EXHIBIT 4.7
STRUCTURAL GENOMIX, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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.
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TABLE OF CONTENTS
PAGE
SECTION 1. GENERAL.............................................................. [ 2]
1.1 Definitions.......................................................... [ 2]
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER............................... [ 3]
2.1 Restrictions on Transfer............................................. [ 3]
2.2 Demand Registration.................................................. [ 5]
2.3 Piggyback Registrations.............................................. [ 6]
2.4 Form S-3 Registration................................................ [ 7]
2.5 Expenses of Registration............................................. [ 8]
2.6 Obligations of the Company........................................... [ 9]
2.7 Termination of Registration Rights................................... [10]
2.8 Delay of Registration; Furnishing Information........................ [10]
2.9 Indemnification...................................................... [10]
2.10 Assignment of Registration Rights.................................... [13]
2.11 Amendment of Registration Rights..................................... [13]
2.12 Limitation on Subsequent Registration Rights......................... [13]
2.13 "Market Stand-Off" Agreement; Agreement to Furnish Information....... [13]
2.14 Rule 144 Reporting................................................... [14]
SECTION 3. COVENANTS OF THE COMPANY............................................. [14]
3.1 Basic Financial Information and Reporting............................ [14]
3.2 Inspection Rights.................................................... [15]
3.3 Confidentiality of Records........................................... [15]
3.4 Reservation of Common Stock.......................................... [16]
3.5 Proprietary Information and Inventions Agreement..................... [16]
3.6 Assignment of Right of First Refusal................................. [16]
3.7 Directors' Liability and Indemnification............................. [16]
3.8 Termination of Covenants............................................. [16]
3.9 Use of Proceeds...................................................... [16]
3.10 Business Activity.................................................... [16]
3.11 Compliance........................................................... [16]
3.12 Information for SBIC Investor........................................ [17]
i.
TABLE OF CONTENTS
(CONTINUED)
PAGE
3.13 Number of Holders of Voting Securities............................... [17]
3.14 Regulatory Problem................................................... [17]
3.15 Board Committees..................................................... [17]
3.16 Observer Rights...................................................... [18]
SECTION 4. RIGHTS OF FIRST REFUSAL.............................................. [18]
4.1 Subsequent Offerings................................................. [18]
4.2 Exercise of Rights................................................... [18]
4.3 Issuance of Equity Securities to Other Persons....................... [18]
4.4 Termination and Waiver of Rights of First Refusal.................... [19]
4.5 Transfer of Rights of First Refusal.................................. [19]
4.6 Excluded Securities.................................................. [19]
SECTION 5. MISCELLANEOUS........................................................ [20]
5.1 Governing Law........................................................ [20]
5.2 Survival............................................................. [20]
5.3 Successors and Assigns............................................... [20]
5.4 Entire Agreement..................................................... [20]
5.5 Severability......................................................... [20]
5.6 Amendment and Waiver................................................. [21]
5.7 Delays or Omissions.................................................. [21]
5.8 Notices.............................................................. [21]
5.9 Attorneys' Fees...................................................... [21]
5.10 Titles and Subtitles................................................. [21]
5.11 Additional Investors................................................. [22]
5.12 Counterparts......................................................... [22]
5.13 Termination of Prior Agreement....................................... [22]
ii.
STRUCTURAL GENOMIX, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "AGREEMENT")
is entered into as of April 21, 2005, by and among STRUCTURAL GENOMIX, INC., a
Delaware corporation (the "COMPANY"), and the investors listed on EXHIBIT A
hereto (the "INVESTORS" and each individually, an "INVESTOR").
RECITALS
WHEREAS, certain of the Investors are purchasing shares of the
Company's new Series B Preferred Stock (the "SERIES B STOCK"), pursuant to that
certain Series B Preferred Stock Purchase and Recapitalization Agreement (the
"PURCHASE AGREEMENT") of even date herewith (the "SERIES B FINANCING");
WHEREAS, the obligations in the Purchase Agreement are conditioned upon
the execution and delivery of this Agreement;
WHEREAS, certain of the Investors currently hold shares of the
Company's Common Stock issued upon conversion of the Company's previously
outstanding Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (BRIDGE CONVERTED COMMON STOCK) in
connection with the Company's 2004 secured bridge note financing (the "2004
BRIDGE FINANCING");
WHEREAS, certain of the Investors who participated in the 2004 Bridge
Financing currently hold shares of the Company's Series A-1 Preferred Stock,
Series A-2 Preferred Stock, Series B-1 Preferred Stock, Series C-1 Preferred
Stock and Series D-1 Preferred Stock (collectively, the "PRE-SERIES B CONVERSION
PREFERRED STOCK");
WHEREAS, in connection with the Series B Financing, all shares of
Pre-Series B Conversion Preferred Stock will either be converted into shares of
the Company's Common Stock or exchanged for shares of the Company's new Series A
Common Stock (the "SERIES A STOCK");
WHEREAS, the Company and the Investors who are parties to that certain
Restated Investor Rights Agreement dated September 12, 2000, as amended by that
First Amendment to Restated Investor Rights Agreement dated May 4, 2001 and that
Second Amended to Restated Investor Rights Agreement dated July 27, 2004 (the
"PRIOR AGREEMENT") desire to amend and restate the Prior Agreement in its
entirety and accept the rights and covenants hereof in lieu of their rights and
covenants thereunder; and
WHEREAS, in connection with the consummation of the Series B Financing,
the Company and the Investors have agreed to the registration rights,
information rights, and other rights as set forth below.
1.
NOW, THEREFORE, in consideration of these premises and for other good
and valid consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. GENERAL.
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any successor or similar registration form under
the Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
"HOLDER" means any person owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 2.10 hereof.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
"QUALIFIED OFFERING" means the closing of a firmly
underwritten public offering of shares of the Common Stock of the Company at a
per share purchase price of $5.00 (as adjusted for stock splits, dividends,
combinations and the like) with net proceeds to the Company (after deduction of
underwriters commission and expenses) of not less than $25 million.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means the (a) Common Stock of the
Company issued or issuable upon conversion of the Shares; (b) Bridge Converted
Common Stock; (c) Common Stock of the Company issued or issuable upon conversion
of the Conversion Securities (as those securities are defined in the Convertible
Promissory Note issued by the Company to mHoldings Trust ("MHOLDINGS") dated
December 21, 2001 (the "MILLENNIUM NOTE") (or in the event the Conversion
Securities (as those securities are defined in the Millennium Note) consist of
the Company's Common Stock, the Conversion Securities (as those securities are
defined in the Millennium Note)); (d) Common Stock of the Company issued or
issuable conversion of the Warrant Securities (or in the event the Warrant
Securities consist of the Company's Common Stock, the Warrant Securities); and
(e) Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such above-described securities. Notwithstanding the foregoing, Registrable
Securities shall not include any securities sold by a person to the public
either pursuant to a registration statement or
2.
Rule 144 or sold in a private transaction in which the transferor's rights under
Section 2 of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number
of shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (a) are then issued and
outstanding or (b) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by
the Company in complying with Sections 2.2, 2.3 and 2.4 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, reasonable fees and disbursements
of a single special counsel for the Holders, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale.
"SHARES" shall mean (a) the Series A Stock and Series B Stock
now held or hereafter acquired by the Investors listed on EXHIBIT A hereto and
their permitted assigns; (b) the Pre-Series B Conversion Preferred Stock held by
the Investors listed on EXHIBIT A hereto and their permitted assigns; (c) the
Company securities issuable upon exercise of the Warrant (the "Warrant
Securities"); and (d) the Conversion Securities (as those securities are defined
in the Millennium Note) issued pursuant to the Millennium Note to mHoldings (or
its permitted assigns).
"SPECIAL REGISTRATION STATEMENT" shall mean a registration
statement relating to any employee benefit plan or with respect to any corporate
reorganization or other transaction under Rule 145 of the Securities Act.
"WARRANT" shall mean that certain warrant held by General
Electric Capital Corporation dated March 9, 2000, as such may be amended from
time to time.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1 RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or
any portion of the Shares or Registrable Securities unless and until:
(i) there is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
3.
(ii) (A) the transferee has agreed in writing to be
bound by the terms of this Agreement, (B) such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and (C) if reasonably requested by the Company, such Holder shall have furnished
the Company with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of paragraphs
(i) and (ii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by a Holder which is (A) a partnership to its
partners or former partners in accordance with partnership interests, (B) a
corporation to its shareholders in accordance with their interest in the
corporation, (C) a limited liability company to its members or former members in
accordance with their interest in the limited liability company, (D) an
affiliate that is actually controlled by or under common control with the
Holder, or (E) to the Holder's family member or trust for the benefit of an
individual Holder; provided that in each case the transferee will be subject to
the terms of this Agreement to the same extent as if he were an original Holder
hereunder.
(b) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws):
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, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
(c) The Company shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the holder shall
have obtained an opinion of counsel (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
4.
2.2 DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 2.2, if the
Company shall receive a written request from the Holders of at least sixty-six
and two-thirds percent (66-2/3%) of the Registrable Securities (the "INITIATING
HOLDERS") voting together as a single class that the Company file a registration
statement under the Securities Act covering the registration of certain of such
Registrable Securities, then the Company shall, within thirty (30) days of the
receipt thereof, give written notice of such request to all Holders, and subject
to the limitations of this Section 2.2, use its best efforts to effect, as
expeditiously as reasonably possible, the registration under the Securities Act
of all Registrable Securities that the Holders request to be registered.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.2 or any request pursuant to Section 2.4 and the Company shall
include such information in the written notice referred to in Section 2.2(a) or
Section 2.4(a), as applicable. In such event, the right of any Holder to include
its Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by a majority in interest of the
Initiating Holders (which underwriter or underwriters shall be reasonably
acceptable to the Company). Notwithstanding any other provision of this Section
2.2 or Section 2.4, if the underwriter advises the Company that marketing
factors require a limitation of the number of securities to be underwritten
(including Registrable Securities) then the Company shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders). Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(i) prior to the earlier of (A) December 31, 2006 or
(B) one hundred eighty (180) days following the effective date of the
registration statement pertaining to the Initial Offering;
(ii) after the Company has effected two (2)
registrations pursuant to this Section 2.2, and such registrations have been
declared or ordered effective;
(iii) during the period starting with the date of
filing of, and ending on the date one hundred eighty (180) days following the
effective date of the registration statement pertaining to the Initial Offering;
provided that the Company makes reasonable good faith efforts to cause such
registration statement to become effective;
5.
(iv) if within thirty (30) days of receipt of a
written request from Initiating Holders pursuant to Section 2.2(a), the Company
gives notice to the Holders of the Company's good faith intention to make a
public offering, other than pursuant to a Special Registration Statement, within
ninety (90) days;
(v) if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 2.2, a certificate
signed by the Chairman of the Board stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such registration statement to be effected at
such time, in which event the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after receipt of the request of
the Initiating Holders; provided that such right to delay a request shall be
exercised by the Company not more than once in any twelve (12) month period; or
(vi) if the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 2.4 below.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders in
writing at least twenty (20) days prior to the filing of any registration
statement under the Securities Act for purposes of a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding Special Registration Statements) and will afford each such Holder an
opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder. Each Holder desiring to include in
any such registration statement all or any part of the Registrable Securities
held by it shall, within fifteen (15) days after the above-described notice from
the Company, so notify the Company in writing. Such notice shall state the
intended method of disposition of the Registrable Securities by such Holder. If
a Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(a) UNDERWRITING. If the registration statement under which
the Company gives notice under this Section 2.3 is for an underwritten offering,
the Company shall so advise the Holders of Registrable Securities in the
above-described notice. In such event, the right of any such Holder to be
included in a registration pursuant to this Section 2.3 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of the Agreement, if the
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, the number of shares that may be
included in the underwriting shall be allocated, first, to the Company; second,
to the Holders on a pro rata basis based on the total number of Registrable
Securities held by the Holders; and third, to any stockholder of the
6.
Company (other than a Holder) on a pro rata basis. No such reduction shall (i)
reduce the securities being offered by the Company for its own account to be
included in the registration and underwriting; or (ii) reduce the amount of
securities of the selling Holders included in the registration below thirty-five
percent (35%) of the total amount of securities included in such registration,
unless such offering is the Initial Offering and such registration does not
include shares of any other selling stockholders, in which event any or all of
the Registrable Securities of the Holders may be excluded in accordance with the
immediately preceding sentence. If any Holder disapproves of the terms of any
such underwriting, such Holder may elect to withdraw therefrom by written notice
to the Company and the underwriter, delivered at least ten (10) business days
prior to the effective date of the registration statement. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration. For any Holder which is a partnership or
corporation, the partners, retired partners and shareholders of such Holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing person shall be deemed to be a
single "Holder," and any pro rata reduction with respect to such "Holder" shall
be based upon the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "Holder," as defined in this
sentence.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.5 hereof.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 (or any successor to Form S-3) or any similar
short-form registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) use best efforts to effect, as soon as practicable, such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 2.4:
(i) if Form S-3 is not available for such offering by
the Holders, or
(ii) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than one million dollars ($1,000,000), or
7.
(iii) if within thirty (30) days of receipt of a
written request from any Holder or Holders pursuant to this Section 2.4, the
Company gives notice to such Holder or Holders of the Company's good faith
intention to make a public offering within sixty (60) days, other than pursuant
to a Special Registration Statement, or
(iv) if the Company shall furnish to the Holders a
certificate signed by the Chairman of the Board of Directors of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such Form S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt of the
request of the Holder or Holders under this Section 2.4; provided, that such
right to delay a request shall be exercised by the Company not more than once in
any twelve (12) month period, or
(v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a Form
S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered within ninety (90) days after receipt
of the request of the Holder or Holders. Registrations effected pursuant to this
Section 2.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 2.2 or 2.3, respectively.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.2 or any registration under
Section 2.3 or Section 2.4 herein shall be borne by the Company. All Selling
Expenses incurred in connection with any registrations hereunder, shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of shares so registered. The Company shall not, however, be required to
pay for expenses of any registration proceeding begun pursuant to Section 2.2 or
2.4, the request of which has been subsequently withdrawn by the Initiating
Holders unless (a) the withdrawal is based upon material adverse information
concerning the Company of which the Initiating Holders were not aware at the
time of such request or (b) the Holders of a majority of Registrable Securities
agree to forfeit their right to one requested registration pursuant to Section
2.2 or Section 2.4, as applicable, in which event such right shall be forfeited
by all Holders. If the Holders are required to pay the Registration Expenses,
such expenses shall be borne by the holders of securities (including Registrable
Securities) requesting such registration in proportion to the number of shares
for which were ultimately included in such registration. If the Company is
required to pay the Registration Expenses of a withdrawn offering pursuant to
clause (a) above, then the Holders shall not forfeit their rights pursuant to
Section 2.2 or Section 2.4 to a demand registration.
8.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days
or, if earlier, until the Holder or Holders have completed the distribution
related thereto.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement for the period set forth in
paragraph (a) above.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing. The Company will use reasonable efforts to amend or supplement such
prospectus in order to cause such prospectus not to include any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.
(g) Use its reasonable efforts to furnish, on the date that
such Registrable Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (i) an opinion, dated as of such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters
9.
in an underwritten public offering, addressed to the underwriters, if any, (and
with copies thereof provided to the Holders requesting registration of
Registrable Securities), and (ii) a letter dated as of such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters.
2.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect at
the earlier of (a) five (5) years after the date of the Company's Initial
Offering or (b) after the Company's Initial Offering, with respect to a
particular Holder, at such time as (i) the Holder is entitled to sell all of its
shares in any ninety (90) day period pursuant to SEC Rule 144 and (ii) the
Holder owns less than one percent (1%) of the Registrable Securities.
2.8 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of
the Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.2 or Section 2.4 if, due to the
operation of subsection 2.2(b), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in Section 2.2 or Section 2.4,
whichever is applicable. Where a registration requested pursuant to Section 2.2
or Section 2.4 is not completed because the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration, the request to initiate such registration shall
not count against the number of requests permitted to be made pursuant to
Section 2.2 or 2.4. Where a registration requested pursuant to Section 2.2 or
Section 2.4 is completed even though the number of shares of the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration is less than the number of shares or the anticipated aggregate
offering price required to originally trigger the Company's obligation to
initiate such registration, the request to initiate such registration shall
count against the number of requests permitted to be made pursuant to Section
2.2 or Section 2.4.
2.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
10.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, officers, directors and
shareholders of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "VIOLATION") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will pay as incurred to
each such Holder, partner, officer, director, legal counsel, underwriter or
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided however, that the indemnity agreement contained in
this Section 2.9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, partner, officer, director, legal counsel, underwriter or
controlling person of such Holder.
(b) To the extent permitted by law, each Holder, severally and
not jointly, will, if Registrable Securities held by such Holder are included in
the securities as to which such registration qualifications or compliance is
being effected, indemnify and hold harmless the Company, each of its directors,
its officers and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or other
such Holder, or partner, director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will pay as incurred any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter or other
Holder, or partner, officer, director or controlling person of such other Holder
in connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the
11.
indemnity agreement contained in this Section 2.9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided further, that in no event shall any
indemnity under this Section 2.9 exceed the net proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.9 to the extent of such prejudice,
but the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the net proceeds from the offering received by such
Holder.
(e) The obligations of the Company and Holders under this
Section 2.9 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation, unless
such settlement (i) includes an unconditional release of
12.
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
2.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, affiliate that is actually controlled by or under common
control with the Holder, general partner, limited partner, retired partner,
member, shareholder or retired member of a Holder, (b) is a Holder's family
member or trust for the benefit of an individual Holder, or (c) acquires at
least twelve thousand six hundred forty-five (12,645) shares of Registrable
Securities (as adjusted for stock splits and combinations); provided, however,
(i) the transferor shall, within ten (10) days after such transfer, furnish to
the Company written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned and (ii) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 2
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of at least sixty-six and
two-thirds percent (66-2/3%) of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 2.11 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Section 2, the Holders hereby agree to be bound by the provisions
hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. Other than as
provided in Section 5.11, after the date of this Agreement, the Company shall
not, without the prior written consent of the Holders of at least a majority of
the Registrable Securities then outstanding, enter into any agreement with any
holder or prospective holder of any securities of the Company that would grant
such holder registration rights pari passu or senior to those granted to the
Holders hereunder.
2.13 "MARKET STAND-OFF" AGREEMENT; AGREEMENT TO FURNISH INFORMATION.
Each Holder hereby agrees that such Holder shall not, without the prior consent
of the managing underwriter, sell, transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale, any Common Stock (or other securities)
of the Company held by such Holder (other than those included in the
registration) for a period specified by the representative of the underwriters
of Common Stock (or other securities) of the Company not to exceed one hundred
eighty (180) days following the effective date of a registration statement of
the Company filed under the Securities Act; provided that:
(a) such agreement shall apply only to the Company's Initial
Offering; and
(b) all officers, directors, and founders of the Company and
holders of at least one percent (1%) of the Company's voting securities enter
into similar agreements.
13.
Each Holder 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, each Holder shall provide,
within fifteen (15) days of such request, such information as may be required by
the Company or such representative in connection with the completion of any
public offering of the Company's securities pursuant to a registration statement
filed under the Securities Act. The obligations described in this Section 2.13
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. Each Holder agrees that any transferee of any
shares of Registrable Securities shall be bound by this Section 2.13.
2.14 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) file with the SEC, in a timely manner, all reports and
other documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon request: a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144 of
the Securities Act, and of the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of the most recent annual or
quarterly report of the Company; and such other reports and documents as a
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
SECTION 3. COVENANTS OF THE COMPANY.
3.1 BASIC FINANCIAL INFORMATION AND REPORTING.
(a) The Company will maintain true books and records of
account in which full and correct entries will be made of all its business
transactions pursuant to a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
and will set aside on its books all such proper accruals and reserves as shall
be required under generally accepted accounting principles consistently applied.
(b) So long as an Investor (with its affiliates) shall own not
less than fifty thousand five hundred eighty-one (50,581) shares of Registrable
Securities (as adjusted for stock
14.
splits and combinations and recapitalizations) (a "MAJOR INVESTOR"), the Company
will furnish each such Major Investor, as soon as practicable after the end of
each fiscal year of the Company, and in any event within one hundred twenty
(120) days thereafter, to the extent requested by such Major Investor, a balance
sheet of the Company and statement of shareholder's equity, as at the end of
such fiscal year, and a statement of income and a statement of cash flows of the
Company, for such year, all prepared in accordance with generally accepted
accounting principles consistently applied and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail. Such financial statements shall be accompanied by a report and opinion
thereon by independent public accountants of national standing selected by the
Company's Board of Directors.
(c) The Company will furnish each Major Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, and in any event within ninety (90)
days thereafter, to the extent requested by such Investor a balance sheet of the
Company as of the end of each such quarterly period, and a statement of income
and a statement of cash flows of the Company for such period and for the current
fiscal year to date, prepared in accordance with generally accepted accounting
principles, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
(d) The Company will furnish each Major Investor (i) at least
fifteen (15) days prior to the beginning of each fiscal year an annual budget
and operating plans for such fiscal year (and promptly after available, any
subsequent revisions thereto); and (ii) as soon as practicable after the end of
each month, and in any event within sixty (60) days thereafter, a balance sheet
of the Company as of the end of each such month, and a statement of income and a
statement of cash flows of the Company for such month and for the current fiscal
year to date, including a comparison to plan figures for such period, prepared
in accordance with generally accepted accounting principles consistently
applied, with the exception that no notes need be attached to such statements
and year-end audit adjustments may not have been made.
3.2 INSPECTION RIGHTS. Each Major Investor shall have the right to
visit and inspect any of the properties of the Company or any of its
subsidiaries, including its books of account and records, and to discuss the
affairs, finances and accounts of the Company or any of its subsidiaries with
its officers, and to review such information as is reasonably requested all at
such reasonable times and as often as may be reasonably requested; provided,
however, that the Company shall not be obligated under this Section 3.2 with
respect to a competitor of the Company or with respect to information which the
Board of Directors determines in good faith is confidential and should not,
therefore, be disclosed.
3.3 CONFIDENTIALITY OF RECORDS. Each Investor agrees to use, and to use
its best efforts to insure that its authorized representatives use, the same
degree of care as such Investor uses to protect its own confidential information
to keep confidential any information furnished to it which the Company
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that such Investor may disclose such
proprietary or confidential information to any partner, subsidiary or parent of
such Investor for the purpose of evaluating its investment in the Company as
long as such partner, subsidiary or parent is advised of and agrees to comply
with the confidentiality provisions of this Section 3.3.
15.
3.4 RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.
3.5 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Company shall
require all employees and consultants to execute and deliver a Proprietary
Information and Inventions Agreement in the form substantially as attached to
the Purchase Agreement.
3.6 ASSIGNMENT OF RIGHT OF FIRST REFUSAL. In the event the Company
elects not to exercise any right of first refusal or right of first offer the
Company may have on a proposed transfer of any of the Company's outstanding
capital stock pursuant to the Company's charter documents, by contract or
otherwise, the Company shall, to the extent it may do so, assign such right of
first refusal or right of first offer to each Investor. In the event of such
assignment, each Investor shall have a right to purchase its pro rata portion
(as defined in Section 4.1) of the capital stock proposed to be transferred.
3.7 DIRECTORS' LIABILITY AND INDEMNIFICATION. The Company's Certificate
of Incorporation and Bylaws shall provide for (a) elimination of the liability
of director to the maximum extent permitted by law and (b) indemnification of
directors for acts on behalf of the Company to the maximum extent permitted by
law.
3.8 TERMINATION OF COVENANTS. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Investor upon
the earlier of (i) the effective date of the registration statement pertaining
to the Initial Offering; or (ii) upon (a) the sale, lease or other disposition
of all or substantially all of the assets of the Company or (b) an acquisition
of the Company by another corporation or entity by consolidation, merger or
other reorganization in which the holders of the Company's outstanding voting
stock immediately prior to such transaction own, immediately after such
transaction, securities representing less than fifty percent (50%) of the voting
power of the corporation or other entity surviving such transaction, provided
that this Section 3.8(ii)(b) shall not apply to a merger effected exclusively
for the purpose of changing the domicile of the Company (a "CHANGE IN CONTROL").
3.9 USE OF PROCEEDS. The proceeds from the issuance and sale of the
Series B Stock pursuant to the Series B Purchase Agreement (the "PROCEEDS")
shall be used by the Company for its growth, modernization or expansion. The
Company shall provide each Investor which is a licensed Small Business
Investment Company (an "SBIC INVESTOR") and the Small Business Administration
(the "SBA") reasonable access to the Company's books and records for the purpose
of confirming the use of Proceeds.
3.10 BUSINESS ACTIVITY. For a period of one (1) year following the
initial Closing under the Series B Purchase Agreement the Company shall not
change the nature of its business activity if such change would render the
Company ineligible as provided in 13 C.F.R. Section 107.720.
3.11 COMPLIANCE. So long as any SBIC Investor holds any securities of
the Company, the Company will at all times comply with the non-discrimination
requirements of 13 C.F.R. Parts 112, 113 and 117.
16.
3.12 INFORMATION FOR SBIC INVESTOR. Within forty-five (45) days after
the end of each fiscal year and at such other times as an SBIC Investor may
reasonably request, the Company shall deliver to such SBIC Investor a written
assessment, in form and substance satisfactory to such SBIC Investor, of the
economic impact of such SBIC Investor's financing specifying the full-time
equivalent jobs created or retained in connection with such investment, and the
impact of the financing on the Company's business in terms of profits and on
taxes paid by the Company and its employees. Upon request, the Company agrees to
promptly provide each SBIC Investor with sufficient information to permit such
Investor to comply with their obligations under the Small Business Investment
Act of 1958, as amended, and the regulations promulgated thereunder and related
thereto; provided, however, each SBIC Investor agrees that it will protect any
information which the Company labels as confidential to the extent permitted by
law. Any submission of any financial information under this Section shall
include a certificate of the company's president, chief executive officer,
treasurer or chief financial officer.
3.13 NUMBER OF HOLDERS OF VOTING SECURITIES. So long as any SBIC
Investor holds any securities purchased pursuant to the Stock Purchase Agreement
or issued by the Company with respect thereto, the Company shall notify each
SBIC Investor (i) at least 15 days prior to taking any action after which the
number of record holders of the Company's voting securities would be increased
from fewer than 50 to 50 or more; and (ii) of any other action or occurrence
after which the number of record holders of the Company's voting securities was
increased (or would increase) from fewer than 50 to 50 or more, as soon as
practicable after the Company becomes aware that such other action or occurrence
has occurred or is proposed to occur.
3.14 REGULATORY PROBLEM. In the event that an SBIC Investor determines
that it has a Regulatory Problem (as defined below), it shall have the right to
transfer its shares of Series B Stock (or the Common Stock into which such
shares are convertible) without regard to any restrictions on transfer set forth
in this Agreement or the Series B Purchase Agreement (provided that the
transferee agrees to become a party to each such agreement), and the Company
shall take all such actions as are reasonably requested by such SBIC Investor in
order to (i) effectuate and facilitate any transfer by it of any securities of
the Company then held by it to any person designated by such SBIC Investor; (ii)
permit such SBIC Investor (or any of its affiliates) to exchange all or any
portion of any voting security then held by it on a share-for-share basis for
shares of a nonvoting security of the Company, which nonvoting security shall be
identical in all respects to the voting security exchanged for it, except that
it shall be nonvoting and shall be convertible into a voting security on such
terms as are requested by it in light of regulatory considerations then
prevailing; and (iii) amend this Agreement, the Company's Certificate of
Incorporation and Bylaws and to effectuate and reflect the foregoing. The
parties to this Agreement agree to vote all of the Company's securities held by
them in favor of such amendments and actions. For purposes of this Agreement, a
"REGULATORY PROBLEM" means any set of facts or circumstances wherein it has been
asserted by any governmental regulatory agency that such SBIC Investor is not
entitled to hold, or exercise any significant right with respect to, the
Registrable Securities.
3.15 BOARD COMMITTEES. Any committee of the Company's Board of
Directors shall consist of at least one director selected by BAVP, L.P.
17.
3.16 OBSERVER RIGHTS. The Company shall invite a representative of
BAVP, L.P., (whether or not BAVP, L.P. has a representative on the Board of
Directors) to attend all meetings of its Board of Directors (and all committees
thereof) in a nonvoting observer capacity and, in this respect, shall give such
representative copies of all notices, minutes, consents and other material that
it provides to its directors; provided, however, that the Company reserves the
right to exclude such representative from access to any material or meeting or
portion thereof if the Company believes upon advice of counsel that such
exclusion is reasonably necessary to preserve the attorney-client privilege, to
protect highly confidential proprietary information or for other similar
reasons. Such representative may participate in discussions of matters brought
to the Board.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 SUBSEQUENT OFFERINGS. Each Investor shall have a right of first
refusal to purchase its pro rata share of all Equity Securities, as defined
below, that the Company may, from time to time, propose to sell and issue after
the date of this Agreement, other than the Equity Securities excluded by Section
4.6 hereof. Each Investor's pro rata share is equal to the ratio of (a) the
number of shares of the Company's Common Stock (including all shares of Common
Stock issued or issuable upon conversion of the Shares) which such Investor is
deemed to be a holder immediately prior to the issuance of such Equity
Securities to (b) the total number of shares of the Company's outstanding Common
Stock (including all shares of Common Stock issued or issuable upon conversion
of the Shares or upon the exercise of any outstanding warrants or options)
immediately prior to the issuance of the Equity Securities. The term "EQUITY
SECURITIES" shall mean (i) any Common Stock, Preferred Stock or other security
of the Company; (ii) any security convertible, with or without consideration,
into any Common Stock, Preferred Stock or other security (including any option
to purchase such a convertible security); (iii) any security carrying any
warrant or right to subscribe to or purchase any Common Stock, Preferred Stock
or other security; or (iv) any such warrant or right.
4.2 EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Investor shall have twenty
(20) days from the giving of such notice to agree to purchase its pro rata share
of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Investor who would cause the Company to be in violation of
applicable federal securities laws by virtue of such offer or sale.
4.3 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If not all of the
Investors elect to purchase their pro rata share of the Equity Securities, then
the Company shall promptly notify in writing the Investors who do so elect and
shall offer such Investors the right to acquire such unsubscribed shares. The
Investors shall have ten (10) days after receipt of such notice to notify the
Company of its election to purchase all or a portion thereof of the unsubscribed
shares. If the Investors fail to exercise in full the rights of first refusal,
the Company shall have ninety (90) days thereafter to sell the Equity Securities
in respect of which the Investor's rights were not exercised, at a price and
upon general terms and conditions materially no more favorable to the
18.
purchasers thereof than specified in the Company's notice to the Investors
pursuant to Section 4.2 hereof. If the Company has not sold such Equity
Securities within ninety (90) days of the notice provided pursuant to Section
4.2, the Company shall not thereafter issue or sell any Equity Securities,
without first offering such securities to the Investors in the manner provided
above.
4.4 TERMINATION AND WAIVER OF RIGHTS OF FIRST REFUSAL. The rights of
first refusal established by this Section 4 shall not apply to, and shall
terminate upon the effective date of the registration statement pertaining to
the Company's Qualified OFFERING. The rights of first refusal established by
this Section 4 may be amended, or any provision waived, with the written consent
of Investors holding a majority of the Registrable Securities held by all
Investors and the agreement of the Company, or as permitted by Section 5.6.
4.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each Investor under this Section 4 may be transferred to the same parties,
subject to the same restrictions as any transfer of registration rights pursuant
to Section 2.10.
4.6 EXCLUDED SECURITIES. The rights of first refusal established by
this Section 4 shall have no application to any of the following Equity
Securities:
(a) up to 3,100,000 shares (or such greater number of shares
as may be approved in writing by the holders of a majority of the then
outstanding shares of Series Preferred (as defined in the Company's Certificate
of Incorporation), voting together as a single class) of Common Stock (and/or
options, warrants or other Common Stock purchase rights issued pursuant to such
options, warrants or other rights), as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like, issued or to be issued
after the Original Issue Date (as defined in the Company's Certificate of
Incorporation) to employees, officers or directors of, or consultants or
advisors to the Company or any subsidiary, pursuant to stock purchase or stock
option plans or other arrangements that are approved by the Board of Directors;
(b) any Equity Securities issued for consideration other than
cash pursuant to a merger, consolidation, acquisition or similar business
combination approved by the Board of Directors;
(c) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company;
(d) shares of Common Stock issued upon conversion of the
Shares;
(e) any Equity Securities issued pursuant to any equipment
leasing or loan arrangement, or debt financing from a bank or similar financial
or lending institution approved by the Board of Directors;
(f) any Equity Securities that are issued by the Company
pursuant to the Company's Qualified Offering;
19.
(g) up to 200,000 shares (or such greater number of shares as
may be approved in writing by the holders of a majority of the then outstanding
shares of Series Preferred (as defined in the Company's Certificate of
Incorporation), voting together as a single class) of Equity Securities issued
after the Original Issue Date in connection with strategic transactions
involving the Company and other entities, including (i) joint ventures,
manufacturing, marketing or distribution arrangements, or (ii) technology
transfer or development arrangements; provided that such strategic transactions
and the issuance of shares therein, has been approved by the Company's Board of
Directors; and
(h) any Series B Stock issued pursuant to the Purchase
Agreement.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
5.2 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
5.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
5.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the Purchase Agreement and the other documents delivered pursuant
thereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
5.5 SEVERABILITY. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
been excluded.
20.
5.6 AMENDMENT AND WAIVER.
(a) Except as otherwise expressly provided, this Agreement may
be amended or modified only upon the written consent of the Company and the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the
Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of
the Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the Registrable Securities.
(c) Notwithstanding the foregoing, this Agreement may be
amended with only the written consent of the Company to include additional
purchasers of Series B Stock as "INVESTORS," "HOLDERS" and parties hereto.
(d) For the purposes of determining the number of Holder or
Investors entitled to vote or exercise any rights hereunder, the Company shall
be entitled to rely solely on the list of record holders of its stock as
maintained by or on behalf of the Company.
5.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
5.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified; (b) when sent by confirmed electronic mail or facsimile if
sent during normal business hours of the recipient; if not, then on the next
business day; (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the party to be notified at the address as set forth on the signature
pages hereof or EXHIBIT A hereto or at such other address as such party may
designate by ten (10) days advance written notice to the other parties hereto.
5.9 ATTORNEYS' FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.10 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
21.
5.11 ADDITIONAL INVESTORS. Notwithstanding anything to the contrary
contained herein, if the Company shall issue additional shares of its Preferred
Stock pursuant to the Purchase Agreement or pursuant to the exercise of any
warrant to purchase shares of Preferred Stock, any purchaser of such shares of
Preferred Stock may become a party to this Agreement by executing and delivering
an additional counterpart signature page to this Agreement and shall be deemed
an "Investor" hereunder.
5.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
5.13 TERMINATION OF PRIOR AGREEMENT. The Prior Agreement is hereby
terminated in its entirety and restated herein. Such termination and restatement
is effective upon the execution of this Agreement by the Company and the holders
of sixty-six and two-thirds percent (66-2/3%) in interest of the Series A Stock
and the holders of sixty-six and two-thirds (66-2/3%) in interest of the Series
B Stock held by the Prior Investors outstanding as of the date of this
Agreement. Upon such execution, all provisions of, rights granted and covenants
made in the Prior Agreement are hereby waived, released and terminated in their
entirety and shall have no further force and effect.
[THIS SPACE INTENTIONALLY LEFT BLANK]
22.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
COMPANY:
STRUCTURAL GENOMIX, INC.
Signature: /s/ Herbert G. Mutter
-------------------------------------------
Print Name: Herbert G. Mutter
------------------------------------------
Title: CFO
-----------------------------------------------
Address: 10505 Roselle Street
San Diego, CA 92121
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
INVESTOR:
Investor Name: ATLAS VENTURE FUND IV, L.P.
-------------------------
ATLAS VENTURE PARALLEL FUND V-A, C.V.
Signature: /s/ Axel Bicham ATLAS VENTURE PARALLEL FUND IV-B, C.V.
---------------------------
Name: Axel Bicham ATLAS VENTURE ENTREPRENEURS' FUND V,
Title: VP L.P.
By: Atlas Venture Associates IV, L.P.
Address: 890 Winter Street its general partner
---------------------------
Waltham, MA 02451 By: Atlas Venture Associates IV, L.P.
--------------------------- its general partner
INVESTOR:
Investor Name: Prospect Venture Partners
--------------------------
Print Name: /s/ A.E. Barkas
-----------------------
Title: CFO
----------------------------
Address: 10505 Roselle Street
San Diego, CA 92121
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
INVESTOR:
DLJ Capital Corporation
/s/ Vijay K. Lathi
- ------------------------------
By: Vijay K. Lathi
Its: Director
Sprout Capital VIII, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
/s/ Vijay K. Lathi
- ------------------------------
By: Vijay K. Lathi
Its: Director
Sprout Venture Capital, L.P.
By: DLJ Capital Corporation
Its: General Partner
/s/ Vijay K. Lathi
- ------------------------------
By: Vijay K. Lathi
Its: Director
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
Its: General Partner
/s/ Vijay K. Lathi
- ------------------------------
By: Vijay K. Lathi
Its: Attorney In Fact
Investor Name: Index Ventures/Parallel Entrepreneur Fund (Jersey) LP
Index Ventures/(Delaware) LP
Index Ventures/(Jersey) LP
Signature: /s/ Katherine Wilson
--------------------------
Name: Katherine Wilson
Title: Director on behalf of Index Ventures Associates I Limited
as General Partner
Address: No. 1 Seaton Place
St. Helier, Jersey
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: Index Ventures/GMBH & Co. KG
Signature: /s/ Katherine Wilson
--------------------------
Name: Katherine Wilson
Title: Director on behalf of Index Ventures I (SLP) Limited As
Special Limited Partner
Address: No. 1 Seaton Place
St. Helier, Jersey
Investor Name: Index Ventures Management SA
on behalf of
Index Employee Investment Plan
Signature: /s/ David Rimer
--------------------------
Name: David Rimer
Title: Partner
Address:
Investor Name: Vulcan Ventures Inc.
Signature: /s/ W. Lance Conn
--------------------------
Name: W. Lance Conn
Title: Executive Vice President
Address: 505 5th Ave. S., Ste. 900
Seattle, WA 98104
ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership
by: ARE-QRS CORP.,
a Maryland corporation, general partner
By: /s/ Joel S. Marcus
----------------------------------
Joel S. Marcus
Chief Executive Officer
Joel Marcus and Etsuko Mason
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Telephone: 626-578-0777
jmarcus@labspace.com and emason@labspace.com
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: Walter Dec
Signature: /s/ Walter Dec
--------------------------
Name:
Title:
Address: 8 Marigold Lane
Califon, NJ 07830
Investor Name: Coleman Swenson Hoffman Booth IV L.P.
By: Its General Partner,
CSHB Ventures IV L.P.
Signature: /s/ Larry H. Coleman
--------------------------
Name: Larry H. Coleman
Title: General Partner
Address: 237 Second Avenue South
Franklin, TN 37064-2649
Investor Name: Spring Creek Partners
Signature: /s/ Duane R. Bach
--------------------------
Name: Duane R. Bach
Title: GP
Address: 330 Spring Creek Road
Rockford, IL 61107
Investor Name: Scinet Development & Holdings, Inc.
Signature: /s/ John E. Lamier
--------------------------
Name: John E. Lamier
Title: President
Address: 3000 Carew Tower, 441 Vine Street
Cincinnati, OH 45202
Investor Name: Stelios Papadapoulous
Signature: /s/ Stelios Papadapoulous
--------------------------
Name:
Title:
Address: 3 Somerset Drive South
Great Neck, NY 11020
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: John P. Schmidt
Signature: /s/ John P. Schmidt
--------------------------
Name: John P. Schmidt
Title:
Address: 11 Honey Lake Drive
Princeton, NJ 08540
Investor Name: Peter N. Reikes
Signature: /s/ Peter N. Reikes
--------------------------
Name: Peter N. Reikes
Title:
Address: 200 East 64th Street, Apt. 23A
New York, NY 10021
Investor Name: Frederick Frank
Signature: /s/ Frederick Frank
--------------------------
Name:
Title:
Address: 109 East 91st Street
New York, NY 10128
Investor Name: BAVP, L.P.
Signature: /s/ Louis C. Bock
--------------------------
Name: Louis C. Bock
Title: Managing Partner
Address: 950 Tower Lane, Ste. 700
Foster City, CA 94404
Investor Name: George E. Rossmann
Signature: /s/ George E. Rossmann
--------------------------
Name: George E. Rossmann
Title:
Address: 219 Rosalie Court
Los Gatos, CA 95032
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: Amerindo Technology Growth Fund II Inc.
Signature: /s/ Gary Tanaka
---------------------------
Name: Gary Tanaka
Title: Director
Address: c/o Amerindo Investment Advisors Inc.
Attn: David Mainser
399 Park Avenue, 22nd Floor
New York, NY 10022
Investor Name: K. Flynn McDonald
Signature: /s/ K. Flynn McDonald
--------------------------
Name: K. Flynn McDonald
Title:
Address: 67 Parker Avenue
San Francisco, CA 94118
Investor Name: MDS Life Sciences Technology Barbados Investment Trust
Signature: /s/ Gillian R. Jordan
--------------------------
Name: Gillian R. Jordan
Title: Trustee
Address:
Investor Name: MDS Life Sciences Technology Fund USA, L.P.
By MDS Capital USA (GP) Inc., General Partner
Signature: /s/ Thomas E. Willett
--------------------------
Name: Thomas E. Willett
Title: Director
Address:
Investor Name: MDS Life Sciences Technology Fund Limited Partnership, by its
General Partner, MDS Sciences Technology Fund (GP) Inc.
Signature: /s/ G. Bedell/Anthony Flynn
-----------------------------
Name: G. Bedell/Anthony Flynn
Title: Secretary/Vice President
Address: 100 International Boulevard
Toronto Ontario M9W 6J6
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: For and on behalf of Cardinal Investments Limited
Director of SC (GP) Inc., General Partner of
SC Biotechnology Development Fund L.P.
Signature: /s/ William Walmsley and John Ackerley
--------------------------------------------
Name: William Walmsley and John Ackerley
Title: Directors
Address:
Investor Name: OrbiMed Associates
Signature: /s/ Carl Gordon
--------------------------
Name: Carl Gordon
Title: Partner
Address: 767 Third Avenue
New York, NY 10017
Investor Name: Caduceus Private Investments, L.P.
Signature: /s/ Carl Gordon
--------------------------
Name: Carl Gordon
Title: Partner
Address: 767 Third Avenue
New York, NY 10017
Investor Name: SGC Partner I LLC
Signature: /s/ Christopher A. White
--------------------------------------
Name: Christopher A. White
Title: Director
Address: 1221 Avenue of the Americas
New York, NY 10020
VECTOR LATER-STAGE EQUITY FUND II, L.P.
By: Vector Fund Management II, L.L.C.
Its: General Partner
By: /s/ Barclay A. Phillips
----------------------------------
Barclay A. Phillips
Its: Managing Director
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
VECTOR LATER-STAGE EQUITY FUND II (QP), L.P.
By: Vector Fund Management II, L.L.C.
Its: General Partner
By: /s/ Barclay A. Phillips
----------------------------------
Barclay A. Phillips
Its: Managing Director
Investor Name: William Buchanan
Signature: /s/ William Buchanan
--------------------------
Name: William Buchanan
Title:
Address:
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: John P. Dunphy
Signature: /s/ John P. Dunphy
--------------------------
Name: John P. Dunphy
Title:
Address: 202 Bristol Road
Wellesley, MA 02481
Investor Name: Kim Fennebresque
Signature: /s/ Kim Fennebresque
--------------------------
Name: Kim Fennebresque
Title:
Address:
Investor Name: James M. Hesburgh
Signature: /s/ James M. Hesburgh
--------------------------
Name: James M. Hesburgh
Title: Managing Director
Address:
Investor Name: Meriwether F. Lewis
Signature: /s/ Meriwether F. Lewis
--------------------------
Name: Meriwether F. Lewis
Title:
Address:
Investor Name: David M. Malcolm
Signature: /s/ David M. Malcolm
--------------------------
Name: David M. Malcolm
Title:
Address:
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: Charles E. Mather
Signature: /s/ Charles E. Mather
---------------------------
Name: Charles E. Mather
Title:
Address: 115 Central Park W.
New York, NY 10023
Investor Name: Abi Subramanian
Signature: /s/ Abi Subramanian
--------------------------
Name: Abi Subramanian
Title:
Address: 1221 Avenue of the Americas
New York, NY 10020
Investor Name: Rutter Investments L.P.
Signature: /s/ William J. Rutter
--------------------------
Name: William J. Rutter
Title: General Partner
Address: One Market, Suite 1475, Steuart Tower
San Francisco, CA 94105
Investor Name: William J. Rutter Revocable Trust U/A/D 04/11/02
Signature: /s/ William J. Rutter
--------------------------
Name: William J. Rutter
Title: General Partner
Address: One Market, Suite 1475, Steuart Tower
San Francisco, CA 94105
Investor Name: Andrej Sali
Signature: /s/ Andrej Sali
--------------------------
Name: Andrej Sali
Title:
Address: 694-A De Haro Street
San Francisco, CA 94105
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
Investor Name: Wayne A. Hendrickson
Signature: /s/ Wayne A. Hendrickson
--------------------------
Name: Wayne A. Hendrickson
Title:
Address:
Investor Name: Barry Honig
Signature: /s/ Barry Honig
--------------------------
Name:
Title:
Address: 14 Castle Road
Irvington, NY 10533
Investor Name: GC&H Investments
Signature: /s/ John L. Cardoza
--------------------------
Name: John L. Cardoza
Title: Executive Partner
Address: One Maritime Plaza, #2000
San Francisco, CA 94111
Investor Name: Ken A Dill
Signature: /s/ Ken A Dill
--------------------------
Name: Ken A Dill
Title: Professor
Address: P.O. Box 593
Montara, CA 94037
Investor Name: Christopher S. Henney
Signature: /s/ Christopher S. Henney
---------------------------
Name: Christopher S. Henney
Title:
Address: 414 39th Ave. East
Seattle, WA 98112
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
SIGNATURE PAGE]
EXHIBIT A
SCHEDULE OF INVESTORS
INVESTORS
- ---------------------------------------------
BAVP, L.P.
c/o BA Ventures Partners LLC
950 Tower Lane, Suite 700
Foster City, CA 94404
- ---------------------------------------------
AMERINDO TECHNOLOGY GROWTH FUND
II INC.
c/o Amerindo Investment Advisors Inc.
399 Park Avenue, 22nd Floor
New York, NY 10022
- ---------------------------------------------
K. FLYNN MCDONALD
67 Parker Avenue
San Francisco, CA 94118
- ---------------------------------------------
MDS LIFE SCIENCES TECHNOLOGY FUND
USA, L.P.
44 Whippany Road
Morristown, NJ 07960
100 International Boulevard
Toronto Ontario M9W 6J6
Canada
- ---------------------------------------------
MDS LIFE SCIENCES TECHNOLOGY
BARBADOS INVESTMENT TRUST
P.O. Box 261, Bush Hill
Bay Street
Bridgetown, Barbados
100 International Boulevard
Toronto Ontario M9W 6J6
Canada
- ---------------------------------------------
MDS LIFE SCIENCES TECHNOLOGY FUND
LIMITED PARTNERSHIP
100 International Boulevard
Toronto Ontario M9W 6J6
Canada
A-1.
INVESTORS
- ---------------------------------------------
SC BIOTECHNOLOGY DEVELOPMENT
FUND LP
One Capital Place
P.O. Box 897 GT
Grand Cayman
British Cayman Islands
100 International Boulevard
Toronto Ontario M9W 6J6
Canada
- ---------------------------------------------
CADUCEUS PRIVATE INVESTMENTS, LP
767 Third Avenue, 30th Floor
New York, NY 10017
- ---------------------------------------------
ORBIMED ASSOCIATES, LLC
767 Third Avenue, 30th Floor
New York, NY 10017
- ---------------------------------------------
SGC PARTNERS I LLC
1221 Avenue of the Americas, 15th Floor
New York, NY 10020
- ---------------------------------------------
VECTOR LATER-STAGE EQUITY FUND II
1751 Lake Cook Road, Suite 350
Deerfield, IL 60015
- ---------------------------------------------
VECTOR LATER-STAGE EQUITY FUND
(Q.P.) II
1751 Lake Cook Road, Suite 350
Deerfield, IL 60015
- ---------------------------------------------
ATLAS VENTURE FUND IV, L.P.
890 Winter Street
Suite 320
Waltham, MA 02451
- ---------------------------------------------
ATLAS VENTURE PARALLEL FUND IV-A
C.V.
890 Winter Street
Suite 320
Waltham, MA 02451
A-2.
INVESTORS
- ---------------------------------------------
ATLAS VENTURE PARALLEL FUND IV-B,
C.V.
890 Winter Street
Suite 320
Waltham, MA 02451
- ---------------------------------------------
ATLAS VENTURE ENTREPRENEURS' FUND
IV, L.P.
890 Winter Street
Suite 320
Waltham, MA 02451
- ---------------------------------------------
PROSPECT VENTURE PARTNERS, L.P.
435 Tasso Street, Suite 200
Palo Alto, CA 94301
- ---------------------------------------------
DLJ CAPITAL CORP.
3000 Sand Hill Road, Bldg 3, Suite 170
Menlo Park, CA 94025
- ---------------------------------------------
SPROUT CAPITAL VIII, L.P.
3000 Sand Hill Road, Bldg 3, Suite 170
Menlo Park, CA 94025
- ---------------------------------------------
SPROUT VENTURE CAPITAL, L.P.
3000 Sand Hill Road, Bldg 3, Suite 170
Menlo Park, CA 94025
- ---------------------------------------------
INDEX VENTURES I (JERSEY) L.P.
c/o Mourant & Co.
P.O. Box 87
22 Grenville Street
St. Helier
Jersey JE4 8PX
Channel Islands
A-3.
INVESTORS
- ---------------------------------------------
INDEX VENTURES I (DELAWARE) L.P.
c/o Mourant & Co.
P.O. Box 87
22 Grenville Street
St. Helier
Jersey JE4 8PX
Channel Islands
- ---------------------------------------------
INDEX VENTURES I PARALLEL
ENTREPRENEUR FUND (JERSEY)
L.P.
c/o Mourant & Co.
P.O. Box 87
22 Grenville Street
St. Helier
Jersey JE4 8PX
Channel Islands
- ---------------------------------------------
INDEX VENTURES I GMBH & CO. KG
c/o Mourant & Co.
P.O. Box 87
22 Grenville Street
St. Helier
Jersey JE4 8PX
Channel Islands
- ---------------------------------------------
INDEX VENTURES MANAGEMENT SA on
behalf of INDEX EMPLOYEE INVESTMENT
PLAN
c/o Index Venture Management
2 rue de Jargonnant
1207 Geneva
Switzerland
- ---------------------------------------------
VULCAN VENTURES INC.
110 110th Avenue Northeast, Suite 550
Bellevue, WA 98004
- ---------------------------------------------
ALEXANDRIA REAL ESTATE EQUITIES
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
A-4.
INVESTORS
- ---------------------------------------------
COLEMAN SWENSON HOFFMAN BOOTH
IV L.P.
237 Second Avenue South
Franklin, TN 37064
- ---------------------------------------------
SPRING CREEK PARTNERS
330 Spring Creek Road
Rockford, IL 61107
- ---------------------------------------------
SCINET DEVELOPMENT & HOLDINGS,
INC.
3000 Carew Tower
441 Vine Street
Cincinnati, OH 45202
- ---------------------------------------------
STELIOS PAPADAPOULOUS
3 Somerset Drive South
Great Neck, NY 11020
- ---------------------------------------------
PETER REIKES
200 East 64th Street, Apt. 23A
New York, NY 10128
- ---------------------------------------------
JOHN P. SCHMIDT
11 Honey Lake Drive
Princeton, NJ 08540
- ---------------------------------------------
DR. CHRISTOPHER S. HENNEY
414 39th Ave. East
Seattle, WA 98112
- ---------------------------------------------
FREDERICK FRANK
109 East 91st Street
New York, NY 10128
- ---------------------------------------------
DR. JOSHUA LEDERBERG
The Rockefellar University
Suite 115
1230 York Avenue
New York, NY 10021
(212) 327-7809
A-5.
INVESTORS
- -------------------------------------------------
DR. WAYNE HENDRICKSON
Columbia University
Department of Biochemistry & Molecular Biophysics
630 West 186th Street
New York, NY 10032
(212) 305-3456
- -------------------------------------------------
DR. BARRY HONIG
Department of Biochemistry and
Molecular Biophysics
College of Physicians and Surgeons
Columbia University
New York, NY 10032
(212) 305-7970
- -------------------------------------------------
GC&H INVESTEMENTS
One Maritime Plaza
20th Floor
San Francisco, CA 94111
Kenneth L. Guernsey Esq.
Jim Kindler
(415) 693-2000
- -------------------------------------------------
WALTER DEC
8 Marigold Lane
Califon, NJ 07830
(908) 832-6323
- -------------------------------------------------
GEORGE E. ROSSMAN
658 High Street
Palo Alto, CA 943011
(650) 330-0775
- -------------------------------------------------
WILLIAM BUCHANAN
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- -------------------------------------------------
JOHN P. DUNPHY
202 Bristol Road
Wellesley, MA 02481
A-6.
INVESTORS
- ---------------------------------------------
KIM FENNEBRESQUE
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- ---------------------------------------------
JAMES M. HESBURGH
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- ---------------------------------------------
MERIWETHER F. LEWIS
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- ---------------------------------------------
DAVID M. MALCOLM
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- ---------------------------------------------
CHARLES E. MATHER
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
(212) 278-6000
- ---------------------------------------------
ABI SUBRAMANIAN
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
- ---------------------------------------------
RUTTER INVESTMENTS L.P.
c/o Synergenics, LLC
One Market, Suite 1475
Steuart Tower
San Francisco, CA 94105
A-7.
INVESTORS
- ---------------------------------------------
WILLIAM J. RUTTER REVOCABLE TRUST
c/o Synergenics, LLC
One Market, Suite 1475
Steuart Tower
San Francisco, CA 94105
- ---------------------------------------------
ANDREJ SALI
694-A De Haro Street
San Francisco, CA 94105
- ---------------------------------------------
KEN A DILL AND JOLAND SCHREURS
P.O. Box 0593
Montara, CA 94037
A-8.