EXHIBIT 4.2
SENSUS DRUG DEVELOPMENT CORPORATION
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
TABLE OF CONTENTS
PAGE
Section 1. General......................................... 1
1.1 Definitions..................................... 1
Section 2. Registration; Restrictions on Transfer.......... 3
2.1 Restrictions on Transfer........................ 3
2.2 Demand Registration............................. 4
2.3 Piggyback Registrations......................... 5
2.4 Form S-3 Registration........................... 6
2.5 Expenses of Registration........................ 8
2.6 Obligations of the Company...................... 8
2.7 Expiration 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.... 14
2.13 "Market Stand-Off" Agreement.................... 14
2.14 Rule 144 Reporting.............................. 14
Section 3. Covenants of the Company........................ 15
3.1 Basic Financial Information and Reporting....... 15
3.2 Reservation of Common Stock..................... 15
3.3 Termination of Covenants........................ 15
Section 4. Rights of First Refusal......................... 15
4.1 Subsequent Offerings............................ 15
4.2 Exercise of Rights.............................. 16
4.3 Issuance of Equity Securities to Other Persons.. 16
4.4 Termination of Rights of First Refusal.......... 16
4.5 Transfer of Rights of First Refusal............. 16
4.6 Excluded Securities............................. 16
Section 5. Miscellaneous................................... 17
5.1 Governing Law................................... 17
5.2 Survival........................................ 17
5.3 Successors and Assigns.......................... 18
5.4 Entire Agreement................................ 18
5.5 Severability.................................... 18
5.6 Amendment and Waiver............................ 18
5.7 Delays or Omissions............................. 18
5.8 Notices......................................... 19
5.9 Attorneys' Fees................................. 19
5.10 Titles and Subtitles............................ 19
5.11 Counterparts.................................... 19
i.
SENSUS DRUG DEVELOPMENT CORPORATION
AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the "Agreement") is
entered into as of the 10th day of October 1997, by and among SENSUS DRUG
DEVELOPMENT CORPORATION, a Delaware corporation (the "Company"), and the
purchasers of the Company's capital stock set forth on Exhibit A hereto
(referred to hereinafter as the "Investors" and each individually as an
"Investor").
RECITALS
WHEREAS, the Company and the purchasers of the Company's Series A Preferred
Stock and Series B Preferred Stock have previously entered into that certain
Amended and Restated Investor Rights Agreement dated as of March 20, 1997 (the
"Prior Agreement"), which provides for, among other things, the grant of certain
registration rights and a right of first refusal to such purchasers;
WHEREAS, concurrently herewith the Company is selling shares of Series C
Preferred Stock to the purchasers set forth on Exhibit A hereto, and it is a
condition to the sale of such shares that the purchasers of Series C Preferred
Stock be extended the registration rights and right of first refusal provisions
contained herein;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree that all consents or conditions required to be obtained or
satisfied under the Prior Agreement are hereby given and that the Prior
Agreement is amended and restated to read in full 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.
"HOLDER" means any person owning of record Registrable Securities or
any assignee of record of such Registrable Securities in accordance with Section
2.10 hereof.
"INITIAL OFFERING" means the Company's first underwritten public
offering of its common stock, $.001 par value ("Common Stock"), registered under
the Securities Act.
1.
"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 (i) Common Stock of the Company issued
or issuable upon conversion of the Shares; and (ii) any 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 Rule 144 or sold in a private transaction in which the
transferror'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 (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incident to the
Company's performance of or compliance 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 (not to exceed Twenty Thousand Dollars ($20,000) with respect to a
registration effected pursuant to Section 2.3 and Fifteen Thousand Dollars
($15,000) with respect to a registration effected pursuant to Section 2.2 or
2.4) of a single special counsel for the Holders, blue sky fees and expenses,
the expense of any special audits incident to or required by any such
registration and fees and expenses payable to a Qualified Independent
Underwriter (as such term is defined in Schedule E to the National Association
of Securities Dealers, Inc.'s By-Laws).
"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 (i) the Company's Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock held by the Investors listed on
Exhibit A hereto and their permitted assigns and (ii) the Warrant to Purchase
Shares of Series C Preferred Stock issued to Montgomery Securities on October
10, 1997.
"FORM S-3" means such form under the Securities Act as in effect on
the date hereof or any successor 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.
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
2.
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
(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.
(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, or (D) 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 or as
provided elsewhere in this Agreement):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (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 REASONABLY 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
3.
registration, qualification or legend; provided, that the Company will not
require opinions of counsel for transactions made pursuant to Rule 144.
(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.
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 (the "Initiating Holders") that
the Company file a registration statement under the Securities Act covering more
than forty-two percent (42%) of the Registrable Securities then outstanding, or
any lesser percentage if the aggregate offering price to the public would exceed
$5,000,000 (a "Qualified Public Offering"), 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 all
reasonable efforts to cause the prompt 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 (unless otherwise mutually agreed by
a majority in interest of the Holders participating in such registration) 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 Holders participating in such
registration (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 the number of
securities requested to be included in the offering exceeds the largest number
of securities that can be sold in such offering within a price range acceptable
to a majority of the Holders participating in such registration 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, first, 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) and, second, to the
Company. 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:
4.
(I) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective; or
(II) prior to the Initial Offering or 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; or
(III) 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 stockholders 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. If the Company
shall give any notice of postponement of a registration statement pursuant to
this Section 2.2(c)(iii), the Company shall, at such time as the reason that
caused such withdrawal or postponement no longer exists (but in no event later
than the time period specified in the first clause of this Section 2.2(c)(iii)),
use its best efforts to effect the registration under the Securities Act of the
Registrable Securities covered by the postponed registration statement in
accordance with this Section 2.2 (unless the Holders initiating such
registration shall have withdrawn such request, in which case the Company shall
not be considered to have effected an effective registration for the purposes of
this Section 2.2).
(D) A registration requested pursuant to this Section 2.2 shall not
be deemed to have been effected (i) unless a registration statement with respect
thereto has become effective and has been kept continuously effective for a
period of at least 90 days (or such shorter period which shall terminate when
all the Registrable Securities covered by such registration statement have been
sold pursuant thereto), (ii) if, after it has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason not attributable to the Holders participating in such registration and
has not thereafter become effective, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason or an act or
failure to act on the part of the Holders participating in such registration.
2.3 PIGGYBACK REGISTRATIONS. If the Company proposes to file a
registration statement relating to the offering of any of its capital stock
under the Securities Act (other than (i) a registration statement required to be
filed in respect of employee benefit plans of the Company on Form S-8 or any
similar form from time to time in effect, or (ii) any registration statement
relating to a corporate reorganization or other transaction under Rule 145)
whether or not for its own account, the Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to such filing
and will afford each such Holder an opportunity to include in such registration
statement all or part of the 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 twenty (20) days after the
above-described
5.
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 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 shareholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall reduce the amount of securities of the selling
Holders included in the registration below twenty-five percent (25%) of the
total amount of securities included in such registration, unless such offering
is the Initial Offering, in which event any or all of the Registrable Securities
of the Holders may be excluded in accordance with the immediately preceding
sentence. In no event will shares of any other selling shareholder be included
in such registration which would reduce the number of shares which may be
included by Holders without the written consent of Holders of not less than a
majority of the Registrable Securities proposed to be sold in the offering.
(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 of Registrable Securities a written request or requests that
the Company effect a registration on 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 of Registrable
Securities; and
6.
(B) as soon as practicable, effect such registration (including, if
requested, a registration of Registrable Securities which are intended to be
offered on a continuous or delayed basis under Rule 415 of the Securities Act,
such registration a "Shelf 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 (or any successor or similar form) 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 $1,000,000, or
(III) 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 stockholders 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. If the Company shall give any notice of postponement of a
registration statement pursuant to this Section 2.4(b)(iii), the Company shall,
at such time as the reason that caused such withdrawal or postponement no longer
exists (but in no event later than the time period specified in the first clause
of this Section 2.4(b)(iii)), use its best efforts to effect the registration
under the Securities Act of the Registrable Securities covered by the postponed
registration statement in accordance with this Section 2.4 (unless the Holders
initiating such registration shall have withdrawn such request, in which case
the Company shall not be considered to have effected an effective registration
for the purposes of this Section 2.4), or
(IV) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for the Holders pursuant to this Section 2.4, 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 as soon as practicable after receipt of the
request or requests of the Holders. All such
7.
Registration Expenses incurred in connection with a registration requested
pursuant to this Section 2.4 after the first four (4) registrations shall be
paid by the selling Holders pro rata in proportion to the number of shares sold
by each.
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 a majority in
interest of the Holders participating in such registration unless (a) the
withdrawal is based upon material adverse information concerning the Company of
which a majority in interest of the Holders participating in such registration
were not aware at the time of such request, (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, (c) the withdrawal is based
upon the Company's material breach of its obligations under this Agreement, (d)
the withdrawal is based upon the failure of the registration statement to be
declared effective within 90 days following the Company's receipt of a request
for registration under Section 2.2 or 2.4 or (e) the withdrawal is based upon
the Company's invocation of Section 2.2(c)(iii) or 2.4(b)(iii). 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 registration was
requested. 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.
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) (I) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective and to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act)
for a period of one hundred twenty (120) days or until the Holder or Holders
have completed the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that such 120-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 an
underwriter of Common Stock (or other securities) of the Company; or
(II) in the case of any Shelf Registration, prepare and
file with the SEC a Shelf Registration statement with respect to such
Registrable Securities and use all reasonable efforts to cause such registration
statement to become effective and to remain continuously effective in order to
permit the prospectus forming part thereof to be usable by Holders for a period
of two (2) years from the date such registration statement is declared
8.
effective or such shorter period of time that will terminate upon the earlier of
the following: (A) when all the Registrable Securities covered by the Shelf
Registration statement have been sold pursuant to such registration statement
and (B) when there cease to be any outstanding Registrable Securities; provided,
however, that following the effectiveness of any Shelf Registration statement,
the Company, may, at any time, suspend the effectiveness of such registration
statement for up to ninety (90) days in any twelve-month period (a "Suspension
Period"), by giving notice to the Holders participating in such registration, if
the Company shall have, in good faith, determined that the Company may be
required to disclose any material corporate development which disclosure may
have a material effect on the Company and the Holders agree that, upon receipt
of any notice from the Company of a Suspension Period, the Holders shall
forthwith discontinue disposition of shares covered by such registration
statement until Holders (A) are advised in writing by the Company that the use
of the applicable prospectus may be resumed, (B) have received copies of a
supplemental or amended prospectus, if applicable or (C) have received copies of
any additional supplemental filings which are incorporated or deemed to be
incorporated by reference in such prospectus. Upon termination of any such
Suspension Period, the Company shall use all reasonable efforts to cause such
registration statement to remain continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders for the remaining
portion of the period described above.
(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.
(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.
9.
(G) Furnish, at the request of a majority of the Holders participating
in the registration, on the date that such Registrable Securities are delivered
to the underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statement with respect to such securities becomes
effective, (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 in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and 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 and reasonably
satisfactory to a majority in interest of the Holders requesting registration,
addressed to the underwriters, if any, and if permitted by applicable accounting
standards, to the Holders requesting registration of Registrable Securities.
2.7 EXPIRATION OF REGISTRATION RIGHTS. A Holder's registration rights
shall expire if all of the following conditions are fulfilled: (i) the Company
has completed its Initial Offering and is subject to the provisions of the
Exchange Act, (ii) such Holder (together with its affiliates) holds less than 1%
of the Company's Common Stock (treating all shares of convertible Preferred
Stock on an as-converted basis) and (iii) all Registrable Securities held by and
issuable to such Holder (and its affiliates, partners and former partners) may
be sold under Rule 144 during any ninety (90) day period.
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 registration contemplated by this Section
2 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 with respect to
any selling Holder that the selling Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of such securities as shall be required to effect
the registration of its 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.
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 and the affiliates of each Holder and their respective
directors, officers, employees, general and limited partners, members, agents,
representatives, legal counsel, and any underwriter (as defined in the
Securities Act) and the directors, officers, affiliates and controlling persons
thereof and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act (collectively the
"Indemnified Persons"), 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 registration
of Holder's Registrable Securities; and the Company will reimburse each
Indemnified 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 hereunder 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, underwriter or
controlling person of such Holder. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Indemnified Party and shall survive the transfer of such securities by such
Holder. Each Indemnified Party shall furnish such information regarding itself
or the claim in question as the Company may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(B) To the extent permitted by law, each Holder 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 legal counsel 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 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
11.
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 reimburse 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 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 gross proceeds from the offering received by such Holder; and,
provided, however, that the obligation to provide indemnification pursuant to
this Section 2.9(b) shall be several and not joint and several among such
indemnifying parties.
(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 or if the indemnifying
party fails to take reasonable steps necessary to defend diligently the action
or proceeding within a reasonable period after receiving notice from such
indemnified party that the indemnified party believes it has failed to do so.
The failure to deliver written notice to the indemnifying party within a
reasonable time after the indemnified party first learns of the commencement of
any such action shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.9 to the extent it is materially
prejudiced to its ability to defend such action, 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
12.
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 (including any
indemnification payment made by such Holder pursuant to Section 2.9) exceed the
gross proceeds from the offering received by such Holder.
(E) The foregoing indemnity agreements of the Company and the Holders
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "Final Prospectus"), such indemnity agreements shall not inure to
the benefit of any person if a copy of the Final Prospectus was furnished to the
indemnified party and the indemnified party was required by the Securities Act
to furnish, and did not furnish, the Final Prospectus to the person asserting
the loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act.
(F) 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 or which includes a
statement as to an admission of fault, culpability or a failure to act, by or on
behalf of such Indemnified Party.
(G) The indemnity agreements contained herein shall be in addition to
any other rights to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain operative and in full
force and effect regardless of any investigation made or omitted by or on behalf
of any indemnified party and shall survive any transfer of the Registrable
Securities by any such party made in accordance with the terms hereof.
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 (i) is a
subsidiary, parent, general partner, limited partner or retired partner of a
Holder, (ii) is a Holder's family member or trust for the benefit of an
individual Holder, or (iii) acquires at least fifty-seven thousand one hundred
forty-three (57,143) shares of Registrable Securities (as adjusted for stock
splits and combinations); provided, however, (A) the transferor shall, within
twenty (20) 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 (B) 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
13.
Holders of at least a majority 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 Article II, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of 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 senior to those granted
to the Holders hereunder.
2.13 "MARKET STAND-OFF" AGREEMENT. Unless the prior written consent of the
underwriters is obtained, each Holder hereby agrees that such Holder shall not
sell or otherwise transfer or dispose of 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 all officers and
directors of the Company and each holder of at least one percent (1%) of the
Company's voting securities enters into similar agreements.
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. 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.
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;
(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
14.
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) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, the Company will furnish
each Investor a consolidated balance sheet of the Company, as at the end of such
fiscal year, and a consolidated statement of income and a consolidated 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 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 forty-five (45) days
thereafter, a consolidated balance sheet of the Company as of the end of each
such quarterly period, and a consolidated statement of income and a consolidated
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.
3.2 RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Shares, all Common Stock issuable from time to time upon such conversion.
3.3 TERMINATION OF COVENANTS. All covenants of the Company contained in
Section 3 of this Agreement shall expire and terminate as to each Investor on
the effective date of the registration statement pertaining to the Initial
Offering.
SECTION 4. RIGHTS OF FIRST REFUSAL.
4.1 SUBSEQUENT OFFERINGS. So long as an Investor (with its affiliates)
shall own not less than three hundred thousand (300,000) shares of Registrable
Securities (as adjusted for stock
15.
splits and combinations (a "Major Investor"), each Major 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 Major 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 equity security of the Company, (ii) any security
convertible, with or without consideration, into any Common Stock, Preferred
Stock or other equity 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 equity
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 Major 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 Major Investor shall have
fifteen (15) 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 if such offer or sale would cause
the Company to be in violation of applicable federal securities laws.
4.3 ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If any Major Investor
fails to exercise in full its rights of first refusal, the Company shall have
one hundred twenty (120) days thereafter to sell the Equity Securities in
respect of which such Major Investor's rights were not exercised, at a price and
upon general terms and conditions materially no more favorable to the purchasers
thereof than specified in the Company's notice to the Major Investors pursuant
to Section 4.2 hereof. If the Company has not sold such Equity Securities
within such one hundred twenty (120) days, the Company shall not thereafter
issue or sell any Equity Securities, without first offering such securities to
the Major Investors in the manner provided above.
4.4 TERMINATION 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 Initial
Offering.
4.5 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first refusal of
each Major Investor under this Section 4 may be transferred, 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:
16.
(A) shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or other rights)
issued or to be issued 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 a majority of the Board
of Directors;
(B) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination, including without limitation, an acquisition whether pursuant to a
preexisting option or otherwise, of the stock or assets of a special purpose
corporation, research and development partnership or similar entity;
(C) any Equity Securities that are issued by the Company as part of an
underwritten public offering;
(D) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(E) shares of Common Stock issued upon conversion of the Shares or
upon conversion or exercise of other convertible securities, options or warrants
of the Company; and
(F) any Equity Securities issued pursuant to corporate partnering
transactions, off balance sheet financing transactions (such as "SWORD" or
Research & Development partnership transactions), commercial lending
transactions or lease financings;
provided, however, that if the aggregate number of Equity Securities issued
pursuant to Section 4.6(f) shall exceed, on a cumulative basis, ten percent
(10%) of the fully-diluted outstanding shares of the Company's capital stock
(calculated at the time of issuance), the provisions of Sections 4.1, 4.2 and
4.3 shall apply subject to the following conditions:
(I) if the Company proposes to issue Equity Securities in
conjunction with the equity securities of another entity ("Joint Equity
Securities"), each Major Investor shall have the right to purchase its pro rata
share of Joint Equity Securities as defined in Section 4.1 above only to the
extent that such participation by the Major Investor will not result in a loss
of desired accounting treatment for the Company; and
(II) if the Joint Equity Securities are issued as units, in
exercising its right of first refusal, each Major Investor must purchase the
full unit, even if the component equity securities of such unit may be
transferred separately.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to the conflict law rules
thereof.
5.2 SURVIVAL. Notwithstanding any investigation conducted by or on
behalf of any party hereto, each representation and warranty in this Agreement
and each agreement or
17.
covenant in this Agreement which does not by its own terms expire on or prior to
the Closing shall survive the Closing without limitations as to time, except as
specifically referred to herein. 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 and any Exhibits and Schedules
attached hereto constitute the full and entire understanding and agreement and
supersedes all of the prior agreements and undertakings, both written and oral,
among the parties, or any of them with respect to the subject matter hereof.
5.5 SEVERABILITY. If any provision or any portion of any provision of
this Agreement or the application of any such provision or any portion thereof
to any person or circumstance, shall be held invalid, illegal, or unenforceable,
to the extent permitted by law, the remaining portion of such provision and the
remaining provisions of this Agreement shall not in any way be affected or
impaired.
5.6 AMENDMENT AND WAIVER.
(A) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the prior written consent of the Company and the
holders of at least a majority 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
upon the prior written consent of the holders of at least a majority of the
Registrable Securities.
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
18.
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: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written 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 dispute among the parties to
this Agreement should result in litigation, 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.
5.11 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.
19.
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:
SENSUS DRUG DEVELOPMENT CORPORATION
By:___________________________
John A. Scarlett, Ph.D.
President and Chief Executive Officer
INVESTOR:
By:___________________________
(Signature)
Name:_________________________
(Print)
Title:________________________
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EXHIBIT A
SCHEDULE OF INVESTORS
INVESTOR NUMBER OF SHARES
- -------- ----------------
PURCHASERS OF SERIES A PREFERRED STOCK:
William F. Bennett and Charis A. Bennett 57,143
4011 Westlake Drive
Austin, TX 78746
Mr. Robert Herbert Carter, Jr. 5,800
8112 Flashpan Cove
Austin, TX 78729
Mr. James H. Clardy 5,715
6723 Beauford Drive
Austin, TX 78750
Mr. Terrell A. Cobb 20,000
2036 King Stables Road
Birmingham, AL 35242
Walter A. DeRoeck 671,429
Congress International Inc.
1301 Capital of Texas Hwy South
Suite B-125
Austin, TX 78746
Mr. Craig H. Ensley 5,715
1400 Prestwood Place
Austin, TX 78746
Mr. John Fincher 14,286
2606 Pecos
Austin, TX 78703
Frost National Bank, Trustee for the James A. Cox, Jr. IRA 14,286
No. A0405100, Robert L. Hearn, III
Frost Bank Trust Division
816 Congress Avenue, Suite 400
Austin, TX 78701
Genentech, Inc. 1,658,035
Attn: John Wulf
Bldg 24
460 Point San Bruno Blvd.
South San Francisco, CA 94080
INVESTOR NUMBER OF SHARES
- -------- ----------------
Mrs. Ann S. Goldsmith 10,000
3 Stanford Drive
Rancho Mirage, CA 92270
Mr. Jack Goldsmith 10,000
3 Stanford Drive
Rancho Mirage, CA 92270
John J. Gorman 46,500
1110 Blackacre Trail
Austin, TX 78746
John J. Gorman as the Trustee of the Matthew Gorman Trust 4,900
1110 Blackacre Trail
Austin, TX 78746
John J. Gorman as the Trustee of the Ryleigh Gorman Trust 5,900
1110 Blackacre Trail
Austin, TX 78746
Mr. Stephen J. Hasbrouck 18,900
6319 Stow Road
Hudson, OH 44236
Richard J. Hawkins and Nona F. Niland, Joint Tenants 1,020,002
324 Eanes School Road
Austin, TX 78746
Mr. Richard D. Herrington 28,571
4205 Bennedict Lane
Austin, TX 78746
R. Steven Hicks and Donna Stockton Hicks 57,143
1702 Windsor Road
Austin, TX 78703
Hughes Family Partnership, L.P. 57,143
Attn: J. Laine Holman
600 Congress Ave., Suite 3000
Austin, TX 78701
Mr. Irwin Isroff 28,571
19373 Cedar Glen Drive
Boca Raton, FL 33434
Gerald Jacknow, M.D. and Karen B. Jacknow 57,143
4001 Lakeplace Lane
Austin, TX 78746
INVESTOR NUMBER OF SHARES
- -------- ----------------
Javelin Capital Fund, L.P. 685,714
Attn: Lyle A. Hohnke
1075 13th Street South
Birmingham, AL 35205
LIPP Investments 14,286
Attn: Gary Little
c/o Franco Services
2211 Lake Austin Blvd.,
Austin, TX 78703
Lysander, LLC 171,429
c/o Stuart Davidson
Combion
400 Seaport Court, Suite 250
Redwood City, CA 94063
Gregory S. Marchbanks 57,143
Prime Cable
600 Congress, Suite 3000
Austin, TX 78701
Ernest Mario 171,429
900 University Avenue
Palo Alto, CA 94301
Alan T. Moore 57,142
2420 Harris Blvd.
Austin, TX 78703
Mr. Robert L. Myer 57,143
10222 Pinehurst Drive
Austin, TX 78747
Deborah O'Connell, M.D. 28,572
4109 Lakeplace Lane
Austin, TX 78746
Opus Portfolio, Ltd. 200,000
c/o The George Ventures Group
13407 N.W. Military Hwy.
San Antonio, TX 78231
Paycol & Co. 115,000
Attn: William F. Jones, Manager
c/o Keswick Management, Inc.
1330 Avenue of Americas, 27th Floor
New York, NY 10019
INVESTOR NUMBER OF SHARES
- -------- ----------------
Mr. Dwight Rounds Trustee of the Dwight C. Rounds Trust 14,286
UDT 8-16-85
4311 Dunning Lane
Austin, TX 78746
Rodney James Sands 200,000
3750 N. Pan Am Expwy.
San Antonio, TX 78212
Mr. William Scanlan, Jr. Trustee of the Salome McAllen 57,143
Scanlan Family Trust
c/o William Scanlan, Jr.
300 Convent, Suite 1775
San Antonio, TX 78205
Mr. Baker P.L. Scott, III 20,000
405 Graciosa Cove
Austin, TX 78746
Mr. Jerry Shaw 28,571
4740 S. Ocean Blvd., #1616
Highland Beach, FL 33487
William N.L. Stassen, M.D. 28,571
4109 Lakeplace Lane
Austin, TX 78746
Steven A. Fleckman & Texas Commerce Bank National 11,428
Association, Co-Trustees of The Benjamin Richard Hawkins
1992 Trust
c/o Fleckman & McGlynn
1800 Nationsbank Tower
515 Congress Avenue
Austin, TX 78701-3503
Steven A. Fleckman & Texas Commerce Bank National 11,428
Association, Co-Trustees of The Zachary John Hawkins 1992
Trust
c/o Fleckman & McGlynn
1800 Nationsbank Tower
515 Congress Avenue
Austin, TX 78701-3503
WTFO, Inc. 14,286
Attn: Richard Herrington
4205 Bennedict Lane
Austin, TX 78746
INVESTOR NUMBER OF SHARES
- -------- ----------------
Mr. Karl Joseph Zimmermann 100,000
16018 Fontaine Avenue
Austin, TX 78734
PURCHASERS OF SERIES B PREFERRED STOCK:
The Goldman Sachs Group, L.P. 625,000
85 Broad Street
New York, NY 10004
William F. Bennett and Charis A. Bennett 6,956
4011 Westlake Drive
Austin, TX 78746
Frost National Bank, Trustee for the James A. Cox, Jr. IRA 12,500
No. A0405100, Robert L. Hearn III
Frost Bank Trust Division
816 Congress Avenue, Suite 400
Austin, TX 78701
John Fincher 10,000
2606 Pecos
Austin, TX 78703
Richard D. Herrington 21,429
4205 Bennedict Lane
Austin, TX 78746
Hughes Family Partnership, L.P. 26,500
Attn. J. Laine Holman
600 Congress Ave., Suite 3000
Austin, TX 78701
Gerald Jacknow, M.D. & Karen B. Jacknow 17,857
4001 Lakeplace Lane
Austin, TX 78746
LIPP Investments 5,739
Attn: Gary Little
c/o Franco Services
2211 Lake Austin Blvd.
Austin, TX 78703
Lysander, LLC 50,000
c/o Stuart Davidson
Combion
400 Seaport Court, Suite 250
Redwood City, CA 94063
INVESTOR NUMBER OF SHARES
- -------- ----------------
Gregory S. Marchbanks 25,000
Prime Cable
600 Congress, Suite 3000
Austin, TX 78701
Deborah O'Connell, M.D. 12,500
4109 Lakeplace Lane
Austin, TX 78746
Opus Portfolio, Ltd. 100,000
c/o The George Ventures Group
13407 N.W. Military Hwy.
San Antonio, TX 78231
Paycol & Co. 25,000
Attn: William F. Jones, Manager
c/o Keswick Management, Inc.
1330 Avenue of Americas
27th Floor
New York, NY 10019
Dwight C. Rounds, Trustee of the Dwight C. Rounds Trust 8,000
UDT 8-16-85
4311 Dunning Lane
Austin, TX 78746
Rodney James Sands 100,000
3750 N. Pan Am Expwy.
San Antonio, TX 78212
William Scanlan, Jr. 13,956
Trustee of the Salome McAllen Scanlan Family Trust Salome
300 Convent, Suite 1775
San Antonio, TX 78205
William N.L. Stassen, M.D. 12,500
4109 Lakeplace Lane
Austin, TX 78746
WTFO, Inc. 10,714
Attn: Richard D. Herrington
4205 Bennedict Lane
Austin, TX 78746
INVESTOR NUMBER OF SHARES
- -------- ----------------
PURCHASERS OF SERIES C PREFERRED STOCK
The Goldman Sachs Group, L.P. 566,800
Attn: Robert J. Granovsky
V.P. Equity Derivatives
Goldman Sachs & Co.
One New York Plaza
New York, NY 10004
Robert J. Granovsky 20,000
Goldman Sachs & Co.
One New York Plaza
New York, NY 10004
Javelin Capital Fund 230,000
Attn: Lyle A. Hohnke
OADI Technology Center
2800 Milan Court, Suite 213
Birmingham, AL 35211
Opus Portfolio, Ltd. 271,700
c/o The George Ventures Group
13407 N.W. Military Hwy.
San Antonio, TX 78231
Ross Financial Corporation 8,000,000
P.O. Box 31363
Seven Mile Beach
Grand Cayman, Cayman Islands
British West Indies
Rodney James Sands 271,700
Silver Ventures
2121 Broadway
San Antonio, TX 78209
================
Total: 16,284,604