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UNITED STATES |
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SECURITIES
AND EXCHANGE |
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Washington,
D.C. 20549 |
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SCHEDULE 13D |
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Tercica, Inc.
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
88078L 10 5
(CUSIP Number)
William C. Bertrand, Jr., Esq.
Vice President, Secretary and General Counsel
MedImmune, Inc.
One MedImmune Way
Gaithersburg, MD 20878
(301) 398-0000
(Name,
Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 11, 2005
(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-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 §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Exchange Act) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).
CUSIP No. 88078L 10 5 |
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1. |
Names of Reporting
Persons. I.R.S. Identification Nos. of above persons (entities only) |
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions) |
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(a) |
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(b) |
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3. |
SEC Use Only |
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4. |
Source
of Funds (See Instructions) |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o |
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6. |
Citizenship or Place of Organization |
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Number of |
7. |
Sole
Voting Power |
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8. |
Shared
Voting Power |
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9. |
Sole
Dispositive Power |
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10. |
Shared Dispositive Power |
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11. |
Aggregate
Amount Beneficially Owned by Each Reporting Person |
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12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o |
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13. |
Percent
of Class Represented by Amount in Row (11) |
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14. |
Type of Reporting Person
(See Instructions) |
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Item 1. |
Security and Issuer |
This statement on Schedule 13D relates to the Common Stock (Common Stock), par value $0.001 per share, of Tercica, Inc., a Delaware corporation (the Company or the Issuer). The address of the Issuers principal executive offices is 651 Gateway Boulevard, Suite 950, South San Francisco, CA 94080. |
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Item 2. |
Identity and Background |
(a)-(c) This statement is being filed by MedImmune, Inc., a Delaware corporation (MedImmune). The principal office of MedImmune is located at One MedImmune Way, Gaithersburg, Maryland 20878. |
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MedImmune is a biotechnology company that uses advances in biological sciences to discover, develop, manufacture and commercialize products that treat or prevent infectious disease, cancer and inflammatory diseases. |
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The name and present principal occupation of MedImmunes executive officers and directors are listed on Schedule I attached hereto (MedImmune, together with the individuals identified on Schedule I, being referred to herein as the Reporting Persons). The business address of each Reporting Person is c/o MedImmune, Inc., One MedImmune Way, Gaithersburg, Maryland 20878. |
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(d) Neither MedImmune nor, to the best of its knowledge, any other Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). |
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(e) Neither MedImmune nor, to the best of its knowledge, any other Reporting Person has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
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(f) Each of the persons named on Schedule I hereto is a United States citizen. |
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Item 3. |
Source and Amount of Funds or Other Consideration |
On July 9, 2003, MedImmune, through its wholly-owned venture capital subsidiary, MedImmune Ventures, Inc., a Delaware corporation (MedImmune Ventures), acquired 4,000,000 shares of the Issuers Series B Preferred Stock (the Series B Preferred Stock) at a purchase price of $5.00 per share in a privately negotiated transaction. On November 5, 2003, the Issuer effected a 1-for-4 reverse stock split of its Common Stock and preferred stock, including the Series B Preferred Stock. On March 22, 2004, immediately prior to the closing of the Issuers initial public offering, the Series B Preferred Stock converted into 1,000,000 shares of Common Stock. |
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In July 2003, Wayne T. Hockmeyer, Ph.D, Chairman of the Board of MedImmune and President of MedImmune Ventures, became a member of the board of directors of the Issuer. In connection with that arrangement, on January 8, 2004 the Issuer granted to MedImmune, through MedImmune Ventures, an option to purchase up to 22,500 shares of Common Stock. |
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On February 11, 2005, MedImmune, through MedImmune Ventures, purchased an additional 2,000,000 shares of Common Stock at a purchase price of $8.00 per share in an underwritten public offering of the Issuers stock (the Follow-on Offering). |
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All of the purchases of Common Stock described herein were funded out of working capital. |
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Item 4. |
Purpose of Transaction |
The purpose of the purchases of the shares of Common Stock described in Item 3 is investment. Neither MedImmune nor, to the best of its knowledge, any person listed in Schedule I hereto, has any plans or proposals which relate to or would result in: |
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(a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; |
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(b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; |
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(c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; |
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(d) any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; |
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(e) any material change in the present capitalization or dividend policy of the Issuer; |
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(f) any other material change in the Issuers business or corporate structure; |
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(g) changes in the Issuers charter, By-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; |
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(h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; |
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(i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or |
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(j) any action similar to any of those enumerated above. |
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Notwithstanding the foregoing, MedImmune intends to review its investment in the Issuer on a continuing basis. Depending upon the price and availability of shares of Common Stock, subsequent developments affecting the Issuer, its business and prospects, other investment and business opportunities available to MedImmune, general stock market and economic conditions, tax considerations and other factors considered relevant, MedImmune may decide at any time to increase or to decrease the size of its investment in the Issuer. MedImmune may in the future seek to engage in discussions with management of the Issuer concerning potential investments by MedImmune in securities of the Issuer. Such discussions may relate to the acquisition by MedImmune of additional shares of Common Stock through open market purchases, privately negotiated transactions, a tender offer, an exchange offer or otherwise, as well as transactions specified in clauses (a) through (j) in the preceding paragraph. While MedImmune has no current plans or proposals to acquire the Issuer or its assets, MedImmune is continually evaluating acquisition opportunities that are of strategic interest and consistent with MedImmunes business strategy. Accordingly, in that context, MedImmune may in the future seek to engage in discussions with management of the Issuer concerning whether the business and prospects of the Issuer are strategically aligned with those of MedImmune. As described in Item 3, Wayne T. Hockmeyer, Ph.D, a Reporting Person, currently serves on the board of directors of the Issuer and has served in that capacity since July 2003. |
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Item 5. |
Interest in Securities of the Issuer |
(a)-(b) As of the close of business on February18, 2005, MedImmune beneficially owned an aggregate of 3,007,500 shares of Common Stock, which constitutes approximately 9.55% of the issued and outstanding shares of Common Stock. This calculation is based on a total of 31,495,869 shares of Common Stock outstanding as of December 31, 2004, as reported by the Issuer in its final prospectus relating to the Follow-on Offering filed pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended, on February 8, 2005, as adjusted for the issuance of 6,900,000 shares of Common Stock in such offering. |
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MedImmune does not directly own the Common Stock of the Issuer. By reason of the provisions of Rule 13d-3 under the Exchange Act, MedImmune is deemed to own beneficially the securities of the Issuer that are owned by MedImmune Ventures. In addition, the amount of shares that are reported herein as being beneficially owned by MedImmune include 7,500 shares that may be acquired within 60 days pursuant to the option described in Item 3. |
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(c) The information set forth in Item 3 hereof is hereby incorporated by reference into this Item 5(c). Except as described in Schedule II, no transactions in Common Stock were effected during the last 60 days by the Reporting Persons. |
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(d) To the knowledge of MedImmune, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of the Issuer deemed to be beneficially owned by the Reporting Persons. |
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(e) Not applicable. |
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Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
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In connection with the Issuers sale of its Series B Preferred Stock, the Issuer, MedImmune Ventures and certain other Stockholders entered into an Amended and Restated Investors Rights Agreement, dated July 9, 2003, which provided for certain voting rights, registration rights, rights of first refusal and other rights and transfer restrictions, most of which terminated at the closing of the Issuers initial public offering. |
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The Investor Rights Agreement grants MedImmune, through MedImmune Ventures, the following registration rights. Beginning 180 days after the closing of the Issuers initial public offering, MedImmune is entitled to require the Issuer to register up to 1,000,000 shares of Common Stock under the Securities Act, subject to limitations and restrictions. The Issuer is only required to act upon two such requests on behalf of the purchasers of its Series B Preferred Stock, which includes MedImmune Ventures. Also, if at any time the Issuer proposes to register any of its securities under the Securities Act, either for its own account or for the account of other securities holders, MedImmune will be entitled to notice of the registration and will be entitled to include, at the Issuers expense, such shares of Common Stock in the registration. In addition, MedImmune may require the Issuer, at the Issuers expense and on not more than two occasions in any 12 month period, to file a registration statement on Form S-3 under the Securities Act covering such shares of Common Stock when registration of the Issuers shares under this form becomes possible. These rights shall terminate on the earlier of five years after the consummation of the effective date of the Issuers initial public offering or when MedImmune is able to sell all 1,000,000 shares pursuant to Rule 144 under the Securities Act in any 90-day period. These registration rights are subject to conditions and limitations, including the right of the underwriters to limit the number of shares of Common Stock included in any registration statement. |
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As described in Item 3 above, on January 8, 2004, the Issuer granted MedImmune Ventures an option to purchase up to 22,500 shares of Common Stock. The option vests in equal amounts over three years, beginning on January 8, 2005, and expires on January 7, 2014. The option is subject to Dr. Hockmeyer continuing to serve on the Issuers board of directors but shall be exercisable for three months after Dr. Hockmeyer ceases to be a member of the board. |
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In conjunction with the Follow-on Offering, MedImmune Ventures has entered into a letter agreement, dated January 21, 2005, with the underwriters of the Follow-on Offering by which MedImmune Ventures has agreed not to (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, for a period ending 60 days after the date of the final prospectus relating to the Offering, with exceptions as provided in such letter agreement. The foregoing summary of the terms of such letter agreement is qualified by reference to the full text of the lockup letter agreement, which is included as Exhibit 2 to this Schedule 13D, and is incorporated herein by reference. |
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Except as described above, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and listed on Schedule I and between such persons and any other person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. |
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Item 7. |
Material to Be Filed as Exhibits |
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Exhibit 1. |
Amended and Restated Investors Rights Agreement, dated July 9, 2003 (incorporated by reference from Exhibit 10.10 to the Issuers Registration Statement on Form S-1, filed on September 12, 2003). |
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Exhibit 2. |
Option Agreement, dated January 8, 2004. |
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Exhibit 3. |
Letter Agreement, dated January 21, 2005. |
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Signature
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: February 22, 2005 |
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MEDIMMUNE, INC. |
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By: |
/s/ William C. Bertrand, Jr. |
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Name: |
William C. Bertrand, Jr. |
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Title: |
Vice
President, Secretary and |
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Schedule I
MedImmune, Inc.
Executive Officers
Name |
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Principal Occupation(1) |
Wayne T. Hockmeyer, Ph.D. |
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Chairman of the Board of MedImmune, Inc. and President of MedImmune Ventures, Inc. |
David M. Mott |
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Chief Executive Officer, President and Vice Chairman of the Board |
James F. Young, Ph.D. |
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President, Research and Development |
Armando Anido, R.Ph |
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Executive Vice President, Sales and Marketing |
Edward Connor, M.D. |
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Executive Vice President and Chief Medical Officer |
Lota S. Zoth |
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Senior Vice President and Chief Financial Officer |
William C. Bertrand, Jr. |
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Vice President, Secretary and General Counsel |
Bernardus N.M. Machielse, Drs. |
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Senior Vice President, Operations |
Mark Spring |
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Vice President, Finance and Controller |
Directors
Name |
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Principal Occupation |
Wayne T. Hockmeyer, Ph.D. |
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Chairman of the Board of MedImmune, Inc. and President of MedImmune Ventures, Inc. |
David M. Mott |
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Chief Executive Officer and President of MedImmune, Inc. |
David Baltimore, Ph.D. |
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President of the California Institute of Technology |
M. James Barrett, Ph.D. |
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Chairman of the Board of Sensors for Medicine and Science,Inc., and a General Partner of New Enterprise Associates |
Melvin D. Booth |
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Retired President and Chief Operating Officer of MedImmune, Inc. |
James H. Cavanaugh, Ph.D. |
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General Partner of HealthCare Ventures LLC (HCV) |
Barbara Hackman Franklin |
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President and Chief Executive Officer of Barbara Franklin Enterprises |
Gordon S. Macklin |
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Independent Financial Advisor |
Elizabeth H. S. Wyatt |
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Retired Vice President of Corporate Licensing of Merck & Co., Inc. |
(1) Unless otherwise stated, the principal occupation of each executive officer is with MedImmune, Inc.
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Exhibit 2
TERCICA, INC.
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
This Amended and Restated Stock Option Agreement (this Option Agreement) is entered into by and between Tercica, Inc. (the Company) and MedImmune Ventures, Inc. (MVI) effective as of January 8, 2004.
R E C I T A L S
WHEREAS, Dr. Wayne T. Hockmeyer (Dr. Hockmeyer) serves as a director of the Company in his capacity as President of MVI, a significant stockholder of the Company;
WHEREAS, pursuant to Dr. Hockmeyers arrangement with MVI, all equity compensation to be granted to Dr. Hockmeyer in connection with his service as a member of the Board is to be granted instead to MVI;
WHEREAS, on January 8, 2004, the Administrator mistakenly granted an option to purchase 22,500 shares of Common Stock in the name of Dr. Hockmeyer (the Original Option), which option should have been granted in the name of MVI; and
NOW, THEREFORE, the Company hereby grants MVI the Option described below outside of any equity compensation plan of the Company to correct the mistaken grant made in the name of Dr. Hockmeyer.
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percent (50%) or more of the total voting power represented by the Companys then outstanding voting securities; or (ii) The consummation of the sale or disposition by the Company of all or substantially all of the Companys assets; or (iii) The consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.
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Medlmmune
Ventures, Inc.
One Medlmmune Way
Gaithersburg, MD 20878
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The undersigned Optionee has been granted an Option to purchase Common Stock of the Company, subject to the terms and conditions of this Option Agreement, as follows:
Date of Grant |
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January 8, 2004 |
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Vesting Commencement Date |
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January 8, 2004 |
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Exercise Price Per Share |
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$4.00 |
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Total Number of Shares Granted |
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22,500 |
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Total Exercise Price |
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$90,000.00 |
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Type of Option: |
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Nonstatutory Stock Option |
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Term/Expiration Date: |
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January 7, 2014 |
Vesting Schedule:
This Option shall vest and become exercisable according to the following vesting schedule:
One-third (1/3rd) of the Shares subject to the Option shall vest one (1) year after the Vesting Commencement Date, and one-third (1/3rd) of the shares subject to the Option shall vest each year thereafter, subject to Dr. Hockmeyer continuing to be a Service Provider on such dates.
Termination Period:
This Option shall be exercisable for three (3) months after Dr. Hockmeyer ceases to be a Service Provider; provided, however, if Dr. Hockmeyer ceases to be a Service Provider as a result of Dr. Hockmeyers death or Disability, this Option may be exercised for one (1) year after Dr. Hockmeyer ceases to be a Service Provider. In no event may Optionee exercise this Option after the Term/Expiration Date as provided above.
This Option amends and restates in its entirety the Original Option granted in the name of Dr. Hockmeyer. The Original Option shall have no further force or effect.
3. Terms and Conditions
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No Shares shall be issued pursuant to the exercise of an Option unless such issuance and such exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to the Optionee on the date on which the Option is exercised with respect to such Shares.
Optionee agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which are consistent with the foregoing or which are necessary to give further effect thereto. In addition, if :requested by the Company or the representative of the underwriters of Common Stock (or other securities) of the Company, Optionee shall provide, within ten (10) days of such request, such information as may be required by the Company or such representative in
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connection with the completion of any public offering of the Companys securities pursuant to a registration statement filed under the Securities Act. The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until the end of said one hundred eighty (180) day period. Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall be bound by this Section.
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with the consent of the successor corporation, provide for the consideration to be received upon the exercise of this Option, for each Share of Optioned Stock subject to this Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of common stock in the merger or Change in Control.
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IMPLIED PROMISE OF CONTINUED ENGAGEMENT OF DR. HOCKMEYER AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH DR. HOCKMEYERS RIGHT OR THE COMPANYS RIGHT TO TERMINATE DR. HOCKMEYERS RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee has reviewed this Option Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of this Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under this Option Agreement. Optionee further agrees to notify the Company upon any change in the address indicated below.
Dated: January 17, 2005 |
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OPTIONEE |
THE COMPANY |
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MEDIMMUNE VENTURES, INC. |
TERCICA, INC. |
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By |
By |
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/s/Edward T. Mather |
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/s/ Stephen N. Rosenfield |
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Edward T. Mathers |
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Stephen N. Rosenfield |
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Print Name |
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Senior VP Legal Affairs |
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Authorized Person |
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General Counsel and Secretary |
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Title |
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Address:
One MedImmune Way
Gaithersburg, MD 20878
The undersigned hereby acknowledges that the Original Option (as defined above) is null and void and of no further force and effect.
/s/Wayne T. Hockmeyer |
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Wayne T. Hockmeyer |
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EXHIBIT A
MEDIMMUNE VENTURES, INC. STOCK OPTION AGREEMENT
EXERCISE NOTICE
Tercica, Inc.
651 Gateway Boulevard, Suite 950
South San Francisco, CA 94080
Attention: Assistant Secretary
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and any Common Stock reserved for future issuance pursuant to plans approved by the Board of Directors.
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(30) days after receipt of the Notice or in the manner and at the times set forth in the Notice.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE ACT) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
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OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET FORTH IN THE EXERCISE NOTICE BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE SHARES.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER FOR A PERIOD NOT TO EXCEED 180 DAYS FOLLOWING THE EFFECTIVE DATE OF THE UNDERWRITTEN PUBLIC OFFERING OF THE COMPANYS SECURITIES AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT THE CONSENT OF THE COMPANY OR THE MANAGING UNDERWRITER.
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Submitted by: |
Accepted by: |
OPTIONEE |
THE COMPANY |
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MEDIMMUNE VENTURES, INC. |
TERCICA, INC. |
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Address: |
Address: |
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One Medlmmune Way |
651 Gateway Boulevard, Suite 905 |
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Date Received |
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: |
MEDIMMUNE VENTURES, INC. |
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COMPANY: |
TERCICA, INC. |
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SECURITY: |
COMMON STOCK |
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AMOUNT: |
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DATE: |
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In connection with the purchase of the above-listed Securities, the undersigned Optionee represents to the Company the following:
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who subsequently holds the Securities less than two years, the satisfaction of the certain conditions, including: (1) the resale being made through a broker in an unsolicited brokers transaction or in transactions directly with a market maker (as said teem is defined under the Securities Exchange Act of 1934); and, in the case of an affiliate, (2) the availability of certain public information about the Company, (3) the amount of Securities being sold during any three month period not exceeding the limitations specified in Rule 144(e), and (4) the timely filing of a Form 144, if applicable.
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Signature of Optionee: |
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MEDIMMUNE VENTURES, INC. |
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Exhibit 3
January 21, 2005
Lehman Brothers Inc.
SG Cowen Securities Corporation
Robert W. Baird & Co.
Friedman Billings
Harris Nesbitt Gerard
c/o Lehman Brothers Inc.
745 7th Avenue
New York, New York 10019
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers Inc. (Lehman), SG Cowen Securities Corporation, Robert W. Baird & Co., Friedman Billings and Harris Nesbitt Gerard (collectively, the Underwriters) propose to enter into an Underwriting Agreement (the Underwriting Agreement) with Tercica, Inc., a Delaware corporation (the Company), providing for a public offering (the Public Offering) by the several Underwriters of shares (the Shares) of the common stock (par value $0.001 per share) of the Company (the Common Stock).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Lehman on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 60 days after the date of the final prospectus relating to the Public Offering (the Prospectus): (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly (Transfer), any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any Shares to the Underwriters pursuant to the Underwriting Agreement, (b) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, (c) bona fide gifts or other Transfers of shares of Common Stock for no consideration, or (d) Transfers of any shares of Common Stock to any trust for the direct or indirect benefit of the undersigned or to the immediate family (meaning any relationship by blood, marriage or adoption, not more remote than first cousin) of the undersigned, provided, however, that in the case of any Transfer or distribution pursuant to clause (c) or (d), (i) each donee or distributee shall execute and deliver to Lehman a duplicate form of this lock-up agreement, (ii) no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as amended, shall be
required or shall be made voluntarily in connection with such Transfer or distribution (other than a filing on a Form 5 for the Companys fiscal year 2004, which are due no later than February 14, 2005), and (iii) such Transfer or distribution shall not involve a disposition for value.
In addition, notwithstanding the foregoing, if the undersigned is a partnership or limited liability company, the undersigned may transfer the undersigneds shares of Common Stock to partners or members of the undersigned, as applicable, or to the estates of any such partners, or members, and any partner or member who is an individual may transfer any such shares of Common Stock by gift, will or intestate succession; and if the undersigned is a trust, the undersigned may transfer the undersigneds shares of Common Stock to any beneficiary of the undersigned or to the estate of any such beneficiary; and if the undersigned is a corporation, the undersigned may transfer the undersigneds shares of Common Stock to majority-owned subsidiaries of the undersigned, to holders of securities possessing at least 50% of the undersigneds outstanding voting power or to entities under common control with the undersigned; provided, however, that in any such case, it shall be a condition to the Transfer that (i) each transferee shall execute and deliver to Lehman a duplicate form of this lock-up agreement, (ii) no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as amended, shall be required or shall be made voluntarily in connection with such Transfer (other than a filing on a Form 5 for the Companys fiscal year 2004, which are due no later than February 14, 2005), and (iii) such Transfer shall not involve a disposition for value.
In addition, the undersigned agrees that, without the prior written consent of Lehman on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 60 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions with the Companys transfer agent and registrar against the Transfer of the undersigneds share of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this lockup agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigneds heirs, legal representatives, successors and assigns; provided, however, that this lock-up agreement shall terminate automatically (i) on March 31, 2005 in the event that no Shares have been purchased and paid for pursuant to the Underwriting Agreement by such date; or (2) if the Underwriting Agreement has not been executed and the Company has informed the Underwriters in writing that it is terminating the Public Offering.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
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Very truly yours, |
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MedImmune Ventures, Inc. |
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/s/David M. Mott |
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By: David M. Mott |
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Authorized Person |