Prospectus Summary

EX-4.3 4 a95226orexv4w3.txt EXHIBIT 4.3 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 Maxine Gowen, (ii) one (1) person who shall be designated by Domain Partners V, L.P and its Affiliates, who shall initially be Arthur Klausner 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 Maxine Gowen, (ii) one (1) person who shall be designated by Domain Partners V, L.P. and its Affiliates ("Domain"), who shall initially be Arthur Klausner, 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. 1 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. [Remainder of page intentionally left blank.] 2 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/ Gerald T. Proehl -------------------------------------- Name: Gerald T. Proehl 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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/ Patrick Lee ------------------------------- 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 Palmer Square Associates, V, L.L.C. Its: General Partner By: /s/ Kathleen K. Schoemaker -------------------------------------- Name: MANAGING MEMBER Its: Managing Member DP V ASSOCIATES, L.P. By: One Palmer Square Associates, V, L.L.C. Its: General Partner By: /s/ Kathleen K. Schoemaker -------------------------------------- Name: MANAGING MEMBER Its: Managing Member [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: J.P. MORGAN PARTNERS (SBIC), LLC By: /s/ Rodney A. Ferguson -------------------------------------- Name: RODNEY FERGUSON Title: Managing Director J.P. MORGAN PARTNERS GLOBAL INVESTORS (SBIC), LLC By: /s/ Rodney A. Ferguson -------------------------------------- Name: RODNEY FERGUSON Title: Managing Director [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: LIFE SCIENCES PARTNERS II B.V. By: /s/ T.S. Schwarz -------------------------------------- Name: T.S. Schwarz Its: Partner [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: S.R. ONE, LIMITED By: /s/ Maxine Gowen -------------------------------------- Name: Maxine Gowen PhD. Its: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: ST. PAUL VENTURE CAPITAL IV, LLC By: /s/ David W. Stassen -------------------------------------- ST. PAUL VENTURE CAPITAL V, LLC By: /s/ David W. Stassen -------------------------------------- ST. PAUL VENTURE CAPITAL VI, LLC By: SPVC Management VI, LLC Its: Managing Member By: /s/ David W. Stassen -------------------------------------- Name: ------------------------------------ Its: ------------------------------------- ST. PAUL VENTURE CAPITAL AFFILIATES FUND I, LLC By: St. Paul Venture Capital, Inc. Its: Manager By: /s/ David W. Stassen -------------------------------------- Name: ------------------------------------ Its: ------------------------------------- [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH By: /s/ Harry N. Hoffman -------------------------------------- [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT] INVESTOR: WIDDER / JOHNSON TRUST By: /s/ Kenneth J. Widder -------------------------------------- [SIGNATURE PAGE TO AMENDMENT NO. 1 TO INVESTORS' RIGHTS AGREEMENT]