EXHIBIT 4.3
AMENDMENT NO. 1
TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT (the "Amendment") to that certain Amended and Restated
Investors' Rights Agreement (the "Agreement"), dated as of April 30, 2003, by
and among Santarus, Inc., a Delaware corporation (the "Company"), and the Common
Holders, the Series A Holders, the Series B Holders, the Series C Holders and
the Series D Holders listed on Schedule A thereto (collectively, the
"Investors"), is entered into as of May 19, 2003.
WHEREAS, in connection with the Company's Series D Preferred Stock
financing, the Company entered into the Agreement with the Investors;
WHEREAS, Section 5.1(e) of the Agreement currently provides that the
Investors shall act in all capacities to vote the shares of stock of the Company
now or hereafter owned by them so as to cause and maintain the election to the
Board of Directors of the Company the following Series D Directors: (i) one (1)
person who shall be designated by S.R. One, Limited, who shall initially be
▇▇▇▇▇▇ ▇▇▇▇▇, (ii) one (1) person who shall be designated by Domain Partners V,
L.P and its Affiliates, who shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and (iii) one (1)
person who shall be designated by the holders of at least two-thirds (2/3) of
the then outstanding Series D Shares; and
WHEREAS, the Company and the undersigned Investors desire to amend and
restate Section 5.1(e) of the Agreement pursuant to and in accordance with
Sections 5.5, 8.2 and 18 thereof in order to provide for the election of a
person designated by Life Sciences Partners II B.V. as a director of the
Company.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements contained herein, the Company and the undersigned Investors,
intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement. References in the Agreement
(including references to the Agreement as amended hereby) to "this Agreement"
(and indirect references such as "hereunder", "hereby", "herein" and "hereof")
shall be deemed to be references to the Agreement as amended hereby.
2. Section 5.1(e) of the Agreement is hereby amended and restated
to read in its entirety as follows:
"(e) as the three (3) directors elected by the holders of
Series D Shares pursuant to the Company's Restated Certificate of Incorporation,
if any such shares are then outstanding (collectively, the "Series D
Directors"), (i) one (1) person who shall be designated by S.R. One, Limited
("SR One"), who shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇, (ii) one (1) person who shall
be designated by Domain Partners V, L.P. and its Affiliates ("Domain"), who
shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and (iii) one (1) person who shall be
designated by Life Sciences Partners II B.V. who shall initially be F.V. van der
Have.
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3. Except as specifically set forth herein, all of the terms and
provisions of the Agreement shall remain unchanged, unmodified and in full force
and effect, and the Agreement shall be read together and construed with this
Amendment.
4. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same amendatory
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
5. This Amendment, together with the Agreement as amended hereby,
shall supercede and replace any prior agreement between the Company the
Investors relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
SANTARUS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
ADVENT PRIVATE EQUITY FUND III 'A'
LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III 'A' Limited
Partnership
In the presence of:
----------------------
ADVENT PRIVATE EQUITY FUND III 'B'
LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III 'B' Limited
Partnership
In the presence of:
----------------------
[Signature Page To Amendment No. 1 To Investors' Rights Agreement]
INVESTOR:
ADVENT PRIVATE EQUITY FUND III 'C'
LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III 'C' Limited
Partnership
In the presence of:
------------------------
ADVENT PRIVATE EQUITY FUND III 'D'
LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III 'D' Limited
Partnership
In the presence of:
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
ADVENT PRIVATE EQUITY FUND III
GMBH & CO KG
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III GmbH & Co KG
In the presence of:
------------------------
ADVENT PRIVATE EQUITY FUND III
AFFILIATES LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Private Equity Fund III Affiliates
Limited Partnership
In the presence of:
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
ADVENT MANAGEMENT III LIMITED PARTNERSHIP
Signed by: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
for and on behalf of
Advent Venture Partners LLP acting as
manager of
Advent Management III Limited Partnership
In the presence of:
------------------------
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
DOMAIN PARTNERS V, L.P.
By: One ▇▇▇▇▇▇ Square Associates, V, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: MANAGING MEMBER
Its: Managing Member
DP V ASSOCIATES, L.P.
By: One ▇▇▇▇▇▇ Square Associates, V, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: MANAGING MEMBER
Its: Managing Member
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
▇.▇. ▇▇▇▇▇▇ PARTNERS (SBIC), LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ PARTNERS GLOBAL
INVESTORS (SBIC), LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
LIFE SCIENCES PARTNERS II B.V.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇
Its: Partner
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
S.R. ONE, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ PhD.
Its: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
ST. ▇▇▇▇ VENTURE CAPITAL IV, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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ST. ▇▇▇▇ VENTURE CAPITAL V, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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ST. ▇▇▇▇ VENTURE CAPITAL VI, LLC
By: SPVC Management VI, LLC
Its: Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
------------------------------------
Its:
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ST. ▇▇▇▇ VENTURE CAPITAL
AFFILIATES FUND I, LLC
By: St. ▇▇▇▇ Venture Capital, Inc.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
------------------------------------
Its:
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[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
MAYO FOUNDATION FOR MEDICAL
EDUCATION AND RESEARCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]
INVESTOR:
▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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[SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]