-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DkT3xReJvNgncb5SaCb8xLHEl2tzAGUSGgQTKm46KEXECS+LQj2HTS0F7Rvy7PHy XcdPQg+VAAmyRm6FhMn61g== 0000950103-03-000671.txt : 20030228 0000950103-03-000671.hdr.sgml : 20030228 20030228114033 ACCESSION NUMBER: 0000950103-03-000671 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030228 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ARADIGM CORP CENTRAL INDEX KEY: 0001013238 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 943133088 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-46237 FILM NUMBER: 03585179 BUSINESS ADDRESS: STREET 1: 3929 POINT EDEN WAY CITY: HAYWARD STATE: CA ZIP: 94545 BUSINESS PHONE: 5102659000 MAIL ADDRESS: STREET 1: 3929 POINT EDEN WAY CITY: HAYWARD STATE: CA ZIP: 94545 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NOVO NORDISK A S CENTRAL INDEX KEY: 0000353278 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: NOVO ALLE DK 2880 CITY: BAGSVAERD DENMARK STATE: G7 ZIP: 00000 BUSINESS PHONE: 4544448888 MAIL ADDRESS: STREET 1: NOVO ALLE DK 2880 CITY: BAGSVAERD DENMARK STATE: G7 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: NOVO INDUSTRI A S /DENMARK/ DATE OF NAME CHANGE: 19890811 FORMER COMPANY: FORMER CONFORMED NAME: NOVO NORDISK A/S DATE OF NAME CHANGE: 19900807 SC 13D/A 1 feb1903_13da.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ----------------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULES 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 2)1 ARADIGM CORPORATION (Name of Issuer) Common Stock, no par value (Title of Class of Securities) 038508 (CUSIP Number) Ole Ramsby Novo Nordisk A/S Novo Alle DK-2880 Bagsvaerd Denmark Tel No.: +45 4444 8888 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 10, 2003 (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o. Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - -------- 1 The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for the th purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 038508 Page 2 of 10 Pages - ---------------- ------------------ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Novo Nordisk A/S 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [] (b) [X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [] 6 CITIZENSHIP OR PLACE OF ORGANIZATION The Kingdom of Denmark 7 SOLE VOTING POWER 1,020,612 NUMBER OF SHARES BENEFICIALLY OWNED BY 8 SHARED VOTING POWER EACH REPORTING PERSON WITH 22,889,002 9 SOLE DISPOSITIVE POWER 1,020,612 10 SHARED DISPOSITIVE POWER 6,847,757 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 23,909,614 - See Item 5 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 56.6% - See Item 5 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! Page 2 of 10 Novo Nordisk A/S, a publicly quoted Danish company ("Buyer") hereby amends and supplements its Report on Schedule 13D, originally filed on November 14, 2001 (as amended and supplemented, the "Schedule 13D") with respect to the shares of Common Stock, no par value (the "Shares"), of Aradigm Corporation, a California corporation (the "Issuer"). Unless otherwise indicated, each capitalized term used but not defined herein shall have the meaning assigned to such term in the Schedule 13D. Item 1. Security and Issuer. Item 2. Identity and Background. Item 3. Source and Amount of Funds or Other Consideration. Item 4. Purpose of Transaction. The following additional paragraphs are added after the last paragraph of Item 4 of the Schedule 13D: On February 10, 2003, the Issuer and certain other investors entered into a Securities Purchase Agreement (the "Securities Purchase Agreement"), whereby the Issuer agreed to sell a certain number of Shares and warrants, subject to shareholder approval and other closing conditions. In connection with the Securities Purchase Agreement, Buyer and certain other shareholders of the Issuer (collectively, the "Other Shareholders") entered into a Voting Agreement dated February 10, 2003 (the "Voting Agreement" a copy of which is attached hereto as Exhibit 2 and incorporated herein by reference), pursuant to which the parties agreed to vote all Shares registered in their respective names or beneficially owned by them (whether owned as of the date of the Voting Agreement or any time thereafter) to approve the Securities Purchase Agreement and other related documents and transactions. The scope of the Voting Agreement is limited to these matters and does not require the Buyer and the Other Stockholders to vote in any way on any matter except as set forth above. The Voting Agreement terminates on the earlier of: (i) the Closing Date (as defined in the Securities Purchase Agreement), (ii) the date on which the parties to the Voting Agreement terminate it by written consent of New Enterprise Associates and a majority in interest of the shareholders party to the Voting Agreement, (iii) the termination of the Securities Purchase Agreement and (iv) April 30, 2003. Item 5. Interest in Securities of the Issuer. (a) For the purposes of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Buyer may be deemed to beneficially own 23,909,614 Shares, or approximately 56.6% of the outstanding Shares, which includes Warrants to purchase 4,913,144 Shares and 1,536,226 shares of Preferred Stock (convertible into 6,144,904 Shares). (b) By virtue of the Voting Agreement (the details of which are set forth under Item 4 of this Schedule 13D), Buyer may be deemed to have the shared power to vote or direct the vote of the 4,983,197 Shares, warrants to purchase 4,913,144 Shares and the 1,536,226 shares of Preferred Stock (convertible into 6,144,904 Shares) held by the Other Stockholders for the limited purposes described in Item 4 of this Schedule 13D. The Reporting Person disclaims beneficial ownership of all such securities of the Issuer owned by the Other Stockholders. By virtue of the relationship described in Item 2 of this Schedule 13D, Buyer may be deemed to have the sole power to vote or direct the vote and sole power to dispose or direct the disposition of and vote of the 1,020,612 Shares held by it directly and the shared power to direct the disposition of and vote of the 6,847,757 Shares held by NN Pharmaceuticals. (c) None of Buyer, any of the persons named in Item 2 or any of the persons set forth on Schedule A, has effected any transaction in the Common Stock during the past 60 days. Page 3 of 10 (d) Inapplicable. (e) Inapplicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. See response to Item 4. Item 7. Material to be Filed as Exhibits. Exhibit 1: Stock Purchase Agreement dated as of October 22, 2001 between the Issuer and Buyer.# Exhibit 2: Voting Agreement dated as of February 10, 2003 between Buyer and certain other parties set forth on Exhibit A to such Voting Agreement. # Previously filed as an exhibit to the original Schedule 13D filed November 14, 2001. Page 4 of 10 SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: February 28, 2003 NOVO NORDISK A/S By: /s/ Mads Ovlisen -------------------------------- Name: Mads Ovlisen Title: Chairman of the Board By: /s/ Kare Schultz -------------------------------- Name: Kare Schultz Title: Executive Vice President & COO Page 5 of 10 SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS OF BUYER The name, address, title, present principal occupation or employment of each of the directors and executive officers of Buyer are set forth below. If no address is given, the director's or officer's address is Novo Alle, DK-2880 Bagsvaerd, Denmark. The directors are designated with asterisks (*). Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Mads 0vlisen Chairman of the Board Danish Novo Nordisk A/S Novo Alle, 6B2.22 2880 Bagsvaerd Denmark *Kurt Anker Nielsen Co-President & CEO Danish Novo A/S Krogshojvej 41, 9P2.05 2880 Bagsvaerd Denmark *Jan Ulf Sigvard Johansson CEO/Businessman Swedish Strandvagen 43, 4 tr. 114 56 Stockholm Sweden *Jorgen Wedel 29 Winsor Way Danish Weston, Massachusetts 02493 USA *Kurt Briner Director Swiss c/o Ebsa sa 47, rue du 31 Decembre CH-1211 Geneva 6 Switzerland *Niels Jacobsen President & CEO Danish William Demant Holding A/S Strandvejen 58 2900 Hellerup Denmark *Anne Marie Handrup Kverneland Laboratory Assistant Danish Novo Nordisk A/S Laurentsvej 22, 7X 2880 Bagsvaerd Denmark Page 6 of 10 Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Johnny Henriksen Environmental Specialist Danish Novo Nordisk A/S Hummeltoftevej 49 Building SOC 1.18 2830 Virum Denmark *Stig Strobaek Electrician Danish Novo Nordisk, A/S Laurentsvej 22, 7X 2880 Bagsvaerd Denmark Lars Rebien Sorensen CEO Danish Novo Nordisk A/S Jesper Brandgaard CFO Danish Novo Nordisk A/S Kare Schultz Chief Operating Officer Danish Novo Nordisk A/S Mads Krogsgaard Thompsen Chief Science Officer Danish Novo Nordisk A/S Lars Almblom Jorgensen Chief of Staffs Danish Novo Nordisk A/S Lise Kingo Executive Vice President Danish Novo Nordisk A/S DIRECTORS AND EXECUTIVE OFFICERS OF NN NORTH AMERICA The name, address, title, present principal occupation or employment of each of the directors and executive officers of NN North America, are set forth below. If no address is given, the director's or officer's address is 405 Lexington Avenue, New York City, New York 10017. The directors are designated with asterisks (*). Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *James Shehan President and Secretary USA Novo Nordisk of North America, Inc. *Susan Jackson Vice President Communications USA Novo Nordisk Pharmaceuticals, Inc. 100 College Road West Princeton, NJ 08540-7810 *Phil Fornecker CFO and Treasurer USA Novo Nordisk of North America, Inc. Page 7 of 10 Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Ole F. Ramsby Senior Vice President Legal Affairs Danish and General Counsel Novo Nordisk A/S Novo Alle 2880 Bagsvaerd Denmark Mark Stolp Assistant Treasurer USA Novo Nordisk of North America, Inc. Jerry Shilling Assistant Treasurer USA Novo Nordisk of North America, Inc. Kevin Rowland Assistant Treasurer USA Novo Nordisk of North America, Inc. Joan M. Schmidt Assistant Secretary USA Novo Nordisk of North America, Inc. DIRECTORS AND EXECUTIVE OFFICERS OF NN PHARMACEUTICALS The name, address, title, present principal occupation or employment of each of the directors and executive officers of NN Pharmaceuticals, are set forth below. If no address is given, the director's or officer's address is 100 College Road, Princeton, New Jersey 08540. The directors are designated with asterisks (*). Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Martin Soeters President The Netherlands Novo Nordisk Pharmaceuticals, Inc. *Kare Schultz Chief Operating Officer Danish Novo Nordisk A/S *Barry Reit Vice President Regulatory Affairs Danish Novo Nordisk Pharmaceuticals, Inc. *Phil Fornecker Vice President Finance USA Novo Nordisk Pharmaceuticals, Inc. *Jim C. Shehan President USA Novo Nordisk of North America, Inc. 405 Lexington Avenue New York City, NY 10017 DIRECTORS AND EXECUTIVE OFFICERS OF NOVO A/S The name, address, title, present principal occupation or employment of each of the directors and executive officers of Novo A/S, are set forth below. If no address is given, the director's or officer's address is Krogshojvej 41, DK-2880 Bagsvaerd, Denmark. The directors are designated with asterisks (*). Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Palle Marcus Chairman of the Board of Directors Danish Novo A/S Page 8 of 10 Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Jorgen Boe Lawyer Danish Margrethevej 6 2960 Rungsted Kyst Denmark *Jan Ulf Sigvard Johansson CEO/Businessman Swedish Strandvagen 43, 4 tr. 114 56 Stockholm Sweden *Hans Kristian Werdelin Member Board of Directors Danish Novo A/S Henrik Gurtler Co-CEO Danish Novo A/S Kurt Anker Nielsen Co-CEO Danish Novo A/S DIRECTORS AND EXECUTIVE OFFICERS OF FOUNDATION The name, address, title, present principal occupation or employment of each of the directors and executive officers of the Foundation, are set forth below. If no address is given, the director's or officer's address is Brogardsvej 70, Post Box 71, DK-2820 Gentofte, Denmark. The directors are designated with asterisks (*). Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Palle Marcus Chairman of Board of Directors Danish Novo Nordisk Foundation *Jorgen Boe Lawyer Danish Margrethevej 6 2960 Rungsted Kyst Denmark *Mads Ovlisen Member Board of Directors Danish Novo Nordisk Foundation Novo Nordisk A/S Novo Alle 6B2.22 2880 Bagsvaerd Denmark *Niels Borregaard Doctor Danish Enevangen 83 3450 Allerod Denmark *Jan Eric Lindsten Doctor Swedish Norr Malarstrand 78, 3 tr. S-112 35 Stockholm Sweden Page 9 of 10 Name and Citizenship Principal Occupation and Address - -------------------- -------------------------------- *Hans Ejvird Hansen Director Danish Hegelsvej 12 2900 Charlotterlund Denmark *Ulla Morin Technician Danish Novo Nordisk Foundation *Soren Thuesen Pedersen Chemist Danish Novo Nordisk Foundation *Stig Strobaek Electrician Danish Novo Nordisk Foundation Gert Almind Frederiksen CEO Danish Novo Nordisk Foundation Page 10 of 10 EX-2 3 votingagt.txt EXHIBIT 2 VOTING AGREEMENT THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of this 10th day of February, 2003, by and among New Enterprise Associates ("NEA") and those certain persons and entities listed on Exhibit A hereto (the "Shareholders"). WITNESSETH WHEREAS, NEA and certain other investors are purchasing shares of Common Stock (the "Common Stock") of Aradigm Corporation (the "Company") and warrants (the "Warrants") to purchase Common Stock, pursuant to that certain Securities Purchase Agreement (the "Purchase Agreement") of even date herewith and the Company is canceling and reissuing certain Common Stock Warrants, previously issued pursuant to the Securities Purchase Agreement dated December 11, 2001, to NEA and certain other investors, pursuant to that certain Warrant Repricing Agreement (the "Warrant Agreement") of even date herewith (collectively, the "Financing"); WHEREAS, each Shareholder is a holder of record and the "beneficial owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain shares of capital stock of the Company; and WHEREAS, in connection with the consummation of the Financing, and in order to induce NEA to enter into the Purchase Agreement and the Warrant Agreement, the Shareholders have agreed to provide for the future voting of their shares of the Company's capital stock as set forth below. NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AGREEMENT 1. VOTING. 1.1 Shareholder Shares. The Shareholders each agree to hold all shares of voting capital stock of the Company registered in their respective names or beneficially owned by them as of the date hereof and any and all other securities of the Company legally or beneficially acquired by each of the Shareholders after the date hereof and on or prior to the date of the Shareholder Meeting (as defined below) (hereinafter collectively referred to as the "Shareholder Shares") subject to, and to vote the Shareholder Shares in accordance with, the provisions of this Agreement. 1.2 Purchase Agreement and Financing. At any meeting of shareholders of the Company, however called (the "Shareholder Meeting"), the Shareholders shall vote all of their respective Shareholder Shares to be voted in favor of the approval of the Financing, the execution, delivery and performance by the Company of the Purchase Agreement, the execution, delivery and performance by the Company of the Warrant Agreement and the adoption and approval of the terms thereof and in favor of each of the other actions contemplated by the Purchase Agreement and the Warrant Agreement and any action required in furtherance thereof. The foregoing notwithstanding, if the terms of the Financing, the Purchase Agreement or the Warrant Agreement are materially changed or amended after the date hereof, no Shareholder shall have any obligations under the provisions of Section 1.1 or this Section 1.2 if such Shareholder reasonably believes that such change or amendment is adverse to the rights or interests of the Company or such Shareholder. 1.3 Successors. The provisions of this Agreement shall be binding upon the successors in interest to any of the Shareholder Shares. 1.4 Other Rights. Except as provided by this Agreement or any other agreement entered into in connection with the Financing, each Shareholder shall exercise the full rights of a holder of capital stock of the Company with respect to the Shareholder Shares, respectively. 2. TERMINATION. 2.1 This Agreement shall continue in full force and effect from the date hereof through the earliest of the following dates, on which date it shall terminate in its entirety: (a) the Closing Date (as defined in the Purchase Agreement); (b) the date as of which the parties hereto terminate this Agreement by written consent of (i) NEA and (ii) a majority in interest of the Shareholders; (c) the termination of the Purchase Agreement pursuant to Section 9.1 thereof; or (d) April 30, 2003. 3. MISCELLANEOUS. 3.1 Ownership. Each Shareholder represents and warrants to NEA that (a) such Shareholder now owns, or will own upon the Shareholder Meeting, the Shareholder Shares, free and clear of liens or encumbrances, and has not, prior to or on the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement other than one which has expired or terminated prior to the date hereof, and (b) such Shareholder has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Shareholder enforceable in accordance with its terms. 3.2 Specific Performance. The parties hereto hereby declare that it is impossible to measure in money the damages which will accrue to a party hereto or to their heirs, personal representatives, or assigns by reason of a failure to perform any of the obligations under this Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding to specifically enforce the provisions hereof, any person against whom such action or proceeding is brought hereby waives the claim or defense therein that such party or such personal 2 representative has an adequate remedy at law, and such person shall not offer in any such action or proceeding the claim or defense that such remedy at law exists. 3.3 Governing Law. This Agreement, and the rights of the parties hereto, shall be governed by and construed in accordance with the laws of the State of California as such laws apply to agreements among California residents made and to be performed entirely within the State of California. 3.4 Amendment or Waiver. This Agreement may be amended (or provisions of this Agreement waived) only by an instrument in writing signed by (i) NEA and (ii) a majority in the interest of the Shareholders. Any amendment or waiver so effected shall be binding upon each of the parties hereto and any assignee of any such party. 3.5 Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 3.6 Transfers to Affiliates. In the event a Shareholder transfers any of its Shareholder Shares to an affiliate of such Shareholder, such Shareholder shall cause such affiliate to do all things and execute and deliver all documents, as may be necessary to have such affiliate execute a written agreement, substantially in the form of this Agreement, pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions hereof as if such affiliate were a Shareholder. 3.7 Additional Shares. In the event that subsequent to the date of this Agreement any shares or other securities are issued on, or in exchange for, any of the Shareholder Shares by reason of any stock dividend, stock split, combination of shares, reclassification or the like, such shares or securities shall be deemed to be Shareholder Shares, as the case may be, for purposes of this Agreement. 3.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together shall constitute one and the same agreement. 3.9 Waiver. No waivers of any breach of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies of any other party hereto or with respect to any subsequent breach. 3.10 Attorney's Fees. In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals. 3 3.11 Notices. Any notices required in connection with this Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written notification of receipt. All notices shall be addressed to the holder appearing on the books of the Company or at such address as such party may designate by ten (10) days advance written notice to the other parties hereto. 3.12 Entire Agreement. This Agreement and the Exhibits hereto, along with the Purchase Agreement and each of the Exhibits thereto, constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein and therein 3.13 Massachusetts Business Trusts. A copy of the Agreement and Declaration of Trust of each Purchaser that is a fund or series investment company (each, a "Fund") organized as a Massachusetts business trust (each, a "Trust") is on file with the Secretary of the Commonwealth of Massachusetts. NEA and the other Shareholders acknowledge and agree that this Agreement is not executed on behalf of or binding upon any of the trustees, officers, directors or shareholders of a Trust individually, but is binding upon the applicable Fund and its assets and property. NEA agrees that no trustee, officer, director or shareholder of a Trust or the applicable Fund may be held personally liable or responsible for any obligations of a Fund arising out of this Agreement. With respect to all obligations of the Fund arising out of this Agreement, NEA shall look for payment or satisfaction of any claim solely to the assets and property of the Fund. NEA is expressly put on notice that the rights and obligations of each series of shares of a Trust under its Agreement and Declaration of Trust are separate and distinct from those of any and all other series. [THIS SPACE INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, the parties hereto have executed this VOTING AGREEMENT as of the date first above written. NEW ENTERPRISE ASSOCIATES: New Enterprise Associates 10, Limited Partnership By: NEA Partners 10, Limited Partnership Its General Partner By: /s/ Eugene A. Trainor, III -------------------------------------- Name: Eugene A. Trainer III Administrative General Partner & Chief Operating Officer Title: General Partner 5 NOVO NORDISK A/S By: /s/ Lars G. Karlsen Name: Lars G. Karlsen, Senior Vice President Protein Delivery Systems, Management Title: ------------------------------------------- STATE STREET RESEARCH AURORA FUND, A SERIES OF STATE STREET RESEARCH CAPITAL TRUST BY: STATE STREET RESEARCH & MANAGEMENT COMPANY, AS INVESTMENT ADVISER By: /s/ Peter A. Zuger Name: Peter A. Zuger Title: Managing Director STATE STREET RESEARCH AURORA PORTFOLIO, A SERIES OF METROPOLITAN SERIES FUND, INC. BY: STATE STREET RESEARCH & MANAGEMENT COMPANY, AS INVESTMENT SUB-ADVISER By: /s/ Peter A. Zuger Name: Peter A. Zuger Title: Managing Director 6 STATE STREET RESEARCH HEALTH SCIENCES FUND, A SERIES OF THE STATE STREET RESEARCH FINANCIAL TRUST By: /s/ illegible Title: Vice President MPM BIOEQUITIES MASTER FUND LP By: /s/ Kurt von Emster Name: Kurt von Emster Title: Managing Member DOMAIN PUBLIC EQUITY PARTNERS, L.P. BY: DOMAIN PUBLIC EQUITY ASSOCIATES, LLC By: Its General Partner Name: /s/ Nicole Vitullo Title: Managing Member CAMDEN PARTNERS STRATEGIC FUND II-A, L.P. BY: CAMDEN PARTNERS STRATEGIC II, LLC, ITS GENERAL PARTNER By: /s/ Richard M. Johnston Name: Richard M. Johnston Title: Managing Member 7 URSUS OFFSHORE LTD. By: /s/ illegible Title: Managing Director [NAME OF SHAREHOLDER] By: /s/ Richard Paul Thompson Name: Richard Paul Thompson 8 EXHIBIT A LIST OF SHAREHOLDERS Common Stock Number of and Preferred Number of Shares of Stock Combined Shares of Preferred Voting Power Beneficial Owner Common Stock Stock Percentage* ------------------------------------------ ------------ --------- -------------- New Enterprise Associates 10, 2,489,585 1,033,057 16.9% Limited Partnership Novo Nordisk Pharmaceuticals, Inc. 7,868,369 20.1 State Street Research Aurora Fund 1,282,500 3.3 State Street Research Aurora Portfolio 295,900 0.8 State Street Research Health Sciences Fund 288,100 0.7 MPM BioEquities Master Fund LP 206,611 2.1 Domain Public Equity Partners, LP 128,000 154,958 1.9 Camden Partners Strategic Fund II-A, 141,600 1.4 LP Ursus Offshore Limited 198,900 0.5 Richard Thompson 300,212 .8 Total 48.5
* Applicable percentages are based on 31,157,612 shares of Common Stock and 2,001,236 shares of Preferred Stock (convertible at any time into 8,004,944 shares of Common Stock) outstanding on January 31, 2003. -----END PRIVACY-ENHANCED MESSAGE-----