-----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, APgoj4ikFeY97q3sxvLZKYgL80hL84R0WUTBeTJIlKKq25aDaQcJxfo4Wbd20grK U/o8Sg99Dru0NKG8XXLASQ== 0000950135-05-007136.txt : 20051227 0000950135-05-007136.hdr.sgml : 20051226 20051227170114 ACCESSION NUMBER: 0000950135-05-007136 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051227 DATE AS OF CHANGE: 20051227 GROUP MEMBERS: ADVENT HEALTHCARE AND LIFE SCIENCE III LIMITED PARTNERSHIP GROUP MEMBERS: ADVENT HEALTHCARE AND LIFE SCIENCE III-A LIMITED PARTNERSHIP GROUP MEMBERS: ADVENT INTERNATIONAL LLC GROUP MEMBERS: ADVENT PARTNERS HLS III LIMITED PARTNERSHIP GROUP MEMBERS: ADVENT PARTNERS LIMITED PARTNERSHIP GROUP MEMBERS: AHLS III GP LIMITED PARTNERSHIP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CORGENTECH INC CENTRAL INDEX KEY: 0001131517 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 770503399 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79795 FILM NUMBER: 051287391 BUSINESS ADDRESS: STREET 1: 650 GATEWAY BOULEVARD STREET 2: -- CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 6506249600 MAIL ADDRESS: STREET 1: 650 GATEWAY BOULEVARD CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ADVENT INTERNATIONAL CORP ET AL CENTRAL INDEX KEY: 0000939424 IRS NUMBER: 042840139 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 101 FEDERAL STREET CITY: BOSTON STATE: MA ZIP: 02110 BUSINESS PHONE: 6179519400 MAIL ADDRESS: STREET 1: 101 FEDERAL STREET CITY: BOSTON STATE: MA ZIP: 02110 SC 13D 1 b58294cisc13d.txt ADVENT INTERNATIONAL CORPORATION CUSIP NO. 21872P501 Schedule 13D Page 1 of 17 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 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. _________)(1) Corgentech Inc. (Name of issuer) Common Stock, par value $0.001 (Title of class of securities) 21872P501 (CUSIP number) Janet L. Hennessy, Vice President 617-951-9447 C/o Advent International Corporation, 75 State Street, 29th Floor Boston, MA 02109 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 15, 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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box:.[ ] Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 17 Pages) - ---------- (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 CUSIP NO. 21872P501 Schedule 13D Page 2 of 17 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 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). CUSIP NO. 21872P501 Schedule 13D Page 3 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent International Corporation - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,112,286 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 1,112,286 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,112,286 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 5.52% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO, IA - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 4 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent International LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,095,603 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 1,095,603 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,095,603 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 5.44% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 5 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) AHLS III GP Limited Partnership - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,095,603 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 1,095,603 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,095,603 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 5.44% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 6 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent Healthcare and Life Sciences III Limited Partnership - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 381,038 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 381,038 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 381,038 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 1.89% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 7 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent Healthcare and Life Sciences III-A Limited Partnership - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 714,565 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 714,565 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 714,565 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 3.55% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 8 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent Partners Limited Partnership - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 3,177 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 3,177 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,177 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 0.02% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 9 of 17 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Advent Partners HLS III Limited Partnership - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) [X] (B) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 Source of Funds WC - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 13,506 NUMBER OF -------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY None OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 13,506 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER None - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 13,506 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 0.06% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------------------------------------------------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 10 of 17 This Schedule is being filed by the Reporting Persons (as defined in item 2 below) and relates to an Agreement and Plan of Merger among Corgentech Inc., Element Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Corgentech ("Acquisition Sub"), AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"), and Joseph Marr, as representative for the AlgoRx stockholders, dated as of September 23, 2005 (the "Merger Agreement") pursuant to which on December 15, 2005 Acquisition Sub merged with and into AlgoRx and AlgoRx became a wholly-owned subsidiary of Corgentech (the "Merger"). Each share of AlgoRx capital stock was converted into the right to receive shares of common stock of Corgentech. Item 1. Security and Issuer The class of equity securities to which this statement relates is common stock, par value $0.001, of Corgentech Inc. ("Corgentech"). The principal executive offices of Corgentech are located at 650 Gateway Boulevard, South San Francisco, California 94080. Item 2. Identity and Background (a) (b) (c) (f) This statement is being filed by the following entities: (1) Advent International Corporation, a Delaware corporation; (2) Advent International LLC, a Massachusetts LLC; (3) AHLS III GP Limited Partnership, a Massachusetts limited partnership; (4) Advent Healthcare and Life Sciences III Limited Partnership, a Delaware limited partnership; (5) Advent Healthcare and Life Sciences III-A Limited Partnership, a Delaware limited partnership; (6) Advent Partners II Limited Partnership, a Delaware limited partnership; (7) Advent Partners HLS III Limited Partnership, a Delaware limited partnership; The entities listed in subparagraphs (1) through (7) above are herein collectively referred to as the "Reporting Persons" and individually as a "Reporting Person." CUSIP NO. 21872P501 Schedule 13D Page 11 of 17 Advent International Corporation ("Advent") is a Delaware corporation, and the persons serving as its directors and executive officers are set forth on Schedule A hereto. Advent is the General Partner of Advent Partners II Limited Partnership and Advent Partners HLS III Limited Partnership. Advent is the Manager of Advent International LLC. Advent International LLC is the General Partner of AHLS III GP Limited Partnership, which in turn, is the General Partner of Advent Healthcare and Life Sciences III Limited Partnership and Advent Healthcare and Life Sciences III-A Limited Partnership. The principal business address of each Reporting Person is c/o Advent International Corporation, 75 State Street, Boston, MA 02109. The principal business of Advent is to operate as an investment advisory firm and to make private equity investments. The principal business of each Reporting Person other than Advent and Advent International LLC is to provide risk capital for, and make investments in the securities of, privately held and other businesses. (d) (e) During the last five years, none of the Reporting Persons nor any person listed on Schedule A has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the last five years, none of the Reporting Persons nor any person listed on Schedule A has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which any such person 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 violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The Reporting Persons previously purchased 11,814,345 shares of AlgoRx capital stock from AlgoRx prior to the effectiveness of the Merger on December 15, 2005 (the "Previously Purchased AlgoRx Shares"). The source of the funds for the Previously Purchased AlgoRx Shares was the working capital of the Reporting Persons. Pursuant to the Merger Agreement, on December 15, 2005 Acquisition Sub merged with and into AlgoRx and AlgoRx became a wholly-owned subsidiary of Corgentech. Each share of AlgoRx capital stock, including the Previously Purchased AlgoRx shares, was converted into the right to receive shares of common stock of Corgentech. Item 4. Purpose of Transaction. (a) - (j) The Merger Agreement provided for the acquisition by Corgentech of all of the outstanding capital stock of AlgoRx through a merger of Acquisition Sub with and into AlgoRx, as a result of which AlgoRx became a wholly-owned subsidiary of Corgentech. On the CUSIP NO. 21872P501 Schedule 13D Page 12 of 17 effective date of the merger, December 15, 2005, Corgentech effected a 1-for-4 reverse stock-split. Under the rules and regulations of The NASDAQ Stock Market Inc., the acquisition of AlgoRx by Corgentech was deemed to be a "reverse" merger. Therefore, Corgentech's common stock, symbol "CGTK," was delisted from the NASDAQ National Market. Corgentech's common stock was relisted on the NASDAQ National Market prior to the open of market on December 16, 2005 under the symbol "CGTKD" and will trade under such symbol for 20 days, after which it will return to the symbol "CGTK". The shares acquired by InterWest Partners VIII, LP and related entities in the Merger were acquired solely for investment purposes. Subject to the foregoing, none of the Reporting Persons have a present plan or proposal that relates to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. However, each of the Reporting Persons reserves the right to propose or participate in future transactions which may result in one or more of such actions, including but not limited to, an extraordinary corporate transaction, such as a merger, reorganization or liquidation, sale of a material amount of assets of Corgentech or its subsidiaries, or other transactions which might have the effect of causing Corgentech's common stock to cease to be listed on the NASDAQ National Market or causing the common stock to become eligible for termination of registration under section 12(g) of the Act. The Reporting Persons also retain the right to change their investment intent at any time, to acquire additional shares of common stock or other securities of Corgentech from time to time, or to sell or otherwise dispose of all or part of the common stock beneficially owned by them (or any shares of common stock into which such securities are converted) in any manner permitted by law. The Reporting Persons may engage from time to time in ordinary course transactions with financial institutions with respect to the securities described herein. The description contained in this Item 4 of the transactions contemplated by the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is incorporated by reference in this Schedule 13D -- see Exhibit 2.1. CUSIP NO. 21872P501 Schedule 13D Page 13 of 17 Item 5. Interest in Securities of the Issuer. (a) The following table sets forth the aggregate number and percentage of the Common Stock beneficially owned by each Reporting Person named in Item 2 of this statement (based upon 20,139,091 shares of Common Stock outstanding as December 16, 2005). The aggregate number and percentage of the Common Stock beneficially owned by each Reporting Person is calculated in accordance with Rule 13d-3.
Number of Shares -------------------------------- Percentage Under of Shares Reporting Person Common Warrants Total Outstanding - ---------------- --------- -------- --------- ----------- Advent International Corporation (1)(2)(3) 1,112,286 0 1,112,286 5.52% Advent International LLC (1)(2) 1,095,603 0 1,095,603 5.44% AHLS III GP Limited Partnership (1) (2) 1,095,603 0 1,095,603 5.44% Advent Healthcare and Life Sciences III Limited Partnership (1) (2) 381,038 0 381,038 1.89% Advent Healthcare and Life Sciences III-A Limited Partnership (1) (2) 714,565 714,565 3.55% Advent Partners II Limited Partnership (3) 3,177 0 3,177 0.02% Advent Partners HLS III Limited Partnership (3) 13,506 0 13,506 0.06%
(1) Advent is the General Partner of the indicated Reporting Persons, and the beneficial ownership of Advent in such Reporting Persons derives from such relationship. (2) Advent is the Manager of Advent International LLC, which in turn is the General Partner of the indicated Reporting Persons. The beneficial ownership of Advent and Advent International LLC Partnership in such Reporting Persons derive from such relationships. (3) AIC is the General Partner of the indicated Reporting Person. As such, AIC has the power to vote and dispose of the securities of Advent Partners II Limited Partnership and Advent Partners HLS III Limited Partnership. The beneficial ownership of AIC derives from such power. (c) Other than the acquisition of the Securities, none of the Reporting Persons and the persons set forth on Schedule A and in Item 2(d) hereto has effected any transactions in the Common Stock during the last 60 days. CUSIP NO. 21872P501 Schedule 13D Page 14 of 17 (d) Except as set forth in this Item 5, no person other than each respective record owner referred to herein of the Securities is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Securities. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Certain of AlgoRx's directors, executive officers and stockholders, including the Reporting Persons, have entered into lock-up agreements pursuant to which they agreed, as AlgoRx stockholders or designated beneficiaries under the AlgoRx 2005 Retention Bonus Plan entitled to receive shares of Corgentech common stock pursuant to the Merger, not to sell, transfer, hedge or perform similar transactions with respect to Corgentech's common stock beneficially owned by them for 90 days following the consummation of the Merger, except in limited circumstances (the "AlgoRx Lock-up Agreements"). Pursuant to the Merger Agreement, Corgentech entered into an Escrow Agreement with Mellon Investor Services and Joseph Marr, as representative of the AlgoRx stockholders, on December 15, 2005 (the "Escrow Agreement"), pursuant to which, at the effective time of the Merger, approximately 5% of the aggregate number of shares of Corgentech common stock issued pursuant to the Merger Agreement was placed in an escrow account. The shares were placed in the escrow account to satisfy the indemnification obligations of the AlgoRx stockholders and the designated beneficiaries of the AlgoRx 2005 Retention Bonus Plan (the "Escrow Accountholders") pursuant to the Merger Agreement. The Escrow Accountholders will have voting rights with respect to their shares of Corgentech common stock held in escrow and the exchange agent will distribute any cash dividends or other distributions to such Escrow Accountholders. Except in certain circumstances, six months after the effective time of the merger, when the representations and warranties in the merger agreement have terminated, the exchange agent will follow the procedures in the Merger Agreement and Escrow Agreement to release the shares in the escrow account, unless Corgentech has delivered a claim for indemnification. The shares in Item 5(a) and 5(b) above include the proportionate interest of each entity in escrow shares deposited with the escrow agent according to the Escrow Agreement. The description contained in this Item 6 of the transactions contemplated by the AlgoRx Lock-up Agreements and the Escrow Agreement is qualified in its entirety by reference to the full text of the form of AlgoRx Lock-up Agreement and the Escrow Agreement, copies of which are incorporated by reference in this Schedule 13D -- see Exhibit 2.2 and 2.3. CUSIP NO. 21872P501 Schedule 13D Page 15 of 17 Other than as described in this Schedule 13D (including pursuant to the Merger Agreement, AlgoRx Lock-up Agreements and the Escrow Agreement) the Reporting Persons are not parties to any other contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of Corgentech, including but not limited to transfer or voting of any of the securities, finder's 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. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. This Amendment hereby amends and supplements the Exhibits listed in Item 7 of the Schedule 13D by adding the following thereto:
Exhibit No. Description - ----------- ----------- 2.1 (1) Agreement of Merger, dated as of September 23, 2005, by and among Corgentech Inc., Element Acquisition Corp., a wholly-owned subsidiary of Corgentech Inc., AlgoRx Pharmaceuticals, Inc. and Joseph Marr. 2.2 Form of AlgoRx Lock-up Agreement dated as of September 23, 2005, executed by each of Ronald Burch, Jeffrey Rona, Charles Cohen, Carter Eckert, Arnold Oronsky, Michael Powell and entities affiliated with each of InterWest Partners VIII, Sofinnova Ventures and Advent Partners. 2.3 Escrow Agreement, dated as of December 15, 2005, by and among Corgentech Inc., Mellon Investor Services and Joseph Marr.
(1) Filed as Exhibit 2.1 to Corgentech Inc.'s Registration Statement Form S-4, as amended (333-1291777), originally filed with the Commission on October 21, 2005, and incorporated by reference herein. CUSIP NO. 21872P501 Schedule 13D Page 16 of 17 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. December 27, 2005 Advent Healthcare and Life Sciences III Limited Partnership Advent Healthcare and Life Sciences III-A Limited Partnership By: AHLS III GP Limited Partnership, General Partner By: Advent International LLC, General Partner By: Advent International Corporation, Manager By: Janet L. Hennessy, Vice President* Advent Partners II Limited Partnership Advent Partners HLS III Limited Partnership By: Advent International Corporation, General Partner By: Janet L. Hennessy, Vice President* Advent International Corporation By: Janet L. Hennessy, Vice President* * For all of the above: Janet L. Hennessy, Vice President - ------------------------------------- CUSIP NO. 21872P501 Schedule 13D Page 17 of 17 SCHEDULE A The name and present principal occupation of each executive officer and director of Advent International Corporation is set forth below. The business address of each executive officer and director of Advent International Corporation is c/o Advent International Corporation, 75 State Street, Boston, Massachusetts 02109. All of the persons listed below are United States citizens.
Position with Principal Advent International Occupation Name Corporation (if different) - ---- ----------------------- --------------------- Peter A. Brooke Chairman Thomas H. Lauer Senior Vice President Chief Financial Officer Assistant Secretary Executive Officers' Committee Member Ernest G. Bachrach Executive Officers' Committee Member David M. Mussafer Executive Officers' Committee Member William C. Schmidt Executive Officers' Committee Member John B. Singer Executive Officers' Committee Member Steven M. Tadler Executive Officers' Committee Member Janet L. Hennessy Vice President Assistant Secretary Douglas R. Brown Director John F. Brooke Director General Partner of Brooke Private Equity Mark Hoffman Director Chairman of Cambridge Research Group Frank Savage Director President and Chief Executive Officer of Savage Holdings LLC David W. Watson Secretary Attorney
EX-2.2 2 b58294ciexv2w2.txt FORM OF ALGORX LOCK-UP AGREEMENT, DATED SEPTEMBER 23, 2005 EXHIBIT 2.2 September 23, 2005 Corgentech Inc. 650 Gateway Blvd. South San Francisco, CA 94080 Ladies and Gentlemen: The undersigned has been advised that as of the date hereof the undersigned may be deemed to be an "affiliate" of AlgoRx Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), as the term "affiliate" is defined for purposes of paragraphs (c) and (d) of Rule 145 of the Rules and Regulations (the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "ACT"). Pursuant to the terms of the Agreement and Plan of Merger, dated as of September 23, 2005 (the "AGREEMENT"), among Corgentech, Inc., a Delaware corporation ("PARENT"), Element Acquisition Corp., a Delaware corporation ("MERGER SUB"), and the Company, at the Effective Time (as defined in the Agreement) the Merger Sub will be merged with and into Company and the Company will become a wholly-owned subsidiary of Parent. As a result of the Merger (as defined in the Agreement), the undersigned will be entitled to receive shares of Common Stock, par value $0.01 per share, of Parent ("PARENT COMMON STOCK") as a designated beneficiary under the AlgoRx 2005 Retention Bonus Plan or in exchange for shares of preferred stock or common stock of the Company owned by the undersigned. Pursuant to Section 5.7(c) of the Agreement, in order to induce Parent to enter into the Agreement, AlgoRx has agreed to use its best efforts to cause its officers, directors and affiliates (including affiliated funds), to execute and deliver letter agreements in the form hereof. The undersigned hereby represents and warrants to, and covenants with, Parent that in the event the undersigned receives any Parent Common Stock in the Merger: A. The undersigned shall not make any sale, transfer or other disposition of the Parent Common Stock in violation of the Act or the Rules and Regulations. B. The undersigned has carefully read this letter and discussed its requirements and other applicable limitations upon the undersigned's ability to sell, transfer or otherwise dispose of the Parent Common Stock, to the extent the undersigned has felt it necessary, with the undersigned's counsel. C. The undersigned has been advised that the issuance of shares of Parent Common Stock to the undersigned in connection with the Merger is expected to be registered under the Act by a Registration Statement on Form S-4. However, the undersigned has also been advised that because (i) at the time of the Merger's submission for a vote of the stockholders of the Company the undersigned may be deemed an affiliate of the Company, and (ii) the distribution by the undersigned of the Parent Common Stock has not been registered under the Act, the undersigned may not sell, transfer or otherwise dispose of Parent Common Stock issued to the undersigned in the Merger unless (a) such sale, transfer or other disposition has been registered under the Act, (b) such sale, transfer or other disposition is made in conformity with the volume and other applicable limitations imposed by Rule 145 under the Act, or (c) in the opinion of counsel reasonably acceptable to Parent, such sale, transfer or other disposition is otherwise exempt from registration under the Act. D. The undersigned understands that Parent will be under no obligation to register the sale, transfer or other disposition of the Parent Common Stock by the undersigned or on the undersigned's behalf under the Act or to take any other action necessary in order to make compliance with an exemption from such registration available. E. The undersigned will not, without the prior written consent of Parent, during the period commencing on the date hereof and ending ninety (90) days after such date and time as the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement, (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 of the Parent Common Stock (or other securities of Parent), or (ii) enter into any swap, hedging or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Parent Common Stock (or other securities) held by the undersigned, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of the Parent Common Stock or other such securities, in cash or otherwise; provided, however, that the undersigned may, without the prior written consent of Parent, sell any of the Parent Common Stock in order to meet the undersigned's federal and state income tax liabilities in connection with the undersigned receipt of any Parent Common Stock pursuant to the Agreement. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Parent Common Stock without the prior written consent of Parent, provided that (1) Parent receives a signed agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported in any public report or filing with the Securities Exchange Commission, or otherwise and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (x) as a bona fide gift or gifts; or (y) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned. For purposes of -2- this letter agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. F. The undersigned understands that that there may be placed on the certificates for the Parent Common Stock issued to the undersigned, or any substitutions therefor, a legend stating in substance: "THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF AN AFFILIATE AGREEMENT DATED SEPTEMBER 23, 2005, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF CORGENTECH, INC." It is understood and agreed that the legend set forth in paragraph F above shall be removed by delivery of substitute certificates without such legend if the undersigned shall have delivered to Parent (i) a copy of a letter from the staff of the Commission, or an opinion of counsel, in form and substance reasonably satisfactory to Parent to the effect that such legend is not required for purposes of the Act or (ii) reasonably satisfactory evidence or representations that the shares represented by such certificates are being or have been transferred in a transaction made in conformity with the provisions of Rule 145. It is understood and agreed that the legend referred to above will be removed if (i) one year shall have elapsed from the date the undersigned acquired the Parent Common Stock received in the Merger and the provisions of Rule 145(d)(2) are then available to the undersigned, or (ii) two years shall have elapsed from the date the undersigned acquired the Parent Company Stock received in the Merger and the provisions of Rule 145(d)(3) are then applicable to the undersigned. -3- Execution of this letter should not be considered an admission by the undersigned that the undersigned is an "affiliate" of the Company as described in the first paragraph of this letter or as a waiver of any rights the undersigned may have to object to any claim that the undersigned is an affiliate on or after the date of this letter. Very truly yours, ---------------------------------------- [Print Name] Acknowledged this ___ day of _________, 2005. CORGENTECH, INC. By: --------------------------------- Name: ------------------------------- Title: ------------------------------ SIGNATURE PAGE TO ALGORX MARKET STAND-OFF AGREEMENT -4- EX-2.3 3 b58294ciexv2w3.txt ESCROW AGREEMENT, DATED DECEMBER 15, 2005 EXHIBIT 2.3 ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "AGREEMENT") is entered into as of December 15, 2005, by and among Corgentech, Inc., a Delaware corporation ("CORGENTECH"), Mellon Investor Services, as Escrow Agent ("ESCROW AGENT") and Joseph Marr, as Stockholder Representative ("REPRESENTATIVE") of the Participating Stockholders. RECITALS A. Corgentech, AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("ALGORX") and Element Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Corgentech ("MERGER SUB"), have entered into an Agreement and Plan of Merger dated as of September 23, 2005 (the "MERGER AGREEMENT") pursuant to which Merger Sub will merge (the "MERGER") with and into AlgoRx, with AlgoRx to be the surviving corporation of the Merger. Capitalized terms used in this Agreement and not otherwise defined shall have the meanings given them in the Merger Agreement. B. Section 1.7 of the Merger Agreement provides that at the Closing Date, Corgentech will deposit in escrow (such deposit constituting the "ESCROW FUND") that certain number of shares of Corgentech Common Stock equal to five percent (5%) of the Total Merger Consideration (the "ESCROW SHARES"). Each Participating Stockholder's Pro Rata Share of the Escrow Fund shall be withheld from the Participating Stockholder. C. The parties to this Agreement desire to establish the terms and conditions pursuant to which the Escrow Shares will be deposited, held in, and disbursed from the Escrow Fund. NOW, THEREFORE, the parties, intending to be legally bound, agree as follows: 1. Escrow Fund. The Escrow Agent agrees to: (a) accept delivery of the Escrow Shares; and (b) hold such Escrow Shares in escrow as part of the Escrow Fund, all subject to the terms and conditions of this Agreement and Article VIII of the Merger Agreement (which Article VIII is attached to this Agreement as Appendix I and incorporated by reference into this Agreement) (collectively, the "ESCROW PROVISIONS"). 2. Deposit of Escrow Shares: Release from Escrow. (a) Delivery of Escrow Shares. On the Closing Date, the Escrow Shares will be deposited by Corgentech on behalf of the Participating Stockholders with the Escrow Agent. (b) Participating Stockholders' Accounts. The Escrow Agent will maintain for each Participating Stockholder an accounting record (each Participating Stockholder's "ACCOUNT") specifying the portion of the Escrow Shares held for the record of each Participating Stockholder pursuant to Section 1.7 of the Merger Agreement. All Escrow Shares received under Section 2(a) of this Agreement will be allocated to each Participating Stockholder's Account in accordance with such Participating Stockholder's Pro Rata Share of the Escrow Fund as set forth on Appendix II. (c) Dividends; Voting; Rights of Ownership. The Escrow Agent will promptly distribute to the Participating Stockholders any cash dividends or other distributions of any kind made in respect of the Escrow Shares. Each Participating Stockholder will have voting rights with respect to his, her or its Pro Rata Share of the Escrow Shares so long as such Escrow Shares are held in escrow, and Corgentech will take all reasonable steps necessary to allow the exercise of such rights. While the Escrow Shares remain in the Escrow Agent's possession pursuant to this Agreement and the Merger Agreement, the Participating Stockholders will retain and will be able to exercise all other incidents of ownership of said Escrow Shares which are not inconsistent with the terms and conditions of this Agreement and the Merger Agreement. The beneficial owners of the Escrow Shares shall be wholly responsible for any and all taxes incurred and payable on the Escrow Shares. (d) Release. The Escrow Shares will be held by the Escrow Agent until required to be released to the Participating Stockholders pursuant to Section 8.1 of the Merger Agreement, unless previously released to Corgentech pursuant to Sections 8.2 and 8.3 of the Merger Agreement. Within ten (10) business days after the applicable release condition is met, Corgentech and the Representative will deliver to the Escrow Agent a written notice identifying the portion of the Escrow Shares to be released and cash to be paid in lieu of fractional shares with respect to each Participating Stockholder. As soon as practicable after receipt of this written notice, the Escrow Agent will deliver to each Participating Stockholder the Escrow Shares to be released. Escrow Shares will be in the form of stock certificate(s) issued in the name of such Participating Stockholder. Escrow Shares will be released and cash in lieu of fraction shares will be paid to the respective Participating Stockholders in accordance with their respective Accounts. Corgentech will take such action as may be necessary to cause such certificates to be issued in the names of the appropriate Participating Stockholders. Cash will be paid in lieu of fractions of Escrow Shares. Within ten (10) business days after the written notice described above, Corgentech will deposit with the Escrow Agent sufficient funds to pay such cash amounts for fractional shares. (e) No Encumbrance. No Escrow Shares or any beneficial interest in the Escrow Shares may be pledged, sold, assigned or transferred, including by operation of law, by a Participating Stockholder or be taken or reached by any legal or equitable process in satisfaction of any debt or other liability of a Participating Stockholder, prior to the delivery to such Participating Stockholder of such Participating Stockholder's portion of the Escrow Shares by the Escrow Agent. (f) Tax Reporting. The parties hereto agree that the Participating Stockholders shall be treated for all tax purposes as the owners of their Pro Rata Share of the Escrow Fund as indicated on Appendix II hereto. Within thirty (30) days of the date hereof, the Representative shall furnish to the Escrow Agent Internal Revenue Service Forms W-9 or Forms W-8BEN for the Participating Stockholders. The parties agree that the interest and other earnings attributable to the Escrow Shares shall be treated for U.S. tax purposes as income of the Participating Stockholders in the respective proportions indicated on Appendix II hereto. -2- 3. Limitation of the Escrow Agent's Liability. (a) The Escrow Agent will incur no liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and duly authorized, nor for any other action or inaction, except its own willful misconduct, bad faith or gross negligence. The Escrow Agent will not be responsible for the validity or sufficiency of the Escrow Provisions. In all questions arising under the Escrow Provisions, the Escrow Agent may rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Escrow Agent based on such advice, the Escrow Agent will not be liable to anyone. The Escrow Agent will not be required to take any action under the Escrow Provisions involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to it. (b) In the event conflicting demands are made or notices are served upon the Escrow Agent with respect to the Escrow Fund, the Escrow Agent will have the absolute right, at the Escrow Agent's election, to do either or both of the following: resign so a successor can be appointed pursuant to Section 5 of this Agreement or file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring the parties to interplead and litigate in such court their several claims and rights among themselves. In the event such interpleader suit is brought, the Escrow Agent will thereby be fully released and discharged from all further obligations imposed upon it under the Escrow Provisions, and Corgentech will pay the Escrow Agent (subject to reimbursement from the Participating Stockholders pursuant to Section 4) all costs, expenses and reasonable attorney's fees expended or incurred by the Escrow Agent pursuant to the exercise of the Escrow Agent's rights under this Section 3 (such costs, fees and expenses will be treated as extraordinary fees and expenses for the purposes of Section 4 of this Agreement). (c) Corgentech and the Participating Stockholders and their successors and assigns agree jointly and severally to indemnify and hold Escrow Agent harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs of investigation, counsel fees, including allocated costs of in-house counsel and disbursements that may be imposed on Escrow Agent or incurred by Escrow Agent in connection with the performance of its duties under this Agreement, including but not limited to any litigation arising from this Agreement or involving its subject matter. Notwithstanding the foregoing, no indemnity need be paid in the event of the Escrow Agent's gross negligence, bad faith or willful misconduct. 4. Expenses. (a) Escrow Agent. All fees and expenses of the Escrow Agent incurred in performing its responsibilities hereunder will be paid by Corgentech upon receipt of a written invoice by the Escrow Agent. (b) Representative. The Representative will not be entitled to receive any compensation from Corgentech or the Participating Stockholders in connection with this Agreement. Any expenses incurred by the Representative will be paid by Corgentech. -3- 5. Successor Escrow Agent. In the event the Escrow Agent becomes unavailable or unwilling to continue in its capacity as such, the Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving written notice to the parties to this Agreement, specifying not less than thirty (30) days' prior notice of the date when such resignation will take effect. Corgentech will designate a successor Escrow Agent (with the consent of the Representative, which will not be unreasonably withheld) prior to the expiration of such 30-day period by giving written notice to the Escrow Agent and the Representative. Corgentech may appoint a successor Escrow Agent with the consent of the Representative, which will not be unreasonably withheld, provided such proposed Escrow Agent is an independent third party that as part of its ordinary course of business provides similar escrow services to other parties. The Escrow Agent will promptly transfer the Escrow Shares to such designated successor. In the event no successor Escrow Agent is appointed as described in this Section 5, the Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor Escrow Agent. 6. Limitation of Responsibility. The Escrow Agent's duties are limited to those set forth in the Escrow Provisions and the Escrow Agent may rely upon the written notices delivered to the Escrow Agent under the Escrow Provisions. 7. Incorporation by Reference of Article VIII. The parties agree that the terms of Article VIII of the Merger Agreement shall be deemed to be incorporated by reference in this Agreement as if such Article had been set forth in its entirety herein. The parties acknowledge that the administration of the Escrow Fund by the Escrow Agent will require reference to both the terms of this Agreement as well as the terms of such Article VIII. 8. Notices. Any notices or other communications required or permitted under, or otherwise in connection with this Agreement, shall be in writing and shall be deemed to have been duly given when delivered in person or upon confirmation of receipt when transmitted by facsimile transmission (but only if followed by transmittal by national overnight courier or hand for delivery on the next business day) or on receipt after dispatch by registered or certified mail, postage prepaid, addressed, or on the next business day if transmitted by national overnight courier, in each case as follows: Corgentech: Corgentech, Inc. 650 Gateway Boulevard South San Francisco, CA 94080 Attention: Patrick Broderick Fax: 650-624-9600 With copy to: Cooley Godward LLP 3175 Hanover Street Palo Alto, CA 94304-1130 Attention: Matthew Hemington Fax: 650-849-7400 -4- Escrow Agent: Mellon Investor Services Attention: Fax: Representative: Joseph Marr c/o Pacific Rim Ventures Co, Ltd. Green Plaza 2F 3-7-20 Komazawa, Setagaya-ku Tokyo JAPAN phone: 81-3-5779-6752 Fax: 81-3-5779-6753 9. Dispute Resolution. (a) Escalation. In the event a dispute arises under this Agreement or the escrow provisions, and prior to taking action as provided in Section 9(b) of this Agreement, Corgentech's General Counsel and the Representative (the "Heads") shall attempt to resolve the dispute through good faith negotiations over a reasonable period, not to exceed thirty (30) days following one party's receipt of a notice of dispute from the other party, unless otherwise agreed by the Heads. Such thirty (30) day period shall be deemed to commence on the date the dispute was submitted to the "HEADS". All negotiations pursuant to this Section 9(a) shall be confidential, and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. (b) Arbitration. Any dispute that is not resolved by negotiation and/or escalation pursuant to Section 9(a) shall, upon the submission of a written request by Corgentech or the Representative to the other, be resolved exclusively by binding arbitration in San Francisco, California, before one (1) neutral arbitrator, free of any subject matter conflict and conflict with a party. Any arbitration proceedings shall be conducted in accordance with the Rules of the American Arbitration Association, except to the extent that such rules are inconsistent with this Agreement. The arbitrator shall resolve the dispute in accordance with this Agreement and the substantive laws (without regard to conflict-of-law and choice-of-law principles thereof, and excluding the rules of procedure) of the State of Delaware. The decision of the arbitrator shall be final and shall be fully and irrevocably accepted by the parties. The arbitrator is empowered to award interim and final injunction and equitable relief but, except as -5- expressly set forth in this Agreement, the arbitrator is not empowered to award treble, punitive, exemplary or any other damages in excess of compensatory damages, and each party irrevocably waives any claim to recover such damages. The final award of the arbitrator shall be the sole and exclusive remedy of the parties, and shall be enforceable in any court of competent jurisdiction. The parties agree that they shall share equally the cost of the arbitration filing and hearing fees, and the cost of the arbitrator. Each party shall bear its own attorneys' fees and expert fees and all associated costs and expenses, provided that the arbitrator may award attorneys' fees to the party deemed by the arbitrator to be the party substantially prevailing in the proceeding. 10. General. (a) Governing Laws. It is the intention of the parties hereto that the Laws of the State of Delaware (irrespective of its choice of law principles) shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties to this Agreement. (b) Binding upon Successors and Assigns. Subject to, and unless otherwise provided in, this Agreement, each and all of the covenants, terms, provisions, and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the permitted successors, executors, heirs, representatives, administrators and assigns of the parties to this Agreement. (c) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument. This Agreement shall become binding when one or more counterparts of this Agreement, individually or taken together, shall bear the signatures of all of the parties reflected in this Agreement as signatories. (d) Entire Agreement. Except as set forth in the Merger Agreement, this Agreement, the documents referenced in this Agreement and the exhibits to such documents, constitute the entire understanding and agreement of the parties to this Agreement with respect to the subject matter of this Agreement and of such documents and exhibits and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect to such subject matter. The express terms of this Agreement control and supersede any course of performance or usage of the trade inconsistent with any of the terms of this Agreement. (e) Waivers. No waiver by any party to this Agreement of any condition or of any breach of any provision of this Agreement will be effective unless in writing. No waiver by any party of any such condition or breach, in any one instance, will be deemed to be a further or continuing waiver of any such condition or breach or a waiver of any other condition or breach of any other provision contained in this Agreement. (f) Amendment. This Agreement may be amended with the written consent of Corgentech, the Escrow Agent and the Representative, provided, however, that if the Escrow Agent does not agree to an amendment agreed upon by Corgentech and the Representative, a successor Escrow Agent may be appointed in accordance with Section 5 of this Agreement. [Signature Page Follows] -6- IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written and this Agreement will be effective as to all of the Participating Stockholders when executed by Corgentech, the Escrow Agent and the Representative. CORGENTECH INC. By: /s/ John P. McLaughlin ------------------------------------ Name: John P. McLaughlin Title: Chief Executive Officer ESCROW AGENT: MELLON INVESTOR SERVICES By: /s/ Edward Eismont ------------------------------------ Name: Edward Eismont Title: Event Manager - Corporate Action REPRESENTATIVE: By: /s/ Joseph Marr ------------------------------------ Name: Joseph Marr -7- APPENDIX I ARTICLE VIII OF MERGER AGREEMENT -8- APPENDIX II PARTICIPATING STOCKHOLDERS' INTEREST IN THE ESCROW FUND
ESCROW PERCENTAGE STOCKHOLDER NAME SHARES INTEREST - ---------------- ------- ---------- InterWest Partners VIII, LP 116,150 17.80% InterWest Investors VIII, LP 309 0.05% InterWest Investors Q VIII, LP 1,107 0.17% JP Morgan Partners (SBIC), LLC 104,517 16.02% JP Morgan Partners Global Investors, LLC 6,364 0.98% JP Morgan Partners Global Investors A, LP 977 0.15% JP Morgan Partners Global Investors (Selldown), L.P. 2,154 0.33% JP Morgan Partners Global Investors (Cayman), LP 3,195 0.49% JP Morgan Partners Global Investors (Cayman) II, LP 357 0.05% Sofinnova Venture Partners V, LP 54,720 8.39% Sofinnova Venture Affiliates V, LP 1,800 0.28% Sofinnova Venture Principals V, LP 839 0.13% Cooley Godward (CG&H Investments) 220 0.03% Advent Healthcare and Life Sciences III Limited Partnership 18,569 2.85% Advent Healthcare and Life Sciences III-A Limited Partnership 34,822 5.34% Advent Partners HLS III Limited Partnership 658 0.10% Advent Partners II Limited Partnership 154 0.02% S.R. One, Limited 42,589 6.53% Pacific Rim Aqua Life Science No. 1 Investment Partnership 7,408 1.14% Pacific Rim Aqua Life Science No. 2 Investment Partnership 8,747 1.34% Pacific Rim Aqua Life Science No. 3 Investment Partnership 5,013 0.77% Pacific Rim Aqua Life Science No. 4 Investment Partnership 9,804 1.50% Pacific Rim Aqua Life Science No. 5 Investment Partnership 11,615 1.78%
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ESCROW PERCENTAGE STOCKHOLDER NAME SHARES INTEREST - ---------------- ------- ---------- Lehman Brothers HealthCare Venture Capital, LP 7,743 1.19% Lehman Brothers PA, LLC 14,821 2.27% Lehman Brothers Partnership Account 2002/2001, LP 6,677 1.02% Lehman Brothers Offshore Partnership Account 2000/2001, LP 1,731 0.27% Cogene Biotech Ventures, LP 11,615 1.78% EGS Private Healthcare Partnership II, LP 14,668 2.25% EGS Private Healthcare Investors II, LP 2,313 0.35% EGS Private Healthcare Canadian Partners, LP 2,207 0.34% EGS Private Healthcare Presidents Fund, LP 169 0.03% Hunt Ventures, LP 23,230 3.56% Piper Jaffray Healthcare Fund IV, LP 18,584 2.85% NIF Ventures Co. Ltd 3,097 0.47% Investment Enterprise Partnership "NIF 21-One(1)" 12,389 1.90% Axiom Venture Partners III, LP 13,164 2.02% Index Ventures II (Jersey) LP 13,033 2.00% Index Ventures II (Delaware) LP 23,963 3.67% Index Ventures II GmbH & Co. KG 3,831 0.59% Index Ventures II Parallel Entrepreneur Fund (Jersey - A) LP 437 0.07% Index Ventures II Parallel Entrepreneur Fund (Jersey - B) LP 685 0.10% Index Venture Management SA on behalf of Index Employee Invst. Plan 638 0.10% WHI Morula Fund, LLC (William Harris Investors) 2,052 0.31% HEWM / VLG Investments, LLC (Heller Ehrman) 387 0.06% Dr. Michael G. Ehrlich 193 0.03% Eliot M. Fried 774 0.12% Burch, Ronald M., M.D., Ph..D 441 0.07% Ronald Burch 15076 2.31% Jeffrey Rona 11845 1.82%
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ESCROW PERCENTAGE STOCKHOLDER NAME SHARES INTEREST - ---------------- ------- ---------- Anil Dasu 1507 0.23% Davidson & Koppel Davidson 646 0.10% Steve Engel 2153 0.33% Patricia Richards 2153 0.33% Paula Buckley 861 0.13% Deborah Hopper 646 0.10% John Minogue 861 0.13% G. Hewson 574 0.09% Dolores Lewis-Wellman 258 0.04% Nicholas Stones 430 0.07% John Cavan 861 0.13% Rita Shah 287 0.04% Tammy Miller 430 0.07% Scott Wollaston 430 0.07% Pamela Yurasek 287 0.04% Patrick O'Meara 287 0.04% Laurie Randazzo 287 0.04% Crystal Smith 143 0.02% Melissa Vicente 143 0.02% Carter Eckert 1076 0.16% Rosemary Fry 287 0.04% ------- ------ 652,458 100.00%
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