1 EXHIBIT 10.20 NORTHWEST BIOTHERAPEUTICS, INC. AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT MARCH ___, 1999 2 TABLE OF CONTENTS Page ---- 1. Registration Rights................................................................1 1.1 Definitions.................................................................2 1.2 Company Registration........................................................2 1.3 Obligations of the Company..................................................3 1.4 Furnish Information.........................................................4 1.5 Expenses of Registration....................................................4 1.6 Underwriting Requirements...................................................4 1.7 Delay of Registration.......................................................5 1.8 Indemnification.............................................................5 1.9 Reports Under Securities Exchange Act of 1934...............................7 1.10 Assignment of Registration Rights...........................................8 1.11 "Market Stand-Off" Agreement................................................8 1.12 Termination of Registration Rights..........................................9 2. Covenants of the Company...........................................................9 2.1 Delivery of Financial Statements............................................9 2.2 Inspection..................................................................9 2.3 Termination of Covenants...................................................10 3. Covenants of Investors............................................................10 4. Miscellaneous.....................................................................10 4.1 Successors and Assigns......................................................10 4.2 Amendments and Waivers......................................................10 4.3 Notices.....................................................................10 4.4 Severability...............................................................101 4.5 Governing Law...............................................................11 4.6 Counterparts................................................................11 4.7 Titles and Subtitles........................................................11 4.8 Aggregation of Stock........................................................11 i 3 NORTHWEST BIOTHERAPEUTICS, INC. AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT This Investors' Rights Agreement (the "Agreement") is made as of the _____ day of March, 1999, by and among Northwest Biotherapeutics, Inc., a Delaware corporation (the "Company"), the Series A Preferred Stock investors listed on Exhibit A hereto, each of which is herein referred to as a "Series A Investor," the Series B Preferred Stock investors listed on Exhibit B hereto, each of which is herein referred to as a "Series B Investor," and the Series C Preferred Stock investors listed on Exhibit C hereto, each of which is herein referred to as a "Series C Investor." The Series A Investors, Series B Investors and Series C Investors are herein individually referred to as an "Investor" and collectively referred to as the "Investors." RECITALS A. The Company, the Series A Investors and the Series B Investors entered into an Investors' Rights Agreement dated as of September 15, 1998 (the "Original Rights Agreement") in order to provide such Investor with certain rights to receive or inspect information pertaining to the Company. B. The Series C Investors have subscribed for shares of Series C Preferred Stock pursuant to the Confidential Private Placement Memorandum dated November 16, 1998 and the subscription agreement related thereto (collectively, the "Subscription Agreements"). A condition to the Series C Investors' obligations under the Subscription Agreements is that the Company, the Series A Investors, the Series B Investors and the Series C Investors enter into this Agreement in order to provide the Investors with (i) certain rights to register shares of the Company's Common Stock issuable upon conversion of the Preferred Stock held by the Investors and (ii) certain rights to receive or inspect information pertaining to the Company. C. The Company, the Series A Investors and the Series B Investors desire to induce the Series C Investors to purchase shares of Series C Preferred Stock pursuant to the Subscription Agreements by agreeing to the terms and conditions set forth herein. D. The Series A Investors and the Series B Investors are holders of at least a majority of the outstanding Registrable Securities (as defined below) and desire to terminate the Original Rights Agreement in its entirety and accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Original Rights Agreement. AGREEMENT The parties hereby agree as follows: 1. REGISTRATION RIGHTS. The Company and the Investors covenant and agree as follows: 4 1.1 DEFINITIONS. For purposes of this Section 1: (a) The terms "register," "registered," and "registration" refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act of 1933, as amended (the "Securities Act"), and the declaration or ordering of effectiveness of such registration statement or document; (b) The term "Registrable Securities" means (i) the shares of Common Stock issuable or issued upon conversion of the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock of the Company and (ii) any other shares of 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, the shares listed in (i); provided, however, that the foregoing definition shall exclude in all cases any Registrable Securities sold by a person in a transaction in which his or her rights under this Agreement are not assigned. Notwithstanding the foregoing, Common Stock or other securities shall only be treated as Registrable Securities if and so long as they have not been (A) sold to or through a broker or dealer or underwriter in a public distribution or a public securities transaction, or (B) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof so that all transfer restrictions, and restrictive legends with respect thereto, if any, are removed upon the consummation of such sale; (c) The number of shares of "Registrable Securities then outstanding" shall be determined by the number of shares of Common Stock outstanding which are, and the number of shares of Common Stock issuable pursuant to then exercisable or convertible securities which are, Registrable Securities; (d) The term "Holder" means any person owning or having the right to acquire Registrable Securities or any assignee thereof in accordance with Section 1.10 of this Agreement; (e) The term "SEC" means the Securities and Exchange Commission; and (f) The term "IPO" means a firm commitment underwritten public offering by the Company of shares of its Common Stock pursuant to a registration statement on Form S-I under the Securities Act. 1.2 COMPANY REGISTRATION. If (but without any obligation to do so) the Company proposes to register (including for this purpose a registration effected by the Company for stockholders other than the Holders) any of its stock under the Securities Act in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company stock plan or a transaction covered by Rule 145 under the Securities Act, a registration in which the only stock being registered is Common Stock issuable upon conversion of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would 2 5 be required to be included in a registration statement covering the sale of the Registrable Securities), the Company shall, at such time, promptly give each Holder written notice of such registration. Upon the written request of each Holder given within twenty (20) days after mailing of such notice by the Company in accordance with Section 4.3, the Company shall, subject to the provisions of Section 1.6, cause to be registered under the Securities Act all of the Registrable Securities that each such Holder has requested to be registered. 1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its best efforts to cause such registration statement to become effective, and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to one hundred twenty (120) days. The Company shall not be required to file, cause to become effective or maintain the effectiveness of any registration statement that contemplates a distribution of securities on a delayed or continuous basis pursuant to Rule 415 under the Securities Act. (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement for up to one hundred twenty (120) days. (c) Furnish to the Holders such numbers 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 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 3 6 the statements therein not misleading in the light of the circumstances then existing, such obligation to continue for one hundred twenty (120) days. (g) Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed. (h) Provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration. (i) Use its best efforts to furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to this Section 1, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 1, 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 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, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities and (ii) a letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities. 1.4 FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 1 with respect to the Registrable Securities of any selling Holder that such 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 such Holder's Registrable Securities. 1.5 EXPENSES OF REGISTRATION. All expenses for each Holder (which right may be assigned as provided in Section 1.10), other than underwriting discounts and commissions incurred in connection with the first four (in the aggregate) registrations, filings or qualifications of Registrable Securities pursuant to Section 1.2, including (without limitation) all registration, filing, and qualification fees, printers' and accounting fees, fees and disbursements of counsel for the Company and the reasonable fees and disbursements of one counsel for the selling Holder or Holders selected by them with the approval of the Company, which approval shall not be unreasonably withheld, shall be borne by the Company. 1.6 UNDERWRITING REQUIREMENTS. In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 1.2 to include any of the Holders' securities in such underwriting unless they accept the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such 4 7 quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling stockholders according to the total amount of securities entitled to be included therein owned by each selling stockholder or in such other proportions as shall mutually be agreed to by such selling stockholders) but in no event shall the amount of securities of the selling Holders included in the offering be reduced below twenty percent (20%) of the total amount of securities included in such offering, unless such offering is the initial public offering of the Company's securities, in which case the selling stockholders may be excluded if the underwriters make the determination described above and no other stockholder's securities are included. For purposes of the preceding parenthetical concerning apportionment, for any selling stockholder which is a holder of Registrable Securities and which is a partnership or corporation, the partners, retired partners and stockholders of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single "selling stockholder," and any pro-rata reduction with respect to such "selling stockholder" shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such "selling stockholder," as defined in this sentence. 1.7 DELAY OF REGISTRATION. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any such registration as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 1. 1.8 INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under this Section 1: (a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder, any underwriter (as defined in the Securities Act) for such Holder and each person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (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; and the Company will pay to each such 5 8 Holder, underwriter or controlling person, as incurred, 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 subsection 1.8(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 to any Holder, underwriter or controlling person 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 any such Holder, underwriter or controlling person. (b) To the extent permitted by law, each selling Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter, any other Holder selling securities in such registration statement and any controlling person of any such underwriter or other Holder, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 1.8(b), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 1.8(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, that in no event shall any indemnity under this subsection 1.8(b) exceed the net proceeds from the offering received by such Holder, except in the case of willful fraud by such Holder. (c) Promptly after receipt by an indemnified party under this Section 1.8 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 1.8, 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 (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying 6 9 party of any liability to the indemnified party under this Section 1.8, 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 1.8. (d) If the indemnification provided for in this Section 1.8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage, or expense 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 statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations; provided, that in no event shall any contribution by a Holder under this Subsection 1.8(d) exceed the net proceeds from the offering received by such Holder, except in the case of willful fraud by such Holder. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control. (f) The obligations of the Company and Holders under this Section 1.8 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 1, and otherwise. 1.9 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making available to the Holders 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 a Holder to sell securities of the Company to the public without registration, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in SEC Rule 144, at all times after ninety (90) days after the effective date of the first registration statement filed by the Company for the offering of its securities to the general public so long as the Company remains subject to the periodic reporting requirements under Sections 13 or 15(d) of the Exchange Act; (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; and (c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied 7 10 with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the first registration statement filed by the Company), the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. 1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to register Registrable Securities pursuant to this Section I may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of at least 100,000 shares of such securities unless such transferee or assignee is a partner or affiliate of the Holder in which case no minimum shareholdings are required, or all of such transferring Holder's securities, if less than 100,000 shares, provided the Company is promptly furnished with 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 provided, further, that such assignment shall be effective only if immediately following such transfer the further disposition of such securities by the transferee or assignee is restricted under the Securities Act. For the purposes of determining the number of shares of Registrable Securities held by a transferee or assignee, the holdings of transferees and assignees of a partnership who are partners or retired partners of such partnership (including spouses and ancestors, lineal descendants and siblings of such partners or spouses who acquire Registrable Securities by gift, will or intestate succession) shall be aggregated together and with the partnership; provided that all assignees and transferees who would not qualify individually for assignment of registration rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices or taking any action under Section 1. 1.11 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that, during the period of duration (up to 180 days in the case of an initial public offering and up to 90 days in the case of all other public offerings) specified by the Company and an underwriter of Common Stock or other securities of the Company, following the effective date of a registration statement of the Company filed under the Securities Act, it shall not, to the extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any securities of the Company held by it at any time during such period except Common Stock included in such registration; provided, however, that all officers and directors of the Company enter into similar agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Securities of each Holder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period, and each Holder agrees that, if so requested, such Holder will execute an agreement in the form provided by the underwriter containing terms which are essentially consistent with the provisions of this Section 1.11. 8 11 Notwithstanding the foregoing, the obligations described in this Section 1.11 shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated in the future, or a registration relating solely to an SEC Rule 145 transaction on Form S-4 or similar forms which may be promulgated in the future. 1.12 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled to exercise any right provided for in this Section 1 after the earlier of (i) five (5) years following the consummation of an IPO, or (ii) such time as Rule 144 or another similar exemption under the Securities Act is available for the sale of all of such Holder's shares during a three (3)-month period without registration. 2. COVENANTS OF THE COMPANY. 2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall deliver to each Holder of at least 100,000 shares of Registrable Securities (other than a Holder reasonably deemed by the Company to be a competitor of the Company): (a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of stockholder's equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles ("GAAP"), and audited and certified by an independent public accounting firm of nationally recognized standing selected by the Company; (b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited profit or loss statement, a statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter; and (c) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget for the next fiscal year, prepared on a monthly basis. 2.2 INSPECTION. The Company shall permit each Holder of at least 100,000 shares of Registrable Securities (except for a Holder reasonably deemed by the Company to be a competitor of the Company), at such Holder's expense, to visit and inspect the Company's properties, to examine its books of account and records and to discuss the Company's affairs, finances and accounts with its officers, all at such reasonable times as may be requested by the Investor; provided, however, that the Company shall not be obligated pursuant to this Section 2.2 to provide access to any information which it reasonably considers to be a trade secret or similar confidential information. 2.3 TERMINATION OF COVENANTS. (a) The covenants set forth in Sections 2.1 and 2.2 shall terminate as to each Holder and be of no further force or effect (i) immediately prior to the consummation of an 9 12 IPO, or (ii) when the Company shall sell, convey, or otherwise dispose of or encumber all or substantially all of its property or business or merge into or consolidate with any other corporation (other than a wholly-owned subsidiary corporation) or effect any other transaction or Series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, provided that this subsection (ii) shall not apply to a merger effected exclusively for the purpose of changing the domicile of the Corporation. (b) The covenants set forth in Sections 2.1 and 2.2 shall terminate as to each Holder and be of no further force or effect when the Company first becomes subject to the periodic reporting requirements of Sections 13 or 15(d) of the Exchange Act, if this occurs earlier than the events described in Section 2.3(a) above. 3. COVENANTS OF INVESTORS. The Investor may be permitted, subject to compliance with applicable securities laws, to sell, transfer, distribute or grant participations to another person or party with respect to any or all the Securities in order to satisfy the requirements of the U.S. Internal Revenue Service. 4. MISCELLANEOUS. 4.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties (including transferees of the Preferred Stock or any class or Series or any Common Stock issued upon conversion thereof). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 4.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended or waived only with the written consent of the Company and the holders of a majority of the Registrable Securities then outstanding. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Registrable Securities then outstanding, each future holder of all such Registrable Securities, and the Company. 4.3 NOTICES. Unless otherwise provided, any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by telegram or fax, or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party's address or fax number as set forth on the signature page or on Exhibit A, Exhibit B and Exhibit C hereto or as subsequently modified by written notice. 4.4 SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of 10 13 the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms. 4.5 GOVERNING LAW. This Agreement and all acts and transactions pursuant hereto shall be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of laws. 4.6 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4.7 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 4.8 AGGREGATION OF STOCK. All shares of the Preferred Stock held or acquired by affiliated entities or persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. [Signature page follows] 11 14 EXHIBIT A LIST OF INVESTORS - SERIES A PREFERRED Northwest Hospital 550,700 TOTAL = 550,700 A-1 15 EXHIBIT B LIST OF INVESTORS - SERIES B PREFERRED ADDELCO Corporation 21,488 Mullan A. Chinn and Patricia A. Chinn 14,323 Daniel Edward Downing and Alin G. Downing 21,488 J. B. Goodfellow, Jr., TTEE 10,744 Gordon L. and Mary M. Grado 14,323 Green Manor Corporation 42,976 J.C.E.B. Childrens Trust 14,323 Charles W. Jacob, III 10,738 Christopher C. Jacob 4,295 Patricia C. Jacob 5,732 Leroy J. Korb 14,323 Einar Langesater 14,322 Prudential Securities C/F Virgil Manke-IRA Dated 08/7/98 Account #AEH- R23495-C4 128,935 Manke Lumber Company, Inc. 42,976 Janet Nettleton MD 14,323 Scott Norquist and Karen E. Hays 14,323 Bruce H. Pearson and Nancy C. Pearson 12,891 Progress Enterprises S.A. 429,794 Haakon Ragde 5,732 Eric M. Ragde 4,295 B-1 16 Kristina E. Ragde 4,295 Harry R. Steele 21,488 Ragnvald Svino 14,323 Edwin D. Vyhmeister and Ingrid Vyhmeister 15,039 ======= TOTAL = 897,489 B-2 17 EXHIBIT C LIST OF INVESTORS - SERIES C PREFERRED AAY-TO-ZEE LP 10,000 ALCO Investment Company 40,000 Eli J. Almo and Rebecca Almo, Community Property 10,000 John-Erik W. Anderson and Suzanne L. Anderson 5,000 Barbara Hagen Anderson 10,000 Jerome L. Anderson 10,000 H. Blair Bernson and Mary Hammond Bernson 6,000 H. Blair Bernson CUST Alexander Cunard Bernson UTMA 2,000 H. Blair Bernson CUST Miya Elizabeth Bernson UTMA 2,000 Jerome D. Bosch and Carolyn J. Bosch 10,000 Brent A. Bostwick and Karinn K. Bostwick 20,000 Karinn Bostwick C/F Eric Paul Bostwick UTMA CA 4,000 Karinn Bostwick C/F Kendra Marie Bostwick UTMA CA 4,000 Brooke L. Boswell and Sandra L. Boswell 12,000 Thomas P. Boyle, M.D. and Rosemarie Boyle 5,000 C-1 18 The Brachman Revocable Trust 10,000 U. S. Bank Nat'l. Association as Trustee of the Riddell Williams P. S. Profit Sharing and 401(k) Plan FBO David D. Buck 20,000 Arthur M. Buls 10,000 Laurie Robert Burrow Jr. and Jayn Ruth Burrow 10,000 Howard G. Butler, M.D. and Avital Butler 5,000 C.D.P. Partners 50,000 Campbell Properties 10,000 1972 Homer P. Carey Trust 30,000 Bevan A. Cates and Elaine B. Cates 10,000 Rick Cesari and Georgia Cesari 5,000 Joseph Chalal and Marilyn Graff 5,000 Chetron Enterprise LLP 20,000 Herbert R. Clark 10,000 Coldstream Merchant Fund I, L.P. 20,000 Ronald D. Crockett 240,000 Raul S. Cruz 5,000 William F. Daly, Jr. and Julia M. Tsutsui JT TEN 20,000 C-2 19 Leslie A. Deitz 5,000 Paul J. Delay 10,000 Marilyn O. Dennehy 10,000 Jeri Donnelly C/F Connor Donnelly 13,334 Jeri Donnelly C/F James Patrick Donnelly 13,333 Jeri Donnelly C/F Ross Donnelly 13,333 Daniel Edward Downing and Alin G. Downing 5,000 Dreams 4 Us 20,000 Charles Henry Dresser III, Custodian for Brittany J. Dresser UTMA Texas 100 Charles Henry Dresser III, Custodian for Charles Dresser IV UTMA Texas 100 Charles Henry Dresser III, Custodian for Kelly L. Dresser UTMA Texas 100 Roanne G. Dunbar 20,000 Tom Dwyer and Joleen Dwyer 10,000 William P. Eisenberg and Diane D. Jonas 3,000 Russell A. Ekeblad and Sheila R. Ekeblad 20,000 Elizabeth Ekeblad 10,000 Nels Erickson 10,000 C-3 20 Sonya F. Erickson 5,000 Cynthia Anne Feig, Custodian for Bradley Bennett Feig, UTMA Arizona 100 Cynthia Anne Feig, Custodian for Emily Rose Feig, UTMA Arizona 100 Cynthia Anne Feig, Custodian for Miriam Ashley Feig, UTMA Arizona 100 Daniel Ira Feig and Cynthia Anne Feig 2,500 A.H. Feige, Jr. 10,000 Carol Long Feige 10,000 Margaret A. Feige 10,000 Mary Christina Filippinetti, Custodian for Chloe Christina Filippinetti 100 Jonathan R. Fox 10,000 Howard L. Freedman 10,000 Pamela C. Freedman 10,000 Phillip F. Frink, Jr. 20,000 Robin F. Gainey 20,000 Gary E. Gigot 20,000 Gary Glant and Vicki Glant 88,000 Glant Capital LLC 12,000 Michael J. Goldfarb, his separate property 40,000 Stephen K. Gomez 2,000 C-4 21 Hellan Goodhope 10,000 George D. Hansen 20,000 Kenneth L. Hatch 20,000 David P. Hearn 10,000 Thomas W. Hearne III 20,000 Santiago J. Hernandez and Judith A. Hernandez, JTTEN 1,000 Jack E. Hodge Jr. 10,000 Stephanie A Hodge 10,000 U. S. Bank Nat'l. Association as Trustee of the Riddell Williams P. S. Profit Sharing and 401(k) Plan FBO David D. Hoff 10,000 Peter T. Holland 10,000 Paul A. Hopkins 20,000 Jarlath J. Hume 10,000 George P. Hutchinson 50,000 Douglas N. Jewett and Susan Simenstad-Jewett 10,000 Cynthia S. Johnson 10,000 Prudential Securities C/F Eileen R. Johnston ERJ Consulting Inc. SEP Dtd. 12/14/94, Account #066- R53796 10,000 Roland M. Joslyn 10,000 Gaylor Kasle and Barbara D. Kasle 2,500 C-5 22 Mark D. Kelly C/F Rex Southard Kelly UTMA CA 4,000 Mark D. Kelly C/F Reyna Karinn Kelly UTMA CA 4,000 Mark D. Kelly C/F Tayte Lorraine Kelly UTMA CA 4,000 Fred K. Koken 20,000 Linda F. Koken 20,000 Henry L. Kotkins, Jr. 20,000 Prudential Securities Inc. C/F G. Bruce Kramer IRA DTD 6/1/94 20,000 Stephen Krasner 5,000 Otis F. Lamson, Jr. Testamentary Trust 20,000 R. Michael Landers and Margaret E. Landers 10,000 U.S. Bank National Association as Trustee for the Riddel Williams P.S. Profit Sharing and 401(k) Plan FBO Marion V. Larson 5,000 Bonnie C. Larson 5,000 John A. Laskey and Margretta R. Laskey 10,000 Laura L. Lear, Custodian for Allison K. Lear UTMA California 100 Robert D. Long 20,000 C-6 23 Joseph Lu and Caroline Lu 10,000 Lois Major, Custodian for Malcolm H. Major UTMA Utah 100 Lois Major, Custodian for Naomi Major UTMA Utah 100 Lois Major, Custodian for Victor Major UTMA Utah 100 Mr. Paul C. Major and Ms. Lois W. Major, JT TEN (SS# ###-##-####) 5,000 Leo Mandrakos 10,000 William G. McCormick 20,000 McNeel International Corp 40,000 Van L. McNeel 40,000 Patrick D. McVey and Carolyn A. Peterson 10,000 Trust of Edgar B. Mercy 50,000 Verna E. Mercy 30,000 H. Richard Miller, Roth IRA, SSB Roth IRA Conversion Cust. 20,000 Janetta Moorehead 2,500 Jonathan G. Morgan 20,000 George E. Mueller 10,000 George A. Murray 30,000 Emilio Musso and Deborah Musso 4,800 C-7 24 Carl H. Neu Jr. 10,000 Gary M. Noren 20,000 Terence V. O'Keefe and Judy A. O'Keefe 20,000 Elizabeth B. Opazo, Custodian for Arlette M. Opazo UTMA Oregon 100 Elizabeth B. Opazo, Custodian for Daniel Opazo UTMA Oregon 100 Elizabeth B. Opazo, Custodian for Lucille C. Opazo UTMA Oregon 100 Bear Stearn Securities Corp c/f Anthony J. Pace IRA 10,000 Pacific Asset Partners 40,000 J. David Page 20,000 Michael J. Passell 10,000 PCKKW Investments, LLC 10,000 Douglas A. Pearson 12,000 William D. Pharr and Rebecca A. Ringhouse 10,000 George S. Phillips and Robin J. Phillips 10,000 Judith M. Phillips 20,000 Robert A. Piro & Mary S. Piro, JT TEN 10,000 David M. Polen 80,000 C-8 25 U.S. Bank Nat'l. Association as Trustee of the Riddell Williams P.S. Profit Sharing and 401(k) Plan FBO Douglass A. Raff 10,000 Ashok Rao and Sheela A. Rao 10,000 Patricia A. Raymer 2,000 Richard C. Redman 40,000 John B. Reed and Susan W. Reed 10,000 Michael J. Repass and Joanne M. Repass 20,000 Ann Feige Restad 10,000 William J. Rex 40,000 Shawn M. Richardson 5,000 Ruvane Richman 40,000 Loren Rindal 10,000 Ed Rontell 40,000 Cary L. Roth and Sharon K. Roth 5,000 Jane Sage 10,000 Bruce H. Schwager and Christine E. Schwager 10,000 John A. Schwager, Sr. 20,000 Steven G. Schwager and Anne W. Schwager 10,000 Gary R. Schwartz 40,000 Sellen/Redman Limited Partnership 20,000 Wanda L. Shaw 10,000 C-9 26 Kenneth R. Shear and Mary M. Bennett 10,000 Kenneth Shear 3,334 Kerry Shear 3,333 Mary Katherine Shear 3,333 Patricia Sheldon 10,000 David E. Skinner 20,000 Richard B. Smidt 10,000 Fred R. and Peggy L. Smith 5,000 Eric J. Soloff 10,000 Rachel Soloff 10,000 Parker Sroufe 24,000 William Stanton 5,000 Prudential Securities IRA/RO C/F Williard P. Steckel, Account #006- R52404 10,000 John E. Steiner and Dorothy L. Steiner 10,000 C. Jarius Stratton III 30,000 The Stusser Group 10,000 Michael J. Swindling 98,000 Mykola Taraban and Orest Taraban 10,000 Tenwall Investment Co. 30,000 Solveig H. Thomson 40,000 Philip D. Tom 5,000 C-10 27 Robert D. Tom 5,000 Ron B. Tonkin and Marcy L. Tonkin 40,000 Robert Trimble and Kathleen Trimble, community property 400,000 Kristine Trulin 2,000 Harry H. Tudor 2,500 Jan Thomas Turley MD 10,000 Laura L. Lear, Custodian for Victoria Lee Valderrama UTMA California 100 Janice L. Villard 8,000 Burton H. Walls and Ralene Walls JT TEN 10,000 Craig L. Webster 10,000 West View Partners, L.P. 20,000 William Whitesel, Custodian for Brenden E. Whitesel UTMA Georgia 100 William Whitesel, Custodian for Nathan Anders Whitesel UTMA Georgia 100 William Whitesel, Custodian for Sydney Chole Whitesel UTMA Georgia 100 Michael D. Whitesel 5,000 Gordon Wilcox, TTEE fbo The Gordon Wilcox 401(k) Plan dtd 1/1/93 10,000 C-11 28 John N. Winton and Jennifer T. Potter 10,000 John N. Winton 10,000 Gordon H. Wise 10,000 Edward M. Wold, Jr. 10,000 Carol Wright 10,000 ========= TOTAL = 3,350,600 C-12