable Securities has been effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter against all claims, losses, damages, liabilities, or actions in
respect thereof (collectively, "Damages") to the extent such Damages arise out
of or are based upon any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus or other document (including any
related Registration Statement) incident to any such Registration,
qualification, or compliance, or are based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
any rule or regulation promulgated under the Securities Act applicable to
12
the Company and relating to action or inaction required of the Company in
connection with any such Registration, qualification, or compliance; and the
Company will reimburse each such Holder, each such underwriter, and each person
who controls any such Holder or underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action; provided, however, that the
indemnity contained in this Section 11.1 shall not apply to amounts paid in
settlement of any such Damages if settlement is effected without the consent of
the Company (which consent shall not unreasonably be withheld); and provided,
further, that the Company will not be liable in any such case to the extent that
any such Damages arise out of or are based upon any untrue statement or omission
based upon written information furnished to the Company by such Holder,
underwriter, or controlling person and stated to be for use in connection with
the offering of securities of the Company.
11.2 Holder's Indemnification of Company. To the extent permitted by
law, each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such Registration, qualification or,
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's securities
covered by such a Registration Statement, each person who controls the Company
or such underwriter within the meaning of the Securities Act, and each other
such Holder, each of its officers, directors, and constituent partners, and each
person controlling such other Holder, against all Damages arising out of or
based upon any untrue statement (or alleged untrue statement) of a material fact
contained in any such Registration Statement, prospectus, offering circular, or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by such Holder of any rule or
regulation promulgated under the Securities Act applicable to such Holder and
relating to action or inaction required of such Holder in connection with any
such Registration, qualification, or compliance, and will reimburse the Company,
such Holders, such directors, officers, partners, persons, law and accounting
firms, underwriters or control persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use in connection with the offering of securities
of the Company, provided, however, that the indemnity contained in this Section
11.2 shall not apply to amounts paid in settlement of any such Damages if
settlement is effected without the consent of such Holder (which consent shall
not be unreasonably withheld) and provided, further, that each Holder's
liability under this Section 11.2 shall not exceed such Holder's
13
proceeds from the offering of securities made in connection with such
Registration, unless due to such Holder's gross negligence or intentional acts
or omissions.
11.3 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 11 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 11, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Investors in conducting the defense of such action, suit, or
proceeding by reason of recognized claims for indemnity under this Section 11,
then counsel for such party shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interest of such party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any liability to the indemnified party under
this Section 11, but the omission so to notify the indemnifying party will not
relieve such party of any liability that such party may have to any indemnified
party otherwise other than under this Section 11. The indemnity agreements
contained in this Section 11 shall not apply to amounts paid in settlement of
any loss, claim, damage, liability or action if such settlement is effected
without the consent of the indemnifying party which consent shall not be
unreasonably withheld.
11.4 Contribution. If the indemnification provided for in this Section
11 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any Damages referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Damages in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such Damages as well as any other relevant equitable considerations;
provided, that each Holder's liability under this Section 11.4 shall not exceed
such Holder's proceeds from the offering of securities made in connection with
such Registration, unless due to such Holder's gross negligence or intentional
acts or omissions. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
14
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
11.5 Conflicts. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
11.6 Survival of Obligations. The obligations of the Company and
Holders under this Section 11 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Agreement or
otherwise.
12. Limitations on Registration Rights Granted to Other Securities. From
and after the date of this Agreement, the Company shall not enter into any
agreement with any holder or prospective holder of any securities of the Company
providing for the granting to such holder of any Registration rights, except
that, with the consent of the Holders of a majority of the Registrable
Securities as defined in Section 1 of this Agreement (calculated on an
as-converted basis), additional holders may be added as parties to this
Agreement with regard to any or all securities of the Company held by them. Any
such additional parties shall execute a counterpart of this Agreement, and upon
execution by such additional parties and by the Company, shall be considered an
Investor for all purposes of this Agreement. The additional parties and the
additional Registrable Securities shall be identified in an amendment to Exhibit
A hereto.
13. Transfer of Rights. The rights to information under Sections 2 and 3,
and the right to cause the Company to Register securities granted by the Company
to the Investors under this Agreement may be assigned by any Holder to a
transferee or assignee of any Convertible Securities or Registrable Securities
not sold to the public acquiring at least 200,000 shares of such Holder's
Registrable Securities (equitably adjusted for any stock splits, subdivisions,
stock dividends, changes, combinations or the like) or less if the shares being
transferred constitute all of such transferring Holder's Registrable Securities;
provided, however, that (i) the shares of Convertible Securities or Registrable
Securities acquired by said transferee must constitute at least 20% of Holder's
aggregate of Convertible Securities and Registrable Securities immediately prior
to the transfer, (ii) the Company must receive written notice prior to the time
of said transfer, stating the name and address of said transferee or assignee
and identifying the securities with respect to which such rights are being
assigned, and (iii) the transferee or assignee of such rights must not be a
person deemed by the Board of Directors of the Company, in its reasonable
judgment, to be a competitor or potential competitor of the Company.
Notwithstanding the limitation set forth in the foregoing sentence respecting
the minimum number of shares which must be transferred, any Holder which is a
partnership may transfer such Holder's Registration rights to such Holder's
constituent
15
partners without restriction as to the number or percentage of shares acquired
by any such constituent partner.
14. Market Stand-off. Each Holder hereby agrees that, if so requested by
the Company and the Underwriter's Representative (if any) in connection with the
Company's initial public offering, such Holder shall not sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise transfer or
dispose of any Registrable Securities or other securities of the Company without
the prior written consent of the Company and the Underwriter's Representative
for such period of time (not to exceed 180 days) following the effective date of
a Registration Statement of the Company filed under the Securities Act as may be
requested by the Underwriter's Representative.
15. No-Action Letter or Opinion of Counsel in Lieu of Registration;
Conversion of Preferred Stock. Notwithstanding anything else in this Agreement,
if the Company shall have obtained from the Commission a "no-action" letter in
which the Commission has indicated that it will take no action if, without
Registration under the Securities Act, any Holder disposes of Registrable
Securities covered by any request for Registration made under this Section in
the specific manner in which such Holder proposes to dispose of the Registrable
Securities included in such request (such as including, without limitation,
inclusion of such Registrable Securities in an underwriting initiated by either
the Company or the Holders) and that such Registrable Securities may be sold to
the public without Registration, or if in the opinion of counsel for the Company
concurred in by counsel for such Holder, which concurrence shall not be
unreasonably withheld, no Registration under the Securities Act is required in
connection with such disposition and that such Registrable Securities may be
sold to the public without Registration, the Registrable Securities included in
such request shall not be eligible for Registration under this Agreement;
provided, however, that any Registrable Securities not so disposed of shall be
eligible for Registration in accordance with the terms of this Agreement with
respect to other proposed dispositions to which this Section 15 does not apply.
The Registration rights of the Holders of the Registrable Securities set forth
in this Agreement are conditioned upon the conversion of the Registrable
Securities with respect to which registration is sought into Common Stock prior
to the effective date of the Registration Statement.
16. Reports Under the Exchange Act. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit a Holder
to sell securities of the Company to the public without Registration or pursuant
to a registration on Form S-3, the Company agrees to:
16
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after 90 days after the
effective date of the first Registration Statement filed by the Company for the
offering of its securities to the public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first Registration Statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, promptly upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the first Registration Statement
filed by the Company), the Securities Act, and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the Commission which permits
the selling of any such securities without Registration or pursuant to such
form.
17. Right of First Offer.
17.1 Right of First Offer of New Securities. The Company hereby grants
to each Investor holding not less than 100,000 shares of Registrable Securities,
as adjusted for stock splits, dividends and the like ("Major Investors") the
right of first offer to purchase up to its "Pro Rata Share" (as defined below)
of New Securities which the Company may, from time to time, propose to sell and
issue. Such Major Investors may purchase said New Securities on the same terms
and at the same price at which the Company proposes to sell the New Securities.
The "Pro Rata Share" of each Major Investor, for purposes of this right of first
offer, is the ratio of (i) the total number of shares of Common Stock held by
such Major Investor (including any shares of Common Stock into which shares of
the Convertible Securities held by such Major Investor are convertible) to (ii)
the total number of shares of Common Stock outstanding immediately
17
prior to the issuance of the New Securities (including any shares of Common
Stock into which outstanding shares of Preferred Stock are convertible).
17.2 Notice. In the event the Company proposes to undertake an
issuance of New Securities, it shall give to each Major Investor written notice
(the "Notice") of its intention, describing the type of New Securities, the
price, the terms upon which the Company proposes to issue the same number of
shares which such Major Investor is entitled to purchase pursuant to Section
17.1, and a statement that each Major Investor shall have 20 days to respond to
such Notice. Each Major Investor shall have 20 days from the date of receipt of
the Notice to agree to purchase any or all of its Pro Rata Share of the New
Securities for the price and upon the terms specified in the Notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased and forwarding payment for such New Securities to the Company if
immediate payment is required by such terms.
17.3 Sale of New Securities. In the event a Major Investor fails to
exercise in full its right of first offer within such 20 day period, the Company
shall have 90 days thereafter to sell or enter into an agreement (pursuant to
which the sale of New Securities covered thereby shall be closed, if at all,
within 60 days after the date of such agreement) to sell the New Securities
respecting which such Major Investor's rights were not exercised, at a price and
upon general terms no more favorable to the purchaser thereof than specified in
the Notice. In the event the Company has not sold the New Securities within such
90 day period (or sold and issued New Securities in accordance with the
foregoing within 60 days from the date of such agreement), the Company shall not
thereafter issue or sell any New Securities without first offering such
securities to such Major Investor in the manner provided above.
17.4 Termination of Right of First Offer. The right of first offer
granted under this Section 17 shall expire upon the first to occur of:
(a) The effective date of a Registration Statement filed by the
Company in connection with a bona fide firm commitment underwritten public
offering of the Company's Common Stock; or
(b) The date on which such Investor or transferee no longer holds
any shares of Convertible Securities or Common Stock.
17.5 Waiver of Right of First Offer. The right of first offer granted
under this Section 17 may be waived with respect to any particular sale of New
Securities as to all Holders or transferees by the holders of a majority of the
Convertible Securities purchased by the Holders (or an equivalent number of
shares consisting of Registrable Securities issued upon conversion or exercise
of the Convertible Securities of the
18
Company or a combination of such Registrable Securities and such Convertible
Securities), as adjusted for recapitalizations, stock splits, stock dividends
and the like.
18. Miscellaneous.
18.1 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California excluding those laws
that direct the application of the laws of another jurisdiction.
18.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18.3 Headings. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
18.4 Notices. Any notice required or permitted hereunder shall be
given in writing and shall be conclusively deemed effectively given upon
personal delivery or delivery by courier, or on the first business day after
transmission if sent by confirmed facsimile transmission, or five days after
deposit in the United States mail, by registered or certified mail, postage
prepaid, addressed (i) if to the Company, as set forth below the Company's name
on the signature page of this Agreement, and (ii) if to an Investor, at such
Investor's address as set forth on the Company's stock records.
18.5 Amendment of Agreement. Any provision of this Agreement may be
amended only by a written instrument signed by the Company and by persons
holding a majority of the Registrable Securities as defined in Section 1 of this
Agreement (calculated on an as-converted basis).
18.6 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
18.7 Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract among the Company and the Investors relative to
the subject matter hereof. Any previous agreement between the Company and any
Investor concerning Registration rights, including the Previous Agreements, is
superseded by this Agreement in its entirety. Subject to the exceptions
specifically set forth in this Agreement, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
executors, administrators, heirs, successor, and permitted assigns of the
parties.
19
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Information and Registration Rights Agreement as of the date first
above written.
Company: CORCEPT THERAPEUTICS INCORPORATED,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Chairman
----------------------------------------
Investor: ▇▇▇▇▇▇ ▇▇▇▇ VENTURES,
a California Limited Partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Managing Director of the General Partner
▇▇▇▇▇▇ HILL ENTREPRENEURS FUND (AI),
L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Managing Director of the General Partner
▇▇▇▇▇▇ ▇▇▇▇ ENTREPRENEURS FUND (QP),
L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Managing Director of the General Partner
20
TOW PARTNERS,
A California Limited Partnership
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Under Power of
-----------------------------------------------
Attorney
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner
ANVEST, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Partner
▇▇▇▇▇▇▇▇ HOLDINGS, L.P.
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
----------------------------------------------
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., General Partner
THE ▇▇▇▇/OTUS REVOCABLE TRUST U/A/D/
4/23/98, ▇▇▇▇▇ ▇▇▇▇, TRUSTEE
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Title: Trustee
----------------------------------------------
THE ▇▇▇▇▇▇▇▇▇ CHARITABLE
REMAINDER UNITRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇▇▇▇, Trustee
21
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------------------------------
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇,
TRUSTEES, THE ▇▇▇▇▇▇▇ ▇. NAD ▇▇▇▇▇
▇.▇. ▇▇▇▇▇ TRUST AGREEMENT DATED
2/24/99
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
THE YOUNGER LIVING TRUST, U/A/D 1/20/95
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., TRUSTEE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
SHV M/P/T/ FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇ FARGO BANK, TRUSTEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: AVP & TO AVP & TO
------------------------------------
SHV M/P/T FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇ FARGO BANK, TRUSTEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: AVP & TO AVP & TO
-------------------------------------
22
SHV M/P/T FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇ FARGO BANK, TRUSTEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: AVP & TO AVP & TO
-------------------------------------------
WYTHES 1999 GRANDCHILDREN'S TRUST,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., AND ▇▇▇▇▇ ▇. ▇▇▇▇▇, TRUSTEES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, under Power of Attorney
THE REED TRAFFORD VETTEL 1999
IRREVOCABLE TRUST; ▇▇▇▇▇ ▇. ▇▇▇▇▇
AND ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., TRUSTEES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Under Power of Attorney
------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TRUSTEES, THE WYTHES LIVING TRUST
(7/21/87)
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Under Power of
------------------------------------------------
Attorney
-----------------------------------------------
23
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997
IRREVOCABLE TRUST, ▇▇▇▇▇ ▇. ▇▇▇▇▇ AND ▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇., TRUSTEES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Under Power of Attorney
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Trustee
THE ▇▇▇▇▇▇▇▇ LIVING TRUST, U/A/D
1/22/98, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, TRUSTEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TRUST, U/D/T SEPTEMBER 27, 1983/(1)/
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
-----------------------
/(1)/ Also singing on behalf of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ West and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustees of the
▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ 1996 Trust dated June 11, 1996 pursuant to the Voting
Agreement dated May 28, 1999.
24
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ AND ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
WEST
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ 1996 TRUST dated
June 11, 1996
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
--------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, M.D.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇ Under Power of Attorney
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
25
/s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Under Power of Attorney
--------------------------------------------------
▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
1999 MELMON FAMILY TRUST, ▇▇▇▇ ▇.
▇▇▇▇▇▇, TRUSTEE
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
----------------------------------------------
Name: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Title: Under Power of Attorney
-------------------------------------------
WHITE FAMILY TRUST DATED 4/3/97, ▇▇▇▇▇
▇. ▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇.▇'▇▇▇▇▇,
TRUSTEES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Title: Trustee
-------------------------------------------
▇▇▇▇▇▇ FAMILY TRUST, ▇▇▇▇▇▇ ▇▇▇▇▇▇
AND ▇▇▇ ▇▇▇▇▇▇, TRUSTEES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title:
------------------------------------------
26
▇▇▇▇▇▇ ▇▇▇▇▇▇ WHITE & ▇▇▇▇▇▇▇▇▇
INVESTORS FUND VI
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇
-----------------------------------------
Title: Manager
-----------------------------------------
ALTA BIOPHARMA PARTNERS II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
------------------------------------------
ALTA EMBARCADERO BIOPHARMA
PARTNERS II, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Managing Director
-----------------------------------------
[rest of page intentionally left blank]
27
MAVERICK FUND, LDC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: CFO of Maverick Capital, Ltd., the
------------------------------------
Investment Advisor
--------------------------------------------
MAVERICK FUND USA, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: CFO of Maverick Capital, Ltd.,
------------------------------------
the Investment Advisor
--------------------------------------------
MAVERICK FUND II, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: CFO of Maverick Capital, Ltd., the
-------------------------------------
Investment Advisor
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[rest of page intentionally left blank]
i
/s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇
[rest of page intentionally left blank]
ii
AMENDED AND RESTATED INFORMATION AND REGISTRATION RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
--------------------------
(Second Closing)
The undersigned hereby executes this counterpart signature page for the
purpose of becoming a party to the Amended and Restated Information and
Registration Rights Agreement (the "Agreement") originally dated as of May 8,
---------
2001, among Corcept Therapeutics Incorporated, a Delaware corporation and the
persons and entities listed on Schedule A attached thereto (the "Holders"). The
-------
undersigned has read the Agreement, and hereby accepts, ratifies, confirms and
agrees to all its terms and conditions, and upon the execution hereof, the
undersigned shall have all of the obligations and rights of a Holder under the
Agreement.
Dated this 25 day of June, 2001 /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇ ▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ C. ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
C. ▇▇▇▇▇ ▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ Stuart Duty
-------------------------------------
Stuart Duty
Dated this 21 day of June, 2001 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust Dated 10/15/92
Dated this 15 day of June, 2001 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
i
Dated this 18 day of June, 2001 /s/ ▇▇▇▇▇ ▇▇▇-Hong ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇-Hong Chan
Dated this 20 day of June, 2001 /s/ ▇▇▇▇▇▇▇▇▇ Hai-I ▇▇▇▇
--------------------------------------
Dated this 22 day of June, 2001 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated this 14 day of June, 2001 /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated this 20 day of June, 2001 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇'▇▇▇▇
Dated this 25 day of June, 2001 /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
---------------------
HEWM Investors, LLC Fund VI by ▇▇▇▇▇ ▇. ▇'▇▇▇▇
▇▇
