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EXHIBIT 10.12
SECOND AMENDED AND RESTATED
VOTING AND CO-SALE AGREEMENT
This SECOND AMENDED AND RESTATED VOTING AND CO-SALE AGREEMENT, which
amends and restates that certain Amended and Restated Voting and Co-Sale
Agreement, dated as of January 11, 1994 (the "Original Agreement"), is dated as
of February 9, 1995, among Myco Pharmaceuticals Inc., a Delaware corporation
(the "Company"), Technology Leaders L.P., Technology Leaders Offshore C.V.,
Bessemer Venture Partners II L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ventures, Comdisco, Inc.,
Pfizer, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, J. ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and the
individuals listed on Exhibit A hereto (collectively, the "Investors") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Ph.D. and individuals listed on Exhibit B hereto (collectively, the
"Shareholders").
WHEREAS the Company is issuing up to 3,000,000 shares of its Series D
Preferred Stock, $.01 par value ("Series D Preferred Stock") at a price of $5.00
per share to certain of the Investors pursuant to a Series D Preferred Stock
Purchase Agreement of even date herewith (the "Stock Purchase Agreement");
WHEREAS the Original Agreement provides for the election of members to
the Company's Board of Directors (the "Board of Directors") and for restrictions
on the terms of any dispositions by the Shareholders of their capital stock of
the Company; and
WHEREAS one of the conditions to the consummation of the transactions
contemplated by the Stock Purchase Agreement by the Investors is the amendment
and restatement of the Original Agreement, to add Pfizer, Inc. as a party and to
make certain other changes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the purchase of the Units by the Investors under the Stock
Purchase Agreement, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
ELECTION OF DIRECTORS AND VOTING
SECTION 1.1. ELECTION OF DIRECTORS. Subject to the Company's Restated
Certificate of Incorporation, at any time at which stockholders of the Company
have the right to or vote for or consent in writing to the election of directors
of the Company, the Investors and the Shareholders hereby agree to vote all
shares of capital stock of the Company presently owned or hereafter acquired by
them in favor of the following actions:
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(a) to cause and maintain the election to the Board of
Directors of four (4) designated representatives of the Investors holding Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series
D Preferred Stock or capital stock issued on conversion or exchange thereof
(collectively, the "Investor Directors"), each of who shall be designated
jointly by Technology Leaders L.P. and Technology Leaders Offshore C.V.
(collectively, the "TL-Funds"), Bessemer Venture Partners II L.P. ("Bessemer"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ventures ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") and Pfizer, Inc. ("Pfizer"); the four
representatives shall be initially ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D.,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇;
(b) to cause and maintain the election of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Ph.D. to the Board of Directors (the "Founder Director") for so long as he is an
officer, employee or otherwise materially involved with the Company; and
(c) to cause and maintain the election to the Board of
Directors of one person, selected by the then-current Chief Executive Officer of
the Company (the "CEO-Designated Director") and approved by holders of at least
60% of the outstanding shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock, voting together as
a single class.
The Company shall cause the nomination for election to the Board of
Directors of the individuals set forth above.
SECTION 1.2. VACANCIES AND REMOVAL. Each of the directors designated in
Section 1.1 shall be elected at any annual or special meeting of stockholders
(or by written consent in lieu of a meeting of stockholders) and shall serve
until his successor is elected and qualified or until his earlier resignation or
removal. Any Investor Director may be removed during his term of office, without
cause, by and only by the affirmative vote or written consent of a majority of
the Board of Directors, which majority shall include a majority of
representatives designated by the TL-Funds, Bessemer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Pfizer.
The Founder Director may be removed during his term of office, without
cause, by and only by the affirmative vote or written consent of the holders of
a majority of the outstanding shares of capital stock of the Company; provided,
that the parties hereto agree that they shall promptly, and shall only, so
remove the Founder Director if and when he shall cease to meet the
qualifications set forth in Section 1.1(b) above as reasonably determined by a
majority of the Board of Directors, which majority shall include a majority of
the representatives designated by the TL-Funds, Bessemer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Pfizer; and
The CEO Designated Director may be removed during his term of
office, without cause, by and only by the affirmative vote or written consent of
the Investors holding at least 60% of the outstanding shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock and the capital stock issued on conversion or exchange thereof,
voting together as a single class.
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Any vacancy in the office of: (a) an Investor Director may be
filled by the vote or written consent of the Investors holding at least 60% of
the outstanding shares of the Series A Preferred Stock and Series B Preferred
Stock and capital stock issued on conversion or exchange thereof, voting
together as a single class; (b) the CEO Designated Director may be filled by
such person as may be approved by the vote or written consent of holders of at
least 60% of the outstanding shares of capital stock, and the parties hereto
agree to vote their shares of capital stock to elect such person as the CEO
Designated Director as is appointed by the Board of Directors to serve as the
Chief Executive Officer of the Company; all in accordance with the Restated
Certificate of Incorporation and By-laws of the Company and the Delaware General
Corporation Law. Pending any vote or written consent of holders of capital stock
provided for in this paragraph, any vacancy in the office of an Investor
Director shall be filled by the vote of a majority of the remaining Investor
Directors and any vacancy in the office of CEO Designated Director or Founder
Director shall be filled by the vote of a majority of the remaining directors
(including the Investor Directors).
Anything to the contrary notwithstanding, any director may be removed
for cause in accordance with the Delaware General Corporation Law.
SECTION 1.3. VOTING BY CERTAIN INVESTORS. Notwithstanding the
provisions of Section 1.1 above, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and J. ▇▇▇▇▇▇ ▇▇▇▇▇,
Inc. each hereby agree to vote all shares of each class of capital stock of the
Company presently owned or hereafter acquired by them in the same proportion as
the votes cast by all other holders of the Company's capital stock of such class
with respect to all matters submitted to the Company's stockholders for vote. To
effectuate such intent, each of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and J. ▇▇▇▇▇▇ ▇▇▇▇▇,
Inc. hereby grants to the Chief Executive Officer of the Company an irrevocable
proxy with full power of substitution, which proxy shall be deemed coupled with
an interest, to vote all of his shares of capital stock of the Company in the
manner set forth in this section.
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ARTICLE II
CO-SALE AND RIGHT OF FIRST REFUSAL
SECTION 2.1. RIGHT OF FIRST REFUSAL OR FIRST OFFER ON SALES.
(a) SALES TO THIRD PARTIES. If at any time a Shareholder
desires to transfer all or any part of the shares of capital stock of the
Company beneficially owned by him (the "Shares") in a privately-negotiated
transaction pursuant to a bona fide offer from a third party (the "Proposed
Transferee"), or pursuant to any intention of the Shareholder to sell or
otherwise transfer to any third party, whether or not identified (the "Proposed
Offer Sale"), the Shareholder shall first deliver a written offer (the "Offer")
to sell such Shares (the "Offered Shares") to the Company and the Investors on
terms and conditions, including price, not less favorable to the Company and the
Investors than those on which the Shareholder proposes to sell such Offered
Shares to the Proposed Transferee or otherwise pursuant to the Proposed Offer
Sale.
The Offer shall disclose the identity of and information about the
Proposed Transferee (if applicable), and the terms of the Proposed Offer Sale
(if applicable), the number of Offered Shares proposed to be sold, the total
number of Shares owned by the Shareholder, the terms and conditions, including
price, of the proposed sale, and any other material facts relating to the
proposed sale which may be requested by the Company. The Offer shall further
state that the Company and the Investors may acquire, in accordance with the
provisions of this Agreement, all or any portion of the Offered Shares for the
price indicated in the Offer and upon the other terms and conditions, including
deferred or installment payment (if applicable), set forth therein.
(b) COMPANY'S RIGHT OF FIRST REFUSAL. Upon receipt of the
Offer, if the Company desires to purchase all or any of the Offered Shares, the
Company shall deliver a written notice of its election to purchase such shares
to the Shareholder and each Investor, which notice shall state the number of
Offered Shares the Company desires to purchase and shall be delivered in person
or mailed to the Shareholder and each Investor within thirty (30) days of the
date of receipt by the Company of the Offer. Such notice shall, when taken in
conjunction with the Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of such Offered Shares to the
Company on the terms of the Offer. The closing of the sale of Offered Shares to
the Company pursuant to this section shall be made at the offices of the Company
on such date as may be agreed by the Company and the Shareholder, but no later
than on or before the 60th day following the date the Offer is received by the
Company (or if such 60th day is not a business day, then on the next succeeding
business day). Such sale shall be effected by the Shareholder's delivery to the
Company of a certificate(s) evidencing the Offered Shares (or any portion
thereof) to be purchased by the Company, duly endorsed for transfer to the
Company, against payment to the Shareholder of the purchase price by the
Company. The exercise or non-exercise by the
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Company of its rights pursuant to this section shall be without prejudice to its
rights under this section with respect to any future sales of Offered Shares.
(C) INVESTORS' RIGHT OF SECOND REFUSAL. Subject to the
Company's right of first refusal, each Investor shall have the absolute right to
purchase that number of the Offered Shares which the Company elects not to
purchase as shall be equal to the number of Offered Shares multiplied by a
fraction, the numerator of which shall be the number of shares of capital stock
(on an as-converted basis) then owned by such Investor (the "Investor Shares"),
as the case may be, and the denominator of which shall be the aggregate number
of shares of capital stock (on an as-converted basis) of the Company then owned
by all Investors. For purposes of this Article II, all of the shares of capital
stock which an Investor has the right to acquire from the Company upon the
conversion, exercise or exchange of any of the securities of the Company then
owned by such Investor shall be deemed to be Investor Shares then owned by such
Investor (as adjusted for any adjustments in the applicable conversion or
exchange rate of any such securities). The amount of the Offered Shares that
each Investor is entitled to purchase under this section shall be referred to as
its "Pro Rata Fraction". The Investors shall have a right of oversubscription
such that if any Investor fails to accept the Offer as to its Pro Rata Fraction,
the remaining Investors shall, among them, have the right to purchase up to the
balance of the Offered Shares not so purchased. Such right of oversubscription
may be exercised by an Investor by accepting the Offer as to more than its Pro
Rata Fraction. If, as a result thereof, such oversubscriptions exceed the total
number of the Offered Shares available in respect of such oversubscription
privilege, the oversubscribing Investors shall be cut back with respect to their
oversubscriptions on a pro rata basis in accordance with their respective Pro
Rata Fractions, or as they may otherwise agree among themselves.
(d) CLOSING ON OFFERED SHARES PURCHASED BY INVESTORS. If an
Investor desires to purchase all or any part of the Offered Shares, then the
Investor shall communicate in writing its election to purchase to the
Shareholder, which communication shall state the number of Offered Shares the
Investor desires to purchase and shall be delivered in person or mailed to the
Shareholder at the address set forth in accordance with Section 3.11 below. Such
communication of the Investors shall be delivered within thirty (30) days of the
date the Offer was received. Such communication shall, when taken in conjunction
with the Offer, be deemed to constitute a valid, legally binding and enforceable
agreement for the sale and purchase of such Offered Shares (subject to the
Company's right of first refusal and the aforesaid limitations as to an
Investor's right to purchase more than its Pro Rata Fraction). Sales of the
Offered Shares to be sold to the Investors pursuant to this section shall be
made at the offices of the Company on or before the 60th day following the date
the Offer was received (or if such 60th day is not a business day, then on the
next succeeding business day). Such sales shall be effected by the Shareholder's
delivery to each purchasing Investor of a certificate(s) evidencing the Offered
Shares to be purchased by them, duly endorsed for transfer to each purchasing
Investor, against payment to the Shareholder of the purchase price therefor by
all such purchasing Investors.
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(e) SALES TO PROPOSED TRANSFEREE. If the Company and the
Investors do not purchase all of the Offered Shares, the Offered Shares not so
purchased may be sold by the Shareholder at any time within 180 days after the
date the Offer was made pursuant to the Proposed Offer Sale, subject to the
co-sale provisions of Section 3. Any such sale shall be at not less than the
price and upon other terms and conditions, if any, not more favorable to the
transferee than those specified in the Offer. Any Offered Shares not sold within
the permitted 180-day time period shall continue to be subject to the
requirements of a prior offer pursuant to this Section 2.1. If Offered Shares
are sold pursuant to this Section 2.1 to any transferee who is not a party to
this Agreement or who is not otherwise a permitted transferee under Section 2.3
hereof, the Offered Shares so sold shall be subject to the restrictions imposed
by this Agreement except as provided in Section 3.5 of this Agreement. As among
the Company and the Investors, the Company and the Investors shall purchase all
and not less than all of the Offered Shares in order for this Section 2.1 to be
effective and if the Company and the Investors do not purchase all of the
Offered Shares, the Shareholder shall be free to sell such shares.
SECTION 2.2. RIGHT OF PARTICIPATION IN SALES BY SHAREHOLDER.
(a) CO-SALE RIGHT. If at any time a Shareholder desires to
sell all or any part of the Shares owned by him to any person other than to one
or more of the Investors in accordance with Section 2.1 (the "Purchaser")
(including sales pursuant to Section 2.1(e)), each Investor shall have the right
to sell to the Purchaser, as a condition to such sale by the Shareholder, at the
same price per share and on the same terms and conditions as involved in such
sale by the Shareholder, such number of Investor Shares equal to the remaining
Offered Shares (after the exercise of any right of first refusal under Section
2.1) multiplied by a fraction, the numerator of which is the aggregate number of
shares of capital stock of the Company owned by the Investor desiring to sell
Investor Shares and the denominator of which is the sum of all shares of capital
stock of the Company owned by the Shareholder and all Investors desiring to
participate in the sales to the Purchaser under this section (calculated as
provided in Section 2.1(c)).
(b) NOTICE OF INTENT TO PARTICIPATE. Each Investor wishing to
so participate in any sale under this Section 2.2 shall notify the Shareholder
in writing of such intention as soon as practicable after such Investor's
receipt of the Offer made pursuant to Section 2.1, and in any event within the
time period specified in Section 2.1. Such notification shall be delivered in
person or mailed to such Shareholder at the address set forth in accordance with
Section 3.11 below.
(c) SALE TO TRANSFEREE. The Shareholder and each participating
Investor shall sell to the Purchaser all, or at the option of the Purchaser, any
part of the Shares and/or Investor Shares proposed to be sold by them at not
less than the price and upon other terms and conditions, if any, not more
favorable to the Purchaser than those in the Offer provided by the Shareholder
under Section 2.1 above; provided, however, that any purchase of less than all
of such Shares and/or Investor Shares by the Purchaser shall be made from the
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Shareholder and each participating Investor pro rata based upon the relative
amount of the Shares and/or Investor Shares that the Shareholder and each
participating Investor is otherwise entitled to sell pursuant to Section 2.2(a).
(d) LAPSE OF RESTRICTIONS. Any Shares sold by the Shareholder
to the Purchaser pursuant to this Section 2.2 shall no longer be subject to the
restrictions or benefits imposed by this Agreement and any Investor Shares sold
by a participating Investor pursuant to this Section 2.2 shall no longer be
entitled to the benefits or restrictions conferred by this Agreement.
SECTION 2.3. PROHIBITED AND PERMITTED TRANSFERS.
(a) A Shareholder shall not sell, assign, transfer, grant an
option to or for, pledge, hypothecate, mortgage, encumber or dispose of all or
any of his Shares except as expressly provided in this Agreement.
(b) Notwithstanding the foregoing, the terms and conditions of
Sections 2.1 and 2.2 hereof shall not apply to any Permitted Transfer by a
Shareholder. For purposes of this Agreement, "Permitted Transfer" means any
transfer by a Shareholder (a) of up to fifty percent (50%) on a cumulative basis
of any shares of capital stock held by the Shareholder to or for the benefit of
any spouse, child or grandchild of the Shareholder, or to a trust for the
benefit of any of the foregoing, or (b) by will or the laws of descent and
distribution to a Permitted Transferee (any person referred to in clause (a)
being defined as a "Permitted Transferee"); provided, that it shall be a
condition of each such transfer that the Permitted Transferee agree to be bound
by the terms and conditions of this Agreement as a Shareholder and executes a
counterpart of this Agreement.
As used herein, the term "Shareholder" is deemed to include any
transferees of the Shareholder, except as expressly provided otherwise.
SECTION 2.4. PUT RIGHT. In the event of any sale, transfer, assignment
or disposition of any Shares by a Shareholder in violation of any provision of
this Article II, each Investor shall have the right to elect to cause such
Shareholder to purchase, and such Shareholder shall be obligated to purchase,
from such Investor and at the same price per share and on the same terms and
conditions as involved in such sale by the Shareholder, such number of Investor
Shares (calculated on a fully-diluted basis) equal to the number of Shares sold
by such Shareholder multiplied by a fraction, the numerator of which is the
aggregate number of Investor Shares owned by any particular Investor desiring to
sell shares to such Shareholder under this section (calculated on a
fully-diluted basis) and the denominator of which is the sum of all shares of
capital stock owned by all Investors desiring to sell shares to such Shareholder
under this section (calculated on a fully-diluted basis).
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ARTICLE III
MISCELLANEOUS
SECTION 3.1. DURATION OF AGREEMENT. The rights and obligations of the
Company, each Shareholder and each Investor under this Agreement shall
terminate, on the earlier to occur of the following: (a) immediately prior to
the closing of the first underwritten public offering by the Company under the
Securities Act of 1933 of any of its equity securities pursuant to an offering
registered on Form S-1 or Form S-18 or their then equivalents in which the
aggregate gross proceeds to the Company equal or exceed $9,000,000, or (b)
immediately prior to the consummation of the sale of all, or substantially all,
of the Company's assets or capital stock either through a direct sale, merger,
reorganization, consolidation or other form of business combination.
Notwithstanding the foregoing, the rights and obligations of the Company, each
Shareholder and each Investor under Article I hereof shall terminate on the
earliest to occur of either of the events specified in clauses (a) and (b) above
or December 30, 2005 (or, if the Delaware General Corporation Law so permits,
such later date).
SECTION 3.2. LEGEND. Each certificate representing shares of capital
stock of the Company beneficially owned by the Shareholders and the Investors
shall bear a legend in substantially the following form, until such time as the
shares of capital stock represented thereby are no longer subject to the
provisions hereof:
"The sale, transfer or assignment of the securities
represented by this certificate are subject to the terms and
conditions of a certain Second Amended and Restated Voting and
Co-Sale Agreement dated February __, 1995, as amended from
time to time, among the Company and certain holders of its
outstanding capital stock. Copies of such Agreement may be
obtained at no cost by written request made by the holder of
record of this certificate to the Secretary of the Company."
SECTION 3.3. SIZE OF BOARD. Each of the parties hereto agrees to vote
all shares of capital stock now owned or hereafter acquired by him to fix and
maintain the number of directors on the Board of Directors of the Company at not
more than six (6) members, except as otherwise provided in Article Fourth of the
Company's Restated Certificate of Incorporation.
SECTION 3.4. FAILURE TO DELIVER SHARES. If a Shareholder becomes
obligated to sell any Shares to an Investor under this Agreement and fails to
deliver such Shares in accordance with the terms of this Agreement, such
Investor may, at its option, in addition to all other remedies it may have, send
to the Company for the benefit of the Shareholder the purchase price for such
Shares as is herein specified. Thereupon, the Company upon written
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notice to the Shareholder, (a) shall cancel on its books the certificate(s)
representing the Shares to be sold and (b) shall issue, in lieu thereof, in the
name of such Investor, a new certificate(s) representing such Shares, and
thereupon all of the Shareholder's rights in and to such Shares shall terminate.
The Company may exercise a similar remedy in enforcing its rights under Section
2.1.
SECTION 3.5. ADDITIONAL PARTIES AND DEFINITIONS. The Company, the
Investors (in the case of a transfer of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock), and the
Shareholders (in the case of a transfer of capital stock by them or issuance of
capital stock by the Company) shall cause the following to occur:
(a) Any person or entity who acquires any series of Preferred
Stock shall become an Investor hereunder, unless at the time of such purchase
such person or entity was a Shareholder or an employee of the Company, in which
case such person or entity still remains or becomes (as the case may be) a
Shareholder hereunder;
(b) Any person or entity who acquires three percent (3%) or
more of the outstanding shares of capital stock of the Company through any
transactions whatsoever (other than as provided in Section 3.5(a)) shall become
a Shareholder hereunder, unless at the time such person or entity was, or was
required pursuant to this Section 3.5 to become, an Investor.
SECTION 3.6. SEVERABILITY; GOVERNING LAW. If any provisions of this
Agreement shall be determined to be illegal or unenforceable by any court of
law, the remaining provisions shall be severable and enforceable to the maximum
extent possible in accordance with their terms. This Agreement shall be governed
by, and construed in accordance with, the laws of the state of organization of
the Company from time to time, initially the State of Delaware.
SECTION 3.7. INJUNCTIVE RELIEF. It is acknowledged that it will be
impossible to measure the damages that would be suffered by the Investors if a
Shareholder fails to comply with the provisions of this Agreement and that in
the event of any such failure, the Investors will not have an adequate remedy at
law. The Investors shall, therefore, be entitled to obtain specific performance
of the Shareholders' obligations hereunder and to obtain immediate injunctive
relief.
SECTION 3.8. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors and
assigns, legal representatives and heirs.
SECTION 3.9. MODIFICATION OR AMENDMENT. Neither this Agreement nor any
provision hereof can be modified, amended, changed, discharged or terminated
except by an instrument in writing, signed by (A) the Shareholders who hold at
least a majority of the
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shares of capital stock held by the Shareholders then subject to this Agreement,
based upon voting power and calculated on an "as if converted" basis, together
with (B) the consent of the Investors holding at least 60% of the outstanding
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock and capital stock issued on conversion or
exchange thereof, voting together as a single class; provided, however, that any
amendment, modification, change, discharge or termination of the provisions
relating to (i) any increase of the obligations or decrease of the rights of the
Investors or the election of the Investor Directors shall require the consent of
the holders of 60% in interest of the outstanding shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock, voting together as a single class, and (ii) any increase of the
obligations or decrease of the rights of the Shareholders or the election of
directors other than the Investor Directors shall require the consent of the
holders of a majority in interest of the outstanding shares of capital stock
held by the Shareholders, voting separately.
Execution by such persons or entities and the Company of a counterpart
of this Agreement and an amendment adding their names hereto shall be a
condition of any acquisition of such shares by such person or entity.
SECTION 3.10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
SECTION 3.11. NOTICES. All notices to be given or otherwise made to any
party to this Agreement shall be deemed to be sufficient if contained in a
written instrument, delivered by hand in person, or by express overnight courier
service, or by electronic facsimile transmission addressed to such party at the
address set forth herein or at such other address as may hereafter be designated
in writing by the addressee to the addressor listing all parties, it being
understood that notice is only required to be provided to the individual
investors at the following address, or at such other addresses to which such
party may inform the other parties in writing in compliance with the terms of
this Section:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
All such notices shall, when delivered or telegraphed, be
effective when received or when attempted delivery is refused.
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SECTION 3.12. MERGER PROVISION. This Agreement and the Stock Purchase
Agreement of even date herewith, by and between the Company and the Investors,
along with all exhibits and schedules to the various agreements, constitute the
entire agreement among the parties hereto pertaining to the subject matter
hereof and supersede all prior and contemporaneous agreements and
understandings, whether oral or written, of any of the parties hereto concerning
the subject matter hereof. Any agreement between the Company and any Investor or
the Company and any Shareholder in effect immediately prior to the execution
hereof and concerning any of the subject matter hereof is hereby terminated,
except for that certain Stock Repurchase Agreement between the Company and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and that certain Standstill Agreement, dated the date hereof,
between the Company and Pfizer.
SECTION 3.13. FURTHER ASSURANCES. From and after the date of this
Agreement, upon the request of any Investor, the Company or Shareholders holding
at least ten percent (10%) of the Shares, the Company, the Shareholders and the
Investors shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
[SIGNATURE PAGES TO FOLLOW]
- 11 -
12
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Voting and Co-Sale Agreement to be executed as of the date first above
written.
MYCO PHARMACEUTICALS INC.
By: ___________________________
President
PFIZER, INC.
By: ___________________________
Title:______________________________
TECHNOLOGY LEADERS L.P.
By: Technology Leaders
Management, Inc. (General
Partner)
By:_________________________________
Name:_______________________________
Title:______________________________
TECHNOLOGY LEADERS OFFSHORE C.V.
By: Technology Leaders
Management, Inc., its General
Partner
By:_________________________________
Name:_______________________________
Title:______________________________
BESSEMER VENTURE PARTNERS II L.P.
By:_________________________________
General Partner
- 12 -
13
By:_________________________________
Name:_______________________________
Title:______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND II, L.P.
By: its general partner,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Partners II L.P.
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: General Partner
GILDE INVESTMENT FUND B.V.
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
general partner of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Partners II L.P.
COMDISCO, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇ ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- 13 -
14
BRIMSTONE ISLAND CO., L.P.
By:__________________________________
its General Partner
By:__________________________________
Name:________________________________
Title:_______________________________
____________________________________
Neill ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________________
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
____________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- 14 -
15
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, signing
as Attorney-in-Fact for each
of the individuals beside whose
name an asterisk appears
J. ▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
____________________________________
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
- 15 -
16
EXHIBIT A
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Brimstone Island Co. L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Neill ▇. ▇▇▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- 16 -
17
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bessemer Venture Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Partners
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- 17 -
18
EXHIBIT B
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
- 18 -
