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ATHERSYS, INC. Exhibit 4.6
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "AGREEMENT"), dated as of the 28th day of April, 2000, is by and
among Athersys, Inc. (the "COMPANY"), Primus Capital Fund IV Limited
Partnership, Primus Executive Fund Limited Partnership, Blue Chip Capital Fund
II Limited Partnership, Miami Valley Venture Fund L.P., Sentron Medical
Incorporated, Warburg Dillon Read LLC, Ohio Innovation Fund I, L.P., The EBTC
Foundation, Athersys Investors II, LLC, Hoegh Invest, AS and NeoMed Innovation,
ASA (collectively, the "CLASS C INVESTORS"), and the investors listed on
SCHEDULE A attached hereto (collectively the "CLASS F INVESTORS" with the Class
C Investors and Class F Investors collectively being referred to as the
"INVESTORS"), Biotech 3 Investment L.L.C. ("BIOTECH"), and each of the
stockholders of the Company listed on SCHEDULE B attached hereto (individually,
a "STOCKHOLDER" and collectively, the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, the Class F Investors and the Company executed that certain
Securities Purchase Agreement dated as of March 30, 2000 (the "SECURITIES
PURCHASE AGREEMENT"), pursuant to which the Class F Investors agreed to purchase
from the Company shares of the Company's Class F Convertible Preferred Stock,
par value $.01 per share, on certain terms and conditions contained in the
Securities Purchase Agreement (the "PURCHASE"); and
WHEREAS, in connection with the Purchase the parties hereto execute
this Agreement to amend and restate the Amended and Restated Registration Rights
Agreement, dated March 30, 2000, by and among the Company, Biotech, the Class C
Investors, certain Class F Investors and the Stockholders; and
WHEREAS, the Company desires to induce Class F Investors to consummate
the Purchase by executing this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein, the parties agree as follows:
1. Definitions.
"AGREEMENT" has the meaning set forth in the Recitals.
"AMENDED CERTIFICATE" means the Amended and Restated Certificate of
Incorporation of the Company.
"BIOTECH" has the meaning set forth in the Preamble to this Agreement.
"BIOTECH SHARES" means (i) any equity securities of the Company issued
or issuable upon the conversion of Preferred Shares held by Biotech or any
transferee, successor or
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assign of Biotech; (ii) any shares of equity securities of the Company held as
the date hereof or acquired hereafter by Biotech; (iii) any equity securities of
the Company issued or issuable with respect to the securities referred to in
clauses (i) and (ii) by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization; and (iv) any other shares of equity securities of the Company
held by persons holding securities referred to in clauses (i), (ii) and (iii);
provided, however, that Biotech Shares shall not include any securities the sale
of which has been registered pursuant to the Securities Act or sold to the
public pursuant to Rule 144 promulgated by the Commission under the Securities
Act. For purposes of this Agreement, a Person will be deemed to be a Holder of
Biotech Shares whenever such Person holds a security exercisable for or
convertible into such Biotech Shares, whether or not such exercise or conversion
has actually been effected.
"CLASS C INVESTORS" has the meaning set forth in the Preamble to this
Agreement.
"CLASS C INVESTORS' SHARES" means, at any time, the following shares
held by any Class C Investors: (i) any shares of Common Stock then outstanding
that were issued upon conversion of the Class C Preferred; (ii) any shares of
Common Stock then issuable upon conversion of the Class C Preferred; (iii) any
shares of Common Stock then outstanding which were issued as, or were issued
directly or indirectly upon the conversion or exercise of other securities
issued as, a dividend or other distribution with respect to or in replacement of
other Class C Investors' Shares; (iv) any shares of Common Stock then issuable
directly or indirectly upon the conversion or exercise of other securities which
were issued as a dividend or other distribution with respect to or in
replacement of other Class C Investors' Shares; and (v) any other Shares held by
a Class C Investor; provided, however, that Class C Investors' Shares shall not
include any shares of Common Stock the sale of which has been registered
pursuant to the Securities Act or sold to the public pursuant to Rule 144
promulgated by the Commission under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a Holder of Class C Investors' Shares
whenever such Person holds a security exercisable for or convertible into such
Class C Investors' Shares, whether or not such exercise or conversion has
actually been effected.
"CLASS C PREFERRED" means the Class C Convertible Preferred Stock, par
value $.01, of the Company.
"CLASS F PREFERRED" means the Class F Convertible Preferred Stock, par
value $.01, of the Company.
"CLASS F INVESTORS' SHARES" means, at any time, the following shares
held by any Class F Investors: (i) any shares of Common Stock then outstanding
that were issued upon conversion of the Class F Preferred; (ii) any shares of
Common Stock then issuable upon conversion of the Class F Preferred; (iii) any
shares of Common Stock then outstanding which were issued as, or were issued
directly or indirectly upon the conversion or exercise of other securities
issued as, a dividend or other distribution with respect to or in replacement of
other Class F Investors' Shares; (iv) any shares of Common Stock then issuable
directly or indirectly upon the conversion or exercise of other securities which
were issued as a dividend or other distribution with respect to or in
replacement of other Class F Investors' Shares; and (v) any other Shares held by
a Class F Investor; provided, however, that Class F Investors' Shares shall not
include any shares of Common Stock the sale of which has been registered
pursuant to the
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Securities Act or sold to the public pursuant to Rule 144 promulgated by the
Commission under the Securities Act. For purposes of this Agreement, a Person
will be deemed to be a Holder of Class F Investors' Shares whenever such Person
holds a security exercisable for or convertible into such Class F Investors'
Shares, whether or not such exercise or conversion has actually been effected.
"COMMON STOCK" means common stock, par value $.01, of the Company.
"COMPANY" has the meaning set forth in the Preamble to this Agreement.
"DEMAND REGISTRATIONS" means, collectively, Long-Form Demand
Registrations and Short-Form Demand Registrations.
"DEMANDING SHAREHOLDERS" has the meaning set forth in SECTION 3(d).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder, all as the same
shall be in effect at that time.
"HOLDER" means any holder of Investors' Shares or Registrable
Securities who is a party to this Agreement (or becomes a party hereto pursuant
to SECTION 12 hereof) or is a successor or assign or subsequent holder
contemplated by SECTION 13(e) hereof.
"INVESTORS" has the meaning set forth in the Preamble to this
Agreement.
"INVESTORS' SHARES" means, collectively, Class C Investors' Shares and
Class F Investors' Shares.
"IPO" means the Company's first underwritten public offering of shares
of common stock consummated pursuant to a registration statement declared
effective under the Securities Act, other than a registration statement relating
solely to the sale of securities to participants in a company stock plan or a
registration relating solely to a Rule 145 transaction.
"LONG-FORM DEMAND REGISTRATION" has the meaning set forth in SECTION
3(a)(v).
"LONG-FORM REGISTRATION" has the meaning set forth in SECTION 3(a)(i).
"PERSON" means any individual, sole proprietorship, partnership,
corporation, limited liability company, unincorporated society or association,
trust or other entity.
"PIGGYBACK REGISTRATION" has the meaning set forth in SECTION 2(a).
"PREFERRED SHARES" means the Class A Convertible Preferred Stock, $.01
par value, the Class B Convertible Preferred Stock, $.01 par value, the Class C
Convertible Preferred Stock, $.01 par value, the Class D Convertible Preferred
Stock, $.01 par value, the Class F Convertible Preferred Stock, $.01 par value,
the Class G Convertible Preferred Stock, $.01 par value, and any Blank Check
Preferred Stock, $.01 par value, now or hereafter issued.
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"PURCHASE" has the meaning set forth in the Preamble to this Agreement.
"REGISTRABLE SECURITIES" means, collectively the Class C Investors'
Shares, the Class F Investors' Shares and the Biotech Shares.
"REGISTRATION EXPENSES" has the meaning set forth in SECTION 6(a).
"S-2 SHORT-FORM REGISTRATION" has the meaning set forth in SECTION
3(a)(iii).
"S-3 SHORT-FORM REGISTRATION" has the meaning set forth in SECTION
3(a)(iii).
"SEC" means the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
"SHARES" means shares of capital stock of the Company.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder, all as the same shall
be in effect at that time.
"SECURITIES PURCHASE AGREEMENT" has the meaning set forth in the
Preamble to this Agreement.
"SHORT-FORM DEMAND REGISTRATION" has the meaning set forth in SECTION
3(a)(v).
"SHORT-FORM REGISTRATION" has the meaning set forth in SECTION
3(a)(iii).
"STOCKHOLDER" and "STOCKHOLDERS" have the meanings set forth in the
Preamble to this Agreement.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act, and the registration form to be
used may be used for the registration of Registrable Securities, the
Company will give prompt written notice to Biotech, the Investors and the
Stockholders of its intention to effect such a registration (a "PIGGYBACK
REGISTRATION"). The Company will include in such registration (i) all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within fifteen (15) days after the
receipt of the Company's notice, and (ii) such other securities of the
Company held by the Stockholders with respect to which the Company has
received written requests for inclusion therein within fifteen (15) days
after the receipt of the Company's notice; provided, however, that no
registration of securities held by the Stockholders or any other
stockholders pursuant to this SECTION 2 shall be at the exclusion of any
Registrable Securities.
(b) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities
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requested to be included in such registration exceeds the number that can
be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company will include in such registration
shares in the following order until such limitation has been met: first,
the securities the Company proposes to sell; second, the Registrable
Securities requested to be included in such registration, pro rata among
the holders of such Registrable Securities on the basis of the number of
Shares owned by each such holder; third, the securities requested to be
included in such registration by the Stockholders; and fourth, other
securities requested to be included in such registration; provided that in
any event, after the IPO, the Holders of the Registrable Securities shall
be entitled to have their Shares represent at least twenty-five percent
(25%) of the total shares included in any such registration.
(c) Expiration of Piggyback Registration Rights. The "PIGGYBACK"
registration rights granted to Holders of Registrable Securities under this
SECTION 2 shall expire at the later of (i) ninety (90) days after all
Registrable Securities are freely tradeable to the public through a broker,
dealer or market maker in compliance with Rule 144(k) under the Securities
Act, without limitation (or any similar rule then in force) or (ii) five
(5) years after the closing of the IPO.
3. Demand Registration.
(a) Requests for Registration.
(i) Subject to the terms and conditions of this Agreement, the
Holders of a majority of the then outstanding Class C Investors'
Shares at any time after the earlier of (i) the consummation of the
IPO or (ii) October 31, 2000 may request registration under the
Securities Act of all or part of their Class C Investors' Shares on
Form S-1 or any similar long-form registration statement ("LONG-FORM
REGISTRATION") by delivering a written request to the Company to that
effect; provided, however, that, in the case of any such Long-Form
Registration, the aggregate offering value of all of the shares to be
offered must be reasonably expected to equal at least Five Million
Dollars ($5,000,000).
(ii) Subject to the terms and conditions of this Agreement, the
Holders of at least twenty-five percent (25%) of the then outstanding
Class F Investors' Shares at any time after the earlier of (i) the
consummation of an IPO or (ii) October 31, 2000, may request a Long
Form Registration by delivering a written request to the Company to
that effect; provided, however, that, in the case of any such Long
Form Registration, the aggregate offering value of all of the shares
to be offered must be reasonably expected to equal at least Five
Million Dollars ($5,000,000).
(iii) Subject to the terms and conditions of this Agreement, the
Holders of at least twenty-five percent (25%) of the then outstanding
Class C Investors' Shares and Biotech Shares at any time may request
registration under the Securities Act of all or part of their
Registrable Securities on Form S-2 ("S-2 SHORT-FORM REGISTRATION") or
S-3 ("S-3 SHORT-FORM REGISTRATION") or any similar short-form
registration statement (collectively, a "SHORT-FORM
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REGISTRATION"), if available, by delivering a written request to the
Company to that effect; provided, however, that, in the case of any
such Short-Form Registration, the aggregate offering value of the
Class C Investors' Shares and Biotech Shares requested to be included
in such registration pursuant to SECTION 3(a), including, without
limitation, SECTION 3(a)(v), must be reasonably expected to equal at
least Five Hundred Thousand Dollars ($500,000).
(iv) Subject to the terms and conditions of this Agreement, the
Holders of the then outstanding Class F Investors' Shares at any time
may request a S-3 Short-Form Registration of their Class F Investors'
Shares, if available, by delivering a written request to the Company
to that effect; provided, however, that, in the case of any such S-3
Short-Form Registration, the aggregate offering value of the Class F
Investors' Shares requested to be included in such registration
pursuant to SECTION 3(a), including, without limitation, SECTION
3(a)(v), must be reasonably expected to equal at least Five Hundred
Thousand Dollars ($500,000).
(v) If the Holders of Registrable Securities initiating a
registration pursuant to SECTION 3(a) intend to distribute the
Registrable Securities by means of an underwriting, they shall so
advise the Company in their written notice. Within ten (10) days after
receipt of any written request pursuant to (i), (ii), (iii) or (iv)
above, the Company will give written notice of such request to all of
the Investors and Biotech, and will include, subject to the terms of
SECTION 3(d), in any such registration that constitutes a Demand
Registration all securities with respect to which the Company has
received written requests from the Investors and Biotech, for
inclusion therein within fifteen (15) days after receipt of the
Company's notice. Any Long-Form Registration and any Short-Form
Registration requested pursuant to this SECTION 3(a), other than a
registration in which the Company sells any of its securities in a
primary offering, are referred to herein, respectively, as a
"LONG-FORM DEMAND REGISTRATION", and a "SHORT-FORM DEMAND
REGISTRATION". The Company may elect to include its securities in a
primary offering in any registration requested pursuant to this
SECTION 3(a); provided, however, that if the Company sells any of its
securities in a primary offering, such offering shall not be deemed to
be a Demand Registration and shall be considered a Piggyback
Registration and will be governed by SECTION 2.
(b) Long-Form Demand Registrations. The Holders of Class C Investors'
Shares may request one Long-Form Demand Registration pursuant to Section
3(a)(i), and the Holders of Class F Investors' Shares may request two (2)
Long-Form Demand Registrations pursuant to SECTION 3(a)(ii). The Company
will pay the Registration Expenses therefor of the Company and the Holders
of Investors' Shares. A registration will not count as a Long-Form Demand
Registration under this SECTION 3 until (i) it has become effective (and is
not the subject of any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court for any reason); (ii) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration statement are
satisfied and (iii) the Holders are able to register and sell at least
seventy-five percent (75%) of their desired Shares. Notwithstanding the
terms of the preceding sentence, a registration which does not become
effective after the Company has filed a registration statement with respect
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thereto solely by reason of the refusal to proceed of the Holders of
Investors' Shares (unless such refusal is due to the disclosure of adverse
information concerning the Company after such demand is made) shall be
deemed to have been effected by such Holders and count as a Long-Form
Demand Registration under this SECTION 3, unless the Holders of Investors'
Shares making such demand shall have elected to pay the Registration
Expenses of the Holders of Investors' Shares incurred in connection
therewith.
(c) Short-Form Demand Registration. The Holders of Registrable
Securities will be entitled to request pursuant to SECTION 3(a)(iii) or
SECTION 3(a)(iv), respectively, no more than two (2) Short-Form Demand
Registrations in any twelve (12) month period. The Company will pay the
Registration Expenses therefor of the Company and the Holders of
Registrable Securities in connection with any such registration. A
registration will not count as one of the Short-Form Demand Registrations
under this SECTION 3(c) until it has become effective; provided that in any
event the Company will pay the Registration Expenses of the Company and the
Holders of Registrable Securities in connection with any such registration
initiated as a Short-Form Demand Registration. Notwithstanding the terms of
the preceding sentence, a registration that does not become effective after
the Company has filed a registration statement with respect thereto solely
by reason of the refusal to proceed of the Holders of Registrable
Securities (unless such refusal is due to the disclosure of adverse
information concerning the Company after such demand is made) shall be
deemed to have been effected by such Holders and count as a Short-Form
Demand Registration under this SECTION 3(c), unless the Holders of
Registrable Securities making such demand shall have elected to pay the
Registration Expenses of the Holders of Registrable Securities incurred in
connection therewith.
(d) Priority on Demand Registrations. If a Demand Registration is an
underwritten public offering and the managing underwriters advise the
Company that in their opinion the number of Registrable Securities and
other securities requested to be included exceeds the number of Registrable
Securities and other securities which can be sold in an orderly manner in
such offering without materially adversely affecting the price of the
Shares to be sold in such registrations, the Company will include in such
registration shares in the following order until such limitation has been
met: first, the number of securities requested to be included therein by
the Holders of Registrable Securities pro rata among Holders of Registrable
Securities on the basis of the number of Shares owned by such Holders (the
"DEMANDING SHAREHOLDERS"), second, securities requested by the Company to
be included in such registration pursuant to "piggyback" rights hereunder;
and third, other securities requested by the Stockholders to be included in
such registration.
(e) Restrictions on Registrations.
(i) The Company may postpone for a reasonable period, not to
exceed an aggregate of one hundred twenty (120) days in any twelve
(12) month period, the filing or the effectiveness of a registration
statement for a Demand Registration, if the Company determines
reasonably and in good faith that such filing would have a material
adverse effect on any proposal or plan of the Company to engage in any
transaction, provided that in such event the Holders of
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Investors' Shares initially requesting such Demand Registration will
be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration will not count as a permitted
Demand Registration hereunder, and the Company will pay all
Registration Expenses in connection with such withdrawn registration.
In addition, the Company shall not be required to effect any
registration in accordance with the terms of this Agreement within one
hundred eighty (180) days after the effective date of the IPO or
ninety (90) days after the effective date of any subsequent primary
offering (or combined primary and secondary offering) of its
securities (other than a registration statement on Form S-8, or any
successor forms or a registration on Form S-4 or relating to a Rule
145 transaction). The Company may only provide the Delay Notice only
once in any twelve (12) month period.
(ii) The rights granted under SECTION 3(a)(iii) and SECTION
3(a)(iv) shall expire ninety (90) days after all Registrable
Securities are freely tradeable to the public through a broker, dealer
or market maker in compliance with Rule 144(k) under the Securities
Act, without limitation (or any similar rule than in force).
(iii) The Company shall not be required to effect a Long-Form
Demand Registration unless it is a firmly underwritten offering by an
underwriter of nationally recognized standing (but not limited to
"Tier 1" or "Tier 2" underwriters). The Company shall have the sole
right to select such underwriter; provided, that in the event the
Company has not selected an underwriter within thirty (30) days of the
request for Demand Registration, the Demanding Shareholders may select
such underwriter subject to approval of the Company not to be
unreasonably withheld.
(f) The Company shall give prompt notice to all holders of Registrable
Securities of the receipt of a request for registration pursuant to this
SECTION 3.
4. Holdback Agreements.
(a) Biotech, the Investors and each Stockholder agree not to effect
any public sale or distribution (including sales pursuant to Rule 144
promulgated pursuant to the Securities Act) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable
for such securities without the prior written consent of the Company or the
managing underwriter for such period of time (not to exceed the period
beginning seven days prior to and during the 180-day period beginning on
the effective date of the registration statement of the IPO) (except for
sales of (i) securities as part of such IPO, (ii) securities purchased in
the IPO or (iii) securities purchased on the open market after the IPO and
as otherwise permitted under Rule 144(k)), unless the underwriters managing
the IPO otherwise agree; provided that all officers and directors of the
Company and, the holders of at least one percent (1%) of the Company's
capital stock enter into similar agreements; further, provided, that the
Company and the managing underwriter shall agree not to release any of
those other persons from the lock-up prior to the release of all of the
Investors and Biotech.
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(b) The Company agrees not to effect any public sale or distribution
of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days
prior to and during the 180-day period beginning on the effective date of
any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or Form
S-4 or any successor form), unless the underwriters managing the registered
public offering otherwise agree.
5. Registration Procedures. Whenever the Holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will expeditiously as
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 remain effective until
the earlier of (i) the date when all Registrable Securities covered by the
registration statement have been sold, or (ii) 180 days from the effective
date of the registration statement; provided, however, that such 180-day
period shall be extended for a period of time equal to the period the
holder refrains from selling any securities included in such registration
at the request of the Company or an underwriter of any securities of the
Company pursuant to Section 5(e); provided, further, that before filing a
registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the counsel selected by the Holders of
a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed including
documents that are to be incorporated by reference into such registration
statement or supplement, which documents will be subject to the review of
such counsel, and which proposed registration statement or amendment or
supplement thereto shall not be filed by the Company if the Holders of a
majority of the Registrable Securities covered by such statement, amendment
or supplement reasonably object to such filing;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to make and to keep such registration statement
effective for the period referred to in SECTION 5(a) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(c) Furnish to each Holder of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including
each preliminary prospectus) and any other documents as such Holder may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder;
(d) Use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as may be reasonably
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necessary and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such Holder;
(e) Promptly notify each Holder of such Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such Holder,
the Company will promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading; provided that, at the request of the
Company or the underwriter, each Holder shall refrain from selling
securities included in such registration until notified by the Company or
the underwriter that such prospectus has been supplemented or amended and
no longer contains an untrue statement of material fact nor omits any fact
necessary to make the statements therein not misleading;
(f) Promptly notify the Holders of Registrable Securities and the
underwriters of the following events: (i) the filing of the prospectus or
any prospectus supplement and the registration statement and any amendment
or post-effective amendment thereto and, with respect to the registration
statement or any post-effective amendment thereto, the declaration of the
effectiveness of such documents; (ii) any requests by the SEC for
amendments or supplements to the registration statement or the prospectus
or for additional information; (iii) the issuance or threat of issuance by
the SEC of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; and (iv)
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threat of initiation of any
proceeding for such purpose;
(g) Cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system, use
its best efforts to secure designation of all such Registrable Securities
covered by such registration statement as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 under the Exchange Act,
failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with respect to
such Registrable Securities with the NASD;
(h) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(i) Enter into any customary agreements (including, without
limitation, underwriting agreements in customary form), and take all other
actions as the Holders of a majority of the Registrable Securities being
sold or the underwriters reasonably request
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in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
(j) Make available for inspection to any Holder of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such Holder or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
Holder, underwriter, attorney, accountant or agent in connection with such
registration statement, provided that, each such Holder or underwriter,
shall, upon the reasonable request of the Company, execute and deliver to
the Company a confidentiality and nondisclosure agreement relating to such
information, provided that such agreement shall contain such reasonable
terms and conditions relating to confidentiality and nondisclosure matters
mutually agreeable to such Holder or underwriter and the Company;
(k) Otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period
of at least twelve (12) months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) Permit any Holder of Registrable Securities to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which
in the reasonable judgment of such Holder and its counsel should be
included;
(m) Make every reasonable effort to prevent the entry of any order
suspending the effectiveness of the registration statement and, in the
event of the issuance of any such stop order, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any security included in such registration statement for
sale in any jurisdiction, the Company will use its best efforts promptly to
obtain the withdrawal of such order;
(n) Use its best efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the Holders thereof to consummate the disposition of such Registrable
Securities;
(o) Cooperate with the selling Holders of Registrable Securities and
the underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing
any restrictive legends, and enable such Registrable Securities to be in
such lots and registered in such names as the underwriters may request at
least two business days prior to any delivery of Registrable Securities to
the underwriters;
11
12
(p) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement;
(q) Prior to the effectiveness of the registration statement and any
post-effective amendment thereto and at each closing of an underwritten
offering, obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Registrable Securities and the underwriters, such letters to be
in customary form and covering matters of the type customarily covered in
"cold comfort" letters by underwriters in connection with primary
underwritten offerings; and
(r) Take all such other actions either necessary or appropriate to
permit the Registrable Securities of a Holder to be registered and disposed
of in accordance with the method of disposition described herein.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of counsel for the Company, fees and
disbursements of one counsel selected by the participating Holders of
Investors' Shares in an amount not to exceed Twenty Thousand Dollars
($20,000) for a Long-Form Demand Registration and Fifteen Thousand Dollars
($15,000) for each Short-Form Demand Registration and Piggyback
Registration, and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other persons
retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES"), will be borne by the Company and the Company will
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense
of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system.
(b) To the extent Registration Expenses are not required to be paid by
the Company, each Holder of securities included in any registration
hereunder will pay those expenses (including discounts and commissions)
allocable to the registration of such Holder's securities so included, and
any expenses (including discounts and commissions) not so allocable will be
borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so
registered.
7. Indemnification.
(a) The Company agrees to indemnify to the extent permitted by law,
each Holder of Registrable Securities, its officers, directors and
partners, as the case may be, and each person who controls such Holder
(within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses caused by any untrue or
12
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allegedly untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such Holder
expressly for use therein or by such Holder's failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such Holder with a sufficient
number of copies of the same. In connection with an underwritten offering,
the Company will indemnify such underwriters, their officers, directors and
partners, as the case may be, and each person who controls such
underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holders of
Registrable Securities.
(b) In connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish to
the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will,
severally and not jointly, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, its directors and
officers and each person who controls the Company (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or allegedly untrue statement of
material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto, or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in
any information so furnished in writing by such Holder; provided, that the
obligation to indemnify will be individual to each Holder and will be
limited to the net amount of proceeds received by such Holder from the sale
of Registrable Securities pursuant to such registration statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
party and the indemnifying party may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed by the indemnifying party, the indemnified party will not be
subject to any liability for any settlement made by the indemnifying party
without its consent (but such consent will not be unreasonably withheld);
provided, however, that any consent to entry of any judgment or entry into
any settlement must include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a full release from
all liability in respect to such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel
for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any
13
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other of such indemnified parties with respect to such claim. The failure
of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Section 7
unless the failure to give such notice is materially prejudicial to an
indemnifying party's ability to defend such action, and then in such case,
it shall be relieved only to the extent of such material prejudice.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of
securities, the completion of any offering of Registrable Securities in a
registration statement and the termination of this Agreement. The Company
also agrees to make such provisions, as are reasonably requested by an
indemnified party, for contribution to such party in the event the
Company's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No person may participate
in any registration hereunder that is underwritten unless such person (a) agrees
to sell such person's securities on the basis provided in any underwriting
arrangements approved by the person or persons entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
9. Reports Under the Securities Laws. With a view to making available to
the Holders of Registrable Securities the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit such Holder to sell securities of the Company 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 Rule 144 under the Securities Act, at all times
subsequent to ninety (90) days after the effective date of any registration
statement covering an underwritten public offering filed under the
Securities Act by the Company;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act, at any time after it is subject to such registration requirements; and
(c) Furnish to any such Holder so long as such Holder owns any of the
Registrable Securities forthwith upon request a written statement by the
Company that it has complied with the reporting requirements of Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the
Exchange Act 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 so filed by the Company as
may be reasonably requested by any such Holder in availing any such Holder
of any rule or regulation of the SEC permitting the selling of any such
securities without registration.
14
15
10. Certain Limitations in Connection with Future Grants of Registration
Rights. From and after the date of this Agreement, the Company shall not enter
into any agreement with any holder or prospective holder of any securities of
the Company providing for the granting to such holder of registration rights
unless such agreement is approved by the Holders of seventy-five percent (75%)
of the Registrable Securities then outstanding. Notwithstanding the foregoing,
any amendments or agreements that affect the rights of the Class C Preferred or
grant rights which are senior to or pari passu to the rights of the Class C
Preferred must be approved by Holders of at least seventy-five percent (75%) of
the Class C Preferred, and any amendments or agreements that affect the rights
of the Class F Preferred or grant rights which are senior to or pari passu to
the rights of the Class F Preferred must be approved by Holders of at least
seventy-five percent (75%) of the Class F Preferred.
11. Financial Statements; Inspection.
(a) Delivery of Financial Statements. The Company shall deliver to
each Holder of at least 100,000 Class F Investors' Shares (subject to
adjustments for stock splits and the like) (a "Major Class F Holder"):
(i) Monthly Reports. As soon as available and in any event within
thirty (30) days after the end of each of the first eleven (11) months
of each fiscal year of the Company, consolidated balance sheets of the
Company and its subsidiaries as of the end of such months and
consolidated statements of income and cash flows of the Company and
its subsidiaries for such month and for the period commencing at the
beginning of the fiscal year, and ending with the end of such month
setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding fiscal year, and
including comparisons to monthly budgets, all in reasonable detail;
and
(ii) Annual Reports. As soon as available and in any event within
ninety (90) days after the end of each fiscal year of the Company, a
copy of the annual audit report for such year for the Company and its
subsidiaries, including therein consolidated balance sheets of the
Company and its subsidiaries as of the end of such fiscal year and
consolidated statements of income and cash flows of the Company and
its subsidiaries for such fiscal year, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal
year; and
(iii) Budgets. As soon as available after approval by the Board
of Directors, but in any event at least thirty (30) days prior to the
beginning of each fiscal year, a business plan and operating budgets
(prepared on a monthly basis) for the forthcoming fiscal year.
(b) Inspection. The Company shall permit each Major Class F Holder,
with such Holder to pay its own expenses, to visit and inspect the
Company's properties during normal working hours, to examine its books of
account and records and make copies thereof and to discuss the Company's
affairs, finances and accounts with its officers, all at such reasonable
times, and upon reasonable notice, as may be requested by such Holder and
all such queries to be reasonably related to the Holder's investment in the
Company; provided, however, that the Company shall not be obligated
pursuant to
15
16
this Section 11(b) to provide access to any information which it deems in
good faith to be a trade secret or other confidential or proprietary
information.
(c) Termination of Information and Inspection Rights. The rights set
forth in Section 11(a) and (b) shall terminate as to each Holder and be of
no further force or effect when the Company is required to file reports
(and does so) pursuant to Section 13 or 15(d) of the Exchange Act.
12. Transfer of Registration Rights. Provided that the Company is given
written notice by the Holder of Registrable Securities prior to, at the time of
or reasonably soon after such transfer stating the name and address of the
transferee and identifying the securities with respect to which the rights under
this Agreement are being assigned, and provided that to the Company's reasonable
satisfaction, such proposed transferee is not a competitor or potential
competitor of the Company, the rights granted to Holders hereunder may be
transferred to any transferee acquiring, in the aggregate, shares representing
at least 100,000 Shares (subject to adjustments for stock splits and the like).
13. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Holders of Registrable
Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement or which would
materially and adversely affect the marketability of such Registrable
Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares).
(c) Remedies. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law. The parties hereto agree
and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and Holders of at least seventy-five percent
(75%) of the Registrable Securities (excluding all Registrable Securities
held by the Company). Notwithstanding the foregoing, any amendments or
agreements that affect the rights of the Class C Preferred or grant rights
which are senior to or pari passu to the rights of the Class C Preferred
must be approved by Holders of at least seventy-five percent (75%) of
16
17
the Class C Preferred, and any amendments or agreements that affect the
rights of the Class F Preferred or grant rights which are senior to or pari
passu to the rights of the Class F Preferred must be approved by Holders of
at least seventy-five percent (75%) of the Class F Preferred.
(e) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or Holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent Holder of Registrable
Securities.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which constitutes an original and all of which
counterparts taken together shall constitute one and the same Agreement.
(h) Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
part of this Agreement. The use of the word "including" in this Agreement
shall be by way of example rather than limitation.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware.
(j) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, telecopied, sent by nationally
recognized overnight courier (charges prepaid) or mailed by registered or
certified mail (return receipt requested), postage prepaid, to the parties
at the addresses specified in the Class F Stock Purchase Agreement (or at
such other address for a party as shall be specified by like notice).
(k) Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, whether or not
upon any breach or default of the other party, shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be made in writing, shall
be effective only to the extent specifically set forth in such writing and
17
18
comply with Section 13(d) above. All remedies, either under this Agreement,
or by law or otherwise afforded to any Holder, shall be cumulative and not
alternative.
(l) Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof and any other written or oral
agreements between the parties hereto are expressly canceled.
[BALANCE OF PAGE LEFT BLANK INTENTIONALLY]
18
19
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first above written.
ATHERSYS, INC.
By: /s/Gil Van Bokkelen, Ph.D.
----------------------------------
Name: Gil Van Bokkelen, Ph.D.
Title: President and Chief Executive
Officer
[STOCKHOLDER SIGNATURES BEGIN ON FOLLOWING PAGE]
19
20
PRESIDENT LIFE SCIENCES CO., LTD. ELWIN W. ANDERSON AND BETTY
LOU ANDERSON JTWROS
By: /s/ Por-Hsiung Lai /s/ Elwin W. Anderson
------------------------------ ----------------------------
Por-Hsiung Lai Elwin W. Anderson
President
/s/ Betty Lou Anderson
----------------------------
Betty Lou Anderson
ALGODON 453, INC. ATHERSYS INVESTORS LLC
By: /s/ Bill Ring By: /s/ Jud Martin
------------------------------ ----------------------------
Bill Ring Dr. Jud Martin
President Manager
ATHERSYS INVESTORS II, L.L.C. ATHERSYS INVESTORS III, L.L.C.
By: /s/ Jud Martin By: /s/ Jud Martin
------------------------------ ----------------------------
Dr. Jud Martin Dr. Jud Martin
Manager Manager
- --------------------------------------------------------------------------------
8
21
B&N INVESTMENTS BAIE FINE, L.L.C.
By:/s/ Robert Betcher By: /s/ Robert S. Jackson
------------------------------ ----------------------------
Robert Betcher Robert S. Jackson
Partner Title:Manager
By:/s/ Nancy Betcher
------------------------------
Nancy Betcher
Partner
BEN NICKMAN ATHERSYS BIOTECH 3 INVESTMENT L.L.C.
PARTNERS, L.P. By: BVF Partners L.P., its Manager
By: BVF Inc., its general partner
By: /s/ Jennifer Sabelhaus By: /s/ Mark N. Lampert
------------------------------ ----------------------------
Jennifer Sabelhaus Mark N. Lampert
General Partner President
BLUE CHIP CAPITAL FUND II BRIDGEWOOD CAPITAL PARTNERS
LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd.
By: /s/ John C. McIlwraith By: /s/ Michael Weisberg
------------------------------ ----------------------------
John C. McIlwraith Michael Weisberg
Manager General Partner
- --------------------------------------------------------------------------------
22
RICHARD J. BRYSACZ TTEE BRIAN AND SUSAN CARLSON
SHARING PLAN JT/WROS
U/A DTD 01-02-92
By: /s/ Richard J. Brysacz By: /s/ Brian Carlson
------------------------------ ----------------------------
Richard J. Brysacz Brian Carlson
Title: Title:
By: /s/ Susan M. Carlson
----------------------------
Susan Carlson
Title:
CASE WESTERN RESERVE WARBURG DILLON READ LLC
UNIVERSITY
By: /s/ William M. Rose By: /s/ Kipp K. Schrage
------------------------------ ----------------------------
William M. Rose Kipp Schrage
Treasurer Managing Director, Equities
By: /s/ Raymond Yee
----------------------------
Raymond Yee
Executive Director, Equities
CHELSEY CAPITAL CRESTWOOD CAPITAL
INTERNATIONAL LTD.
By: /s/ Stuart Feldman By: /s/ Michael Weisberg
------------------------------ ----------------------------
Mr. Stuart Feldman Michael Weisberg
President General Partner
23
CRESTWOOD CAPITAL PARTNERS CRESTWOOD CAPITAL PARTNERS II
L.P. L.P.
By: /s/ Michael Weisberg By: /s/ Michael Weisberg
------------------------------ -------------------------
Michael Weisberg Michael Weisberg
General Partner General Partner
CURRAN PARTNERS, L.P. DKM REVOCABLE TRUST, UID
OCTOBER 25, 1993
By: /s/ John P. Curran By: /s/ Daniel A. Madison
------------------------------ -------------------------
John P. Curran Daniel A. Madison
General Partner Trustee
DRW VENTURE PARTNERS L.P. THE EBTC FOUNDATION
By: Dain Rauscher Corporation, its general
partner
By: /s/ Mary Zimmer By: /s/ Frank E. Samuel, Jr.
------------------------------ -------------------------
Mary Zimmer Frank E. Samuel, Jr.
Director, DRW Finance & Administration President
EGM MEDICAL TECHNOLOGY FUND, EGM MEDICAL TECHNOLOGY
L.P. OFFSHORE FUND, L.P.
By: Emerging Growth Management Co., its By: Emerging Growth Management
general partner Co., its
general partner
By: /s/ Michael T. Jackson By: /s/ Michael T. Jackson
------------------------------ -------------------------
Michael T. Jackson Michael T. Jackson
General Partner General Partner
24
GALLADIO HOLDING B.V. GERALDINE HEIBEL TRUST
By:/s/ Mark Rosman By: /s/ Richard Heibel
------------------------------ -------------------------
Mark Rosman Richard Heibel
Title: Title:
GENE FUND L.P. GRANT-JESTADT-GRANT, L.L.C.
By: By: /s/ Tim Grant
------------------------------ -------------------------
Wei-Wu He Timothy L. Grant
Title: Member
HARPEL VENTURE PARTNERS EDWARD L. HENDERSHOT CHARLES
SCHWAB & CO., INC. CUST. IRA
ROLLOVER
By: /s/ James W. Harpel
-----------------------------
James W. Harpel
General Partner By: /s/ Edward Hendershot
-------------------------
Edward L. Hendershot
Title:
RUTH M. HENDERSHOT TTEE, HOEGH INVEST, AS
THE RUTH M. HENDERSHOT
TRUST U/A DTD APRIL 22, 1993
By: /s/ Carl Preben Hoegh
-------------------------
Carl Preben Hoegh
By: /s/ Ruth M. Hendershot Chairman
------------------------------
Ruth M. Hendershot
Trustee
25
ING BARINGS, LLC INVESCO GLOBAL HEALTH
SCIENCES FUND
By: /s/ H. Gill Sawhney
-------------------------------
H. Gill Sawhney By: /s/ Glen A. Payne
Managing Director -------------------------
Name: Glen A. Payne
Title: Secretary
KBC EQUITY FUNDS KOONS OF ALEXANDRIA, LLC
BIOTECHNOLOGY
By: /s/ Youri Amerijckx
-------------------------------
/s/ Ignace Van Oortegem By: /s/ Michael L. Field
-------------------------------- --------------------------
Youri Amerijckx Michael L. Field
Equity Fund Manager President
MANSCHOT OPPORTUNITY FUND, MEDICAL VENTURE MANAGEMENT
L.P.
By: Manschot Investor Group LLC, its
General Partner By: /s/ Fredrik C. Schreuder
--------------------------
Name: Fredrik C. Schreuder
Title: President
By: /s/ Tom P. Chapman III
-------------------------------
Tom P. Chapman III
Title: Authorized Representative
MCP GLOBAL CORPORATION, LTD. MGT CORPORATION
By: /s/ Mia N. Pogue By: /s/ Thomas M. Ehlers
-------------------------------- --------------------------
Mai N. Pogue Thomas M. Ehlers
Director Title: President
26
MIAMI VALLEY VENTURE FUND L.P. MICHAEL LEE FIELD CHARLES
By: Blue Chip Venture Company of Dayton, SCHWAB & CO., INC. CUST. IRA
Ltd. ROLLOVER
By: /s/ John C. McIlwraith By: /s/ Michael L. Field
-------------------------------- --------------------------
John C. McIlwraith Michael L. Field
Manager Title:
MICHAEL T. JACKSON TRUST NEOMED INNOVATION, ASA
By: /s/ Michael T. Jackson By:/s/ Carl Christian Gilhuus-Moe
-------------------------------- ---------------------------
Michael T. Jackson Carl Christian Gilhuus-Moe
Trustee General Partner
By:/s/ Erik Amble
---------------------------
Erik Amble
General Partner
ODIN PARTNERS, L.P. OHIO INNOVATION FUND I, L.P.
By: /s/ John A. Gibbons By: /s/ Timothy G. Biro
-------------------------------- --------------------------
John Gibbons Timothy G. Biro
Managing Partner Managing Partner
27
PALMETTO PARTNERS, LTD. DONALD L. AND CAROL A. POE
By: Palmetto Capital Corporation, its JNT TEN
managing general partner
By: /s/ James M. Kendrigan /s/ Donald L. Poe
-------------------------------- --------------------------
James M. Kendrigan Donald L. Poe
Vice President and Managing Director
/s/ Carol A. Poe
--------------------------
Carol A. Poe
PRIMUS CAPITAL FUND IV LIMITED PRIMUS EXECUTIVE FUND LIMITED
PARTNERSHIP PARTNERSHIP
By: Primus Venture Partners IV Limited By: Primus Venture Partners IV Limited
Partnership, its general partner Partnership, its general partner
By: Primus Venture Partners IV, Inc., its By: Primus Venture Partners IV, Inc., its
general partner general partner
By: /s/ William C. Mulligan By: /s/ William C. Mulligan
-------------------------------- --------------------------
William C. Mulligan William C. Mulligan
Executive Vice President Executive Vice President
R&P FAMILY LIMITED RICHARD B. SANDERS AND MARY L.
PARTNERSHIP SANDERS JT TEN
By: /s/ Ronald J. Shimek /s/ Richard B. Sanders
-------------------------------- --------------------------
Ron Shimek Richard B. Sanders
Title:
/s/ Mary L. Sanders
--------------------
Mary L. Sanders
28
SENTRON MEDICAL INC. SUSAN NOONAN AND ANTHONY J.
RUSSO, TENANTS-IN-COMMON
By: /s/ Clint Dederick /s/ Susan Noonan
-------------------------------- --------------------------
Clint Dederick Susan Noonan
Group Director, Venture Projects
/s/ Anthony J. Russo
--------------------------
Anthony J. Russo
TALMOR CAPITAL MANAGEMENT, TRIVENTURES
L.L.C.
By: /s/ Edmund H. Melhado By: /s/ Jim Lustig
-------------------------------- --------------------------
Edmund H. Melhado Jim Lustig
Portfolio Manager Partner
VAN WAGONER FUNDS VAN WAGONER CAPITAL PARTNERS,
By: Van Wagoner Capital Management, its L.P.
general partner By: Van Wagoner Capital Management, its
general partner
By: /s/ Audrey Lam By: /s/ Audrey Lam
-------------------------------- --------------------------
Audrey Lam Audrey Lam
Managing Director Managing Director
29
VAN WAGONER CROSSOVER FUND, WILLIAM H. ROLFERT
L.P. CHARLES SCHWAB & CO., INC.
By: Van Wagoner Capital Management, its CUST. IRA CONTRIBUTION
general partner
By: /s/ Audrey Lam By: /s/ William H. Rolfert
-------------------------------- --------------------------
Audrey Lam William H. Rolfert
Managing Director Title:
MICHAEL ARBAUGH AND KAREN INVESCO HEALTH SCIENCES FUND
LOPRESTO, AS JOINT TENANTS
By:/s/ Glen A. Payne
---------------------------
By: /s/ Michael Arbaugh /s/ Karen LoPresto Name: Glen A. Payne
---------------------------------------- Title:
Name:
Title:
/s/ John W. Allison /s/ Jonas Alsenas
- ------------------------------- ------------------------------
John W. Allison Jonas Alsenas
/s/ Linda Kiss Baker /s/ Emily H. Brasfield
- ------------------------------- ------------------------------
Linda Kiss Baker Emily H. Brasfield
/s/ Brian P. Clifford /s/ Ron Cohen
- ------------------------------- ------------------------------
Brian P. Clifford Ron Cohen
/s/ Robert N. Comstock /s/ Timothy E. Davis, Jr.
- ------------------------------- ------------------------------
Robert N. Comstock Timothy Edward Davis, Jr.
30
/s/ Michel Desbard /s/ Daniel V. Drake
- ------------------------------- ------------------------------
Michel Desbard Daniel V. Drake
/s/ John Harrington /s/ Paul Kelly
- ------------------------------- ------------------------------
John J. Harrington Paul Kelly
/s/ Tinka Kurth /s/ Robert W. Mays
- ------------------------------- ------------------------------
Tinka Kurth Robert Mays
/s/ Edward F. McManus /s/ Ira Mellman
- ------------------------------- ------------------------------
Edward F. McManus Dr. Ira Mellman
/s/ Richard K. Nason /s/ Samuel E. Navarro
- ------------------------------- ------------------------------
Richard Nason Samuel E. Navarro
/s/ James Nelson /s/ Kevin O'Connell
- ------------------------------- ------------------------------
Dr. James Nelson Kevin O'Connell
/s/ Brian O'Connor /s/ Marc A. Pentopoulos
- ------------------------------- ------------------------------
Brian O'Connor Marc A. Pentopoulos
/s/ Robert Perry /s/ Barclay Phillips
- ------------------------------- ------------------------------
Robert Perry Barclay A. Phillips
/s/ H. Gill Sawhney /s/ Dr. Leon Smith
- ------------------------------- ------------------------------
H. Gill Sawhney Dr. Leon Smith
31
/s/ Lloyd E. Smith /s/ Gil Van Bokkelen
- ------------------------------- ------------------------------
Lloyd E. Smith Gil Van Bokkelen
/s/ John R. Van Bokkelen /s/ William Van Bokkelen
- ------------------------------- ------------------------------
John R. Van Bokkelen William Van Bokkelen
/s/ Arthur C.A. van der Goes /s/ Joe Vona
- ------------------------------- ------------------------------
Arthur C.A. van der Goes Joe Vona
/s/ Laurie M. Wade /s/ David Wendel
- ------------------------------- ------------------------------
Laurie M. Wade David I. Wendel
/s/ Huntington Willard /s/ Raymond Yee
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Dr. Huntington Willard Raymond Yee