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EXHIBIT 10.21
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Dated as of October 18, 1991
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TABLE OF CONTENTS
Page
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RECITALS .................................................................................. 1
SECTION 1
COVENANTS OF THE COMPANY ...................................... 4
1.1 Basic Financial Information ............................................. 4
1.2 Additional Information .................................................. 5
1.3 Prompt Payment of Taxes, etc. ........................................... 7
1.4 Maintenance of Properties and Leases .................................... 7
1.5 Insurance ............................................................... 7
1.6 Accounts and Records .................................................... 8
1.7 Independent Accountants ................................................. 8
1.8 Compliance with Requirements of Governmental
Authorities ............................................................. 8
1.9 Maintenance of Corporate Existence, etc. ................................ 8
1.10 Proprietary Information and Inventions Agreements ....................... 8
1.11 Indebtedness ............................................................ 9
1.12 Extension of Credit ..................................................... 9
1.13 Compensation of Officers ................................................ 9
1.14 Transactions with Affiliates ............................................ 9
1.15 Attendance at Board Meetings ............................................ 9
1.16 Board of Directors ...................................................... 10
1.17 Termination of Covenants ................................................ 10
SECTION 2
RESTRICTIONS ON TRANSFERABILITY OF
SECURITIES; COMPLIANCE WITH SECURITIES ACT ............................. 10
2.1 Restrictions on Transferability ......................................... 10
2.2 Certain Definitions ..................................................... 10
2.3 Restrictive Legend ...................................................... 11
2.4 Notice of Proposed Transfers ............................................ 12
2.5 Requested Registration .................................................. 13
(a) Request for Registration ....................................... 13
(b) Underwriting ................................................... 15
2.6 Company Registration .................................................... 16
2.7 Expenses of Registration ................................................ 17
2.8 Registration on Form S-2 or Form S-3 .................................... 18
2.9 Registration Procedures ................................................. 19
2.10 Indemnification ......................................................... 21
2.11 Information by Holder ................................................... 23
2.12 Limitations on Registration of Issues of
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TABLE OF CONTENTS
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Securities ............................................................. 23
2.13 Rule 144 Reporting ..................................................... 24
2.14 Transfer or Assignment of Registration Rights .......................... 24
2.15 "Market Stand-Off" Agreement ........................................... 25
SECTION 3
MISCELLANEOUS ........................................... 25
3.1 Governing Law .......................................................... 25
3.2 Successors and Assigns ................................................. 25
3.3 Entire Agreement; Amendment; Waiver .................................... 25
3.4 Notices, etc. .......................................................... 26
3.5 Delays or Omissions .................................................... 26
3.6 Rights; Separability ................................................... 26
3.7 Information Confidential ............................................... 26
3.8 Title and Subtitles .................................................... 27
3.9 Counterparts ........................................................... 27
3.10 TFSI and SVB Warrants .................................................. 27
3.11 Termination of Prior Agreements ........................................ 27
EXHIBITS
EXHIBIT A: Polygen Investors
EXHIBIT B: MSI Investors
ii.
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AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Amended and Restated Investor Rights Agreement (the "Agreement") dated
as of October 18, 1991, by and among POLYGEN CORPORATION, a Delaware corporation
("Polygen" or the "Company"), and the investors listed on Exhibits A and B
attached hereto (the "Investors").
RECITALS
WHEREAS, in order to induce Polygen and Molecular Simulations
Incorporated ("MSI") to enter into that certain Agreement and Plan of
Reorganization dated August 27, 1991 (the "Merger Agreement"), the Company's
obligations under which are conditioned upon the execution and delivery by the
Company and the Investors of this Agreement, Polygen and the Investors hereby
agree that this Agreement shall exclusively govern the rights of certain of the
Investors to cause the Company to register shares of its Common Stock (the
"Common Stock") issued or issuable to the Investors and certain other persons,
and the other matters set forth herein;
WHEREAS, effective upon the merger of MSI with and into Polygen (the
"Merger"), the Company and the Investors desire to set forth in a single
agreement any and all registration, first refusal, first offer, co-sale,
financial information, inspection, observer and board representation rights and
voting arrangements (collectively, "Investor Rights"), such agreement
superseding all previous agreements of Polygen and MSI as to such rights and
arrangements;
WHEREAS, effective upon the consummation of the Merger, the Company's
Certificate of Incorporation shall be amended to provide that all shares of the
Company's preferred stock shall be automatically converted into shares of the
Company's Common Stock and all rights of the Company's preferred stockholders as
preferred stockholders shall thereafter be eliminated in their entirety and any
rights to purchase the Company's preferred stock shall cease to exist,
WHEREAS, certain of the Investors are parties to that certain Investor
Rights Agreement dated February 24, 1989, as amended on October 16, 1990 (the
"Polygen Investors Agreement") pursuant to which Polygen granted to certain of
such Investors certain registration, first refusal, financial information,
inspection, observer, co-sale and board representation rights;
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WHEREAS, one of the Investors is a party to that certain Series D
Preferred Stock Purchase Agreement, dated February 27, 1989 (the "Polygen Series
D Agreement") pursuant to which Polygen granted to such Investor certain first
offer rights;
WHEREAS, one of the Investors is a party to that Registration Rights
Agreement and holder of that certain Common Stock Purchase Warrant each dated
October 16, 1990 (collectively, the "Polygen Registration Rights Agreement and
Warrant"), pursuant to which Polygen granted to such investor certain
registration and other rights as set forth in the Polygen Investors Agreement
and in such Warrant;
WHEREAS, certain of the Investors are parties to that certain Letter
Agreement dated February 27, 1989 (the "Polygen Letter Agreement"), pursuant to
which certain of such Investors granted to one of such Investors certain co-sale
rights;
WHEREAS, certain of the Investors are parties to that certain Voting
Agreement dated November 18, 1985 (the "Polygen Voting Agreement"), pursuant to
which such Investors agreed to provide for the future voting of certain of their
shares of
Polygen;
WHEREAS, certain of the Investors are parties to that certain
Stockholders Agreement dated November 18, 1985, as amended on December 2, 1986
and April 15, 1988 (the "Polygen Stockholders Agreement"), pursuant to which
such Investors agreed to provide for the future voting of certain of their
shares of Polygen and certain of such Investors granted to certain other of such
Investors first refusal rights;
WHEREAS, immediately prior to the consummation of the Merger, MSI's
Certificate of Incorporation shall be amended to provide that all shares of MSI
preferred stock shall be automatically converted into shares of MSI common stock
and all rights of MSI preferred stockholders as preferred stockholders shall
thereafter be eliminated in their entirety;
WHEREAS, effective upon the consummation of the Merger, (i) all MSI
Common Stock will be exchanged for Polygen Common Stock, (ii) all MSI stock
options and MSI warrants will be assumed by Polygen, and (iii) and all MSI
Common Stock as well as any rights to purchase MSI Common Stock shall cease to
exist;
WHEREAS, certain of the Investors are parties to that certain Purchase
Agreement dated January 25, 1988, as amended March 31, 1988 (the "First MSI
Series A Agreement"), pursuant to
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which MSI granted to certain of such Investors certain financial information,
inspection and first refusal rights;
WHEREAS, certain of the Investors are parties to that certain
Registration Agreement dated January 22, 1988, as amended March 31, 1988, March
18, 1991 and August 1, 1991 (the "MSI Registration Agreement"), pursuant to
which MSI granted to certain of such Investors certain registration rights;
WHEREAS, certain of the Investors are parties to that certain
Shareholders Agreement, dated January 22, 1988, as amended March 31, 1988 (the
"MSI Shareholders Agreement"), pursuant to which certain of such Investors have
agreed to have certain first refusal, co-sale and board representation rights;
WHEREAS, one of the Investors is a party to that certain Addendum to
Purchase Agreement dated March 31, 1988 (the "Second MSI Series A Agreement"),
pursuant to which MSI granted to such Investor certain financial information,
inspection, registration and first refusal rights as set forth in the First MSI
Series A Agreement, the MSI Registration Agreement and the MSI Shareholders
Agreement;
WHEREAS, one of the Investors is a party to that certain Series A
Preferred Stock Purchase Agreement dated March 18, 1991 (the "Third MSI Series A
Agreement"), pursuant to which MSI granted to such Investor certain financial
information, inspection and first refusal rights as set forth in the First MSI
Series A Agreement;
WHEREAS, Silicon Valley Bank ("SVB") is a party to the Silicon Valley
Bank Warrant Agreement ("SVB Warrant Agreement") pursuant to which MSI granted
to such Investor certain information rights and antidilution protection;
WHEREAS, certain Investors are parties to holdback agreements
("Holdback Agreements") dated January 22, 1988 providing them with certain
rights;
WHEREAS, certain of the Investors are parties to that certain Amendment
and Waiver Agreement dated March 18, 1991 (the "MSI Amendment Agreement"),
pursuant to which MSI granted to such Investors certain registration rights as
set forth in the MSI Registration Agreement;
WHEREAS, certain of the Investors are parties to those certain Letter
Agreements dated March 18, 1991 (the "MSI Letter Agreements"), pursuant to which
MSI granted to such Investors certain first refusal rights;
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WHEREAS, the Company desires to grant all applicable Investor Rights to
holders of MSI common stock and options and warrants to acquire MSI common stock
outstanding immediately prior to the consummation of the Merger (collectively,
the "MSI Securityholders") and to holders of Polygen capital stock outstanding
immediately prior to the consummation of the Merger as set forth herein;
WHEREAS, certain terms of the Merger may require a consent or waiver
from certain or all of the Investors for the consummation of such transactions;
NOW, THEREFORE, the undersigned agree that all registration, financial
information, inspection, observer, first refusal, first offer, board
representation and co-sale rights and voting arrangements under the
aforementioned agreements shall be extinguished in their entirety effective
immediately prior to the consummation of the Merger and all such Investor Rights
shall be set forth in this Agreement as follows:
SECTION 1
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
1.1 Basic Financial Information. The Company will furnish the following
reports to each Investor and MSI Securityholder (without duplication) so long
as such securityholder owns at least 400,000 shares of Polygen Common Stock
after the consummation of the Merger (as then presently constituted and subject
to subsequent adjustment for stock splits, stock dividends, reverse stock
splits, recapitalizations and the like) (each, a "Significant Rightsholder").
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within one hundred and twenty days thereafter, a
consolidated balance sheet of the Company and its subsidiaries, as of the end of
such fiscal year, and consolidated statements of income and sources and
applications of funds of the Company and its subsidiaries, for such year,
prepared in accordance with generally accepted accounting principles ("GAAP")
consistently applied (except as noted in the notes thereto) and setting forth in
each case in comparative form the figures for the previous fiscal year, all in
reasonable detail and certified by independent public accountants of recognized
national standing selected by the Company, and a Company prepared comparison to
budget.
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(b) 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 days thereafter, a consolidated balance sheet of the
Company and its subsidiaries, as of the end of each such quarterly period, and
consolidated statements of income of the Company and its subsidiaries for such
period and for the current fiscal year to date, prepared in accordance with GAAP
consistently applied (except as noted in the notes thereto) and setting forth in
comparative form the figures for the corresponding periods of the previous
fiscal year and the figures in the current budget, subject to changes resulting
from year-end audit adjustments, all in reasonable detail and certified by the
principal financial or accounting officer of the Company, except that such
balance sheet shall not contain the notes normally required by GAAP.
(c) From the date the Company becomes subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in lieu of the financial information required pursuant to Sections
1.1(a) and (b), copies of its annual reports on Form 10-K and its quarterly
reports on Form 10-Q.
1.2 Additional Information.
(a) The Company will permit any Significant Rightsholder (or a
representative of any such Significant Rightsholder) to visit and inspect any of
the properties of the Company, including its books of accounts and other records
(and make copies thereof and take extracts therefrom), and to discuss its
affairs, finances and accounts with the Company's officers and its independent
public accountants, all at such reasonable times and as often as any such person
may reasonably request.
(b) Until the earlier to occur of (i) the date on which the Company is
subject to the reporting requirements of Sections 13(a) or 15(d) of the Exchange
Act, or (ii) the date on which quotations for the Common Stock of the Company
are reported by the automated quotations systems operated by the National
Association of Securities Dealers, Inc. ("NASD"), or by an equivalent quotations
system, the Company will deliver the reports described below in this Section 1.2
to each Significant Rightsholder:
(i) As soon as practical after the end of each month and in any event
within thirty days thereafter, a consolidated balance sheet of the Company and
its subsidiaries, as of the end of such month and consolidated statements of
income of the Company and its subsidiaries, for each month and for the
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current fiscal year of the Company to date, all subject to customary year-end
audit adjustments, prepared in accordance with GAAP consistently applied and
certified by the principal financial or accounting officer of the Company
(except as noted in the notes thereto), together with a comparison of such
statements to the corresponding periods of the prior fiscal year and to the
Company's operating plan then in effect and approved by its Board of Directors.
(ii) Annually (but in any event at least fifteen days prior to the
commencement of each fiscal year of the Company), the business plan of the
Company, in such manner and form as approved by the Board of Directors of the
Company, which business plan shall include a projection of income and a
projected cash flow statement for such fiscal year and a projected balance sheet
as of the end of such fiscal year. Any material changes in such business plan
shall be submitted as promptly as practicable after such changes have been
approved by the Board of Directors of the Company.
(iii) As soon as practicable after the end of each fiscal year and in
any event within one hundred and twenty days thereafter, (A) a report from the
Company reporting on compliance with the terms and conditions of this Agreement
and any other agreement pursuant to which the Company has borrowed money and (B)
a copy of the annual management review letter of the Company's independent
public accountants.
(iv) As soon as practicable after transmission or occurrence and in any
event within ten days thereof, copies of any reports or communications delivered
to any class of the Company's security holders or to the financial community,
including any filings by the Company, or by any of its officers or directors
relating to the Company, with any securities exchange, the Securities and
Exchange Commission (the "Commission") or the National Association of Securities
Dealers, Inc.
(v) With reasonable promptness, such other information and data with
respect to the Company and its subsidiaries as any such person may from time to
time reasonably request.
(c) The provisions of Section 1.1 and this Section 1.2 shall not be in
limitation of any rights which any Significant Rightsholder may have with
respect to the books and records of the Company and its subsidiaries, or to
inspect their properties or discuss their affairs, finances and accounts, under
the laws of the jurisdictions in which they are incorporated.
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(d) Notwithstanding the foregoing, no Significant Rightsholder, in his
capacity as a Significant Rightsholder, shall have a right to access to any
trade secrets or classified information; and, provided further, that each
Significant Rightsholder shall agree to hold in confidence and trust any
information provided pursuant to this Section 1.2, except that the obligations
of International Business Machines Corporation ("IBM") with regard to
confidentiality shall be addressed in separate agreements.
1.3 Prompt Payment of Taxes, etc. The Company will promptly pay and
discharge, or cause to be paid and discharged, when due and payable, all lawful
taxes, assessments and governmental charges or levies imposed upon the income,
profits, property or business of the Company or any subsidiary; provided,
however, that any such tax, assessment, charge or levy need not be paid if the
validity thereof shall currently be contested in good faith by appropriate
proceedings or if the Company shall have set aside on its books adequate
reserves with respect thereto, and provided, further, that the Company will pay
all such taxes, assessments, charges or levies forthwith upon the commencement
of proceedings to foreclose any lien which may have attached as security
therefor. The Company will pay or cause to be paid when due, or in conformity
with customary trade terms or otherwise in accordance with policies related
thereto adopted by the Company's Board of Directors, all other material amounts
of indebtedness incident to the operations of the Company.
1.4 Maintenance of Properties and Leases. The Company will keep its
properties and those of its subsidiaries in good repair, working order and
condition, reasonable wear and tear excepted, and from time to time make all
necessary and proper repairs, renewals, replacements, additions and improvements
thereto; and the Company and its subsidiaries will at all times comply with each
material provision of all leases to which any of them is a party or under which
any of them occupies property if the breach of such provision might have a
material adverse effect on the condition, financial or otherwise, or results of
operations of the Company.
1.5 Insurance. Except as otherwise determined in accordance with
policies adopted by the Company's Board of Directors, the Company will keep its
assets and those assets of its subsidiaries which are of an insurable character
insured by financially sound and reputable insurers against loss or damage by
fire, explosion and other risks customarily insured against by companies in the
Company's line of business, and the Company will maintain, with financially
sound and reputable insurers, insurance against other hazards and risks and
liability to
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persons and property to the extent and in the manner customary for companies in
similar businesses similarly situated.
1.6 Accounts and Records. The Company will keep true records and books
of account in which full, true and correct entries will be made of all dealings
or transactions in relation to its business and affairs in accordance with GAAP
applied on a consistent basis.
1.7 Independent Accountants. The Company will retain independent public
accountants of recognized national standing who shall certify the Company's
financial statements at the end of each fiscal year. In the event the services
of the independent public accountants so selected or any firm of independent
public accountants hereafter employed by the Company are terminated, the Company
will promptly thereafter notify the Significant Rightsholders and will request
the firm of independent public accountants whose services are terminated to
deliver to the Significant Rightsholders a letter from such firm setting forth
the reasons for the termination of their services. In the event of such
termination, the Company will promptly thereafter engage another firm of
independent public accountants of recognized national standing. In its notice to
the Significant Rightsholder, the Company shall state whether the change of
accountants was recommended or approved by the Board of Directors of the Company
or any committee thereof.
1.8 Compliance with Requirements of Governmental Authorities. The
Company and each of its subsidiaries shall duly observe and conform to all valid
requirements of governmental authorities relating to the conduct of their
businesses or to their properties or assets.
1.9 Maintenance of Corporate Existence, etc. The Company shall maintain
in full force and effect its corporate existence, rights and franchises and all
licenses and other rights in or to use patents, processes, licenses, trademarks,
trade names or copyrights owned or possessed by it or any subsidiary and deemed
by the Company to be necessary to the conduct of their business without, to the
Company's best knowledge, any conflict with any business in or rights of others
to use such patents, processes, licenses, trademarks, trade names or copyrights.
1.10 Proprietary Information and Inventions Agreements. The Company
will use its best efforts to cause each person now or hereafter employed by it
or any subsidiary with access to confidential information to enter into a
proprietary information and inventions agreement in form and substance
acceptable to the
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Company's Board of Directors with such changes as the Company's Board of
Directors may from time to time approve.
1.11 Indebtedness. The Company shall not, without the prior approval of
the Board of Directors of the Company, incur any additional indebtedness in
excess of $500,000, other than trade credit incurred in the ordinary course of
business.
1.12 Extension of Credit. The Company shall not, without the prior
approval of the Board of Directors of the Company, extend credit by any method
or in any form or manner in excess of $200,000, other than open account credit
extended to customers in the ordinary course of business.
1.13 Compensation of Officers. The Company shall not, without the prior
approval of the Board of Directors of the Company, compensate any of its
officers in an amount greater than $100,000.
1.14 Transactions with Affiliates. The Company shall not, without the
approval of the disinterested members of the Company's Board of Directors,
engage in any loans, leases, contracts or other transactions with any director,
officer or key employee of the Company, or any member of any such person's
immediate family, including the parents, spouse, children and other relatives of
any such person, on terms less favorable than the Company would obtain in a
transaction with an unrelated party, as determined in good faith by the
Company's Board of Directors.
1.15 Attendance at Board Meetings. Immediately following the
consummation of the Merger and at all times subsequent thereto and to the time
of the effectiveness of the Company's initial public offering of sales of its
equity securities to the public on a registration statement on Form S-1 with
gross proceeds to the Company of at least $7,500,000 (an "IPO"), IBM (or its
representative) shall have the right to attend all meetings of the Company's
Board of Directors in a nonvoting observer capacity, to receive notice of such
meeting and to receive the information provided by the Company to the Company's
Board of Directors; provided, however, that IBM (or its representative) shall
agree to hold in confidence and trust and to act in a fiduciary manner with
respect to all information so provided; and, provided further, that the Company
reserves the right to exclude IBM (or its representative) from any meeting or
portion thereof to which attendance by IBM (or its representative) would
adversely affect the attorney-client privilege between the Company and its
counsel.
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1.16 Board of Directors. Each of the undersigned Investors agrees to
vote its shares of capital stock in favor of each of the nine members of the
Board of Directors of the Company (as constituted immediately after the
consummation of the Merger) until December 31, 1992.
1.17 Termination of Covenants. The covenants set forth in this Section
1 (except Section 1.16) shall terminate and be of no further force and effect
after the time of effectiveness of the Company's IPO meeting the conditions set
forth in Section 1.15 herein.
SECTION 2
RESTRICTIONS ON TRANSFERABILITY OF
SECURITIES; COMPLIANCE WITH SECURITIES ACT
2.1 Restrictions on Transferability. The shares of Common Stock of the
Company held by the Holders (as hereinafter defined) shall not be transferable,
except upon the conditions specified in this Section 2 or in the Merger
Agreement or in any certificate or letter referred to therein, which conditions
are intended to ensure compliance with the provisions of the Securities Act or
to account for the Merger as a pooling-of-interests transaction or, in the case
of Section 2.15 hereof, to assist in an orderly distribution, as the case may
be. Each holder will cause any proposed transferee of Restricted Securities (as
hereinafter defined) held by that holder to agree to take and hold those
securities subject to the provisions and upon the conditions specified in this
Section 2 or in the Merger Agreement or in any certificate or letter referred to
therein.
2.2 Certain Definitions. As used in this Section 2, the following terms
shall have the following respective meanings:
"Restricted Securities" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 2.3 hereof, but
shall in no event include any securities issued in connection with the Merger
Agreement.
"Registrable Securities" shall mean (i) shares of the Company's Common
Stock issued upon the automatic conversion of shares of each of the Series A,
Series B, Series C and Series D Preferred Stock of the Company pursuant to an
amendment to the Company's Certificate of Incorporation concurrently with the
consummation of the Merger; (ii) shares of the Company's Common Stock issued to
MSI common stockholders pursuant to the Merger Agreement; (iii) shares of the
Company's Common Stock issuable upon the exercise of the Company's Common Stock
purchase warrants
10.
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issued to Technology Funding Secured Investors II ("TFSI"); (iv) shares of the
Company's Common Stock issuable upon the exercise of common stock options and
common stock purchase warrants issued by MSI to and held by the former MSI
optionholders and MSI warrantholders assumed by the Company in connection with
the Merger; and (v) any shares of the Company's Common Stock issued in respect
of the Registrable Securities pursuant to any stock split, stock dividend,
recapitalization or similar event.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company
in compliance with Sections 2.5, 2.6 and 2.8 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, reasonable
fees and disbursements of one counsel for all of the selling Holders for a "due
diligence" examination of the Company, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of one counsel for all Holders (other than the fees and
disbursements of counsel included in Registration Expenses).
"Holder" shall mean (i) any holder holding or having the right to
acquire Registrable Securities which have not been sold to the public; or (ii)
any other person holding or having the right to acquire Registrable Securities
to whom these registration rights have been transferred pursuant to Section 2.14
of this Agreement.
"Initiating Holders" shall mean any holders or their assignees under
Section 2.14 hereof who in the aggregate are holders of 50% or more of the
shares of Common Stock held by all Holders.
2.3 Restrictive Legend. Other than shares of Common Stock issued or
issuable in connection with the Merger which shares shall be legended in
accordance with the provisions of the Merger Agreement, each appropriate
certificate representing (i) the shares of Common Stock or (ii) any other
securities issued in
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respect of the shares of Common Stock upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event shall (unless otherwise
permitted or unless the securities evidenced by such certificate shall have been
registered under the Securities Act) be stamped or otherwise imprinted with a
legend in substantially the following form (in addition to any legend required
under applicable state securities laws):
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES
LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend if, (A) with such request the
Company shall have received either the opinion referred to in Section 2.4(i) or
the "no-action" letter referred to in Section 2.4(ii) to the effect that any
transfer by such holder of the securities evidenced by such certificate will not
violate the Securities Act and applicable state securities laws or (B) in
accordance with Rule 144(k), such holder is not, and has not during the last
three months been, an affiliate of the Company and such holder has held the
securities represented by such certificate for a period of at least three years
and such holder is eligible to use Rule 144(k). In the event a holder falls
within clause (A) or (B) above, the Company will use its best efforts to assist
such holder in obtaining removal of the legend set forth above.
2.4 Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities agrees by acceptance thereof to comply in all
respects with the provisions of this Section 2.4. Prior to any proposed transfer
of any Restricted Securities (other than under circumstances described in
Sections 2.5, 2.6 and 2.8 hereof), the holder thereof shall give written notice
to the Company of such holder's intention to effect such transfer. Each such
notice shall describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied (except in transactions in
compliance with Rule 144) by either (i) a written opinion of legal counsel who
shall be reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration
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under the Securities Act, or (ii) a "no action" letter from the Commission to
the effect that the distribution of such securities without registration will
not result in a recommendation by the staff of the Commission that action be
taken with respect thereto, whereupon the holder of such Restricted Securities
shall be entitled to transfer such Restricted Securities in accordance with the
terms of the notice delivered by the holder to the Company. Each certificate
evidencing the Restricted Securities transferred as provided above shall bear
the appropriate restrictive legend set forth in Section 2.3 above, except that
such certificate shall not bear such restrictive legend if the opinion of
counsel or "no-action" letter referred to above is to the further effect that
such legend is not required in order to establish compliance with any provisions
of the Securities Act.
2.5 Requested Registration.
(a) Request for Registration. If the Company shall receive
from Initiating Holders at any time a written request that the Company effect
any registration with respect to all or a part of the Registrable Securities the
aggregate proceeds of which are expected to exceed $7,500,000 in the aggregate,
the Company will:
(i) promptly give written notice of the proposed registration
to all other Holders; and
(ii) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the execution
of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws
and appropriate compliance with applicable regulations issued under the
Securities Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
given within thirty days after such written notice from the Company is
effective; provided that the Company shall not be obligated to effect,
or to take any action to effect, any such registration pursuant to this
Section 2.5:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to
service of process in effecting such registration,
qualification or compliance, unless the Company is already
subject to service in such jurisdiction;
13.
17
(B) After the Company has effected two such registrations
pursuant to this Section 2.5(a) and such registrations have been
declared or ordered effective and the sales of such Registrable
Securities shall have closed; or
(C) Within 120 days of a registration pursuant to Section 2.6
hereof.
Subject to the foregoing clauses (A), (B) and (C), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders; provided, however, that if (i) in the
reasonable judgment of both counsel to the Company and the Board of Directors of
the Company, such registration or qualification would be inappropriate at such
time because of certain material information which would be required to be
disclosed in such a registration statement by reason of the Federal securities
laws, and (ii) the Company shall furnish to such Holders a certificate signed by
the President of the Company stating that in the good faith judgment of both
counsel to the Company and the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed in the near future containing the disclosure of material
information required to be included therein by reason of Federal securities laws
and that it is therefore essential to defer the filing of such registration
statement, then the Company shall have the right to defer such filing for the
period during which such disclosure would be seriously detrimental, provided
that the Company may not defer the filing for a period of more than 120 days
after receipt of the request of the Initiating Holders, and, provided further,
that the Company shall not defer its obligation in this manner more than once in
any twelve-month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2.5(b) below,
include other securities of the Company which are held by the then current
officers or directors of the Company or which are held by persons who, by virtue
of agreements with the Company, are entitled to include their securities in any
such registration to the extent such persons do not hold Registrable Securities
(the "Other Investors"), and may include securities of the Company being sold
for the account of the Company.
(b) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by
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means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2.5 and the Company shall include such
information in the written notice referred to in Section 2.5(a) (i) above. The
right of any Holder to registration pursuant to Section 2.5 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 Initiating Holders and such Holder with
respect to such participation and inclusion) to the extent provided herein. A
Holder may elect to include in such underwriting all or a part of the
Registrable Securities he holds.
If the Company shall request inclusion in any registration pursuant to
Section 2.5 of securities being sold for its own account, or if officers or
directors of the Company holding other securities of the Company or Other
Investors shall request inclusion in any registration pursuant to Section 2.5,
the Initiating Holders shall, on behalf of all Holders, offer to include the
securities of the Company and such officers, directors and Other Investors in
the underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section 2. The Company shall (together with all
Holders, officers, directors and Other Investors proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, which underwriter(s) are reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 2.5, if the representative
of the underwriters advises the Initiating Holders in writing that marketing
factors require a limitation on the number of shares to be underwritten which
may include the underwriters' position that none of such securityholders' shares
may be sold in such underwritten offering, the securities of the Company being
sold for its own account and the securities of the Company (other than
Registrable Securities) held by officers or directors of the Company shall be
excluded from such registration to the extent so required by such limitation
(which may be all of such securityholders' shares) and if a limitation of the
number of shares is still required, the number of shares (a) that may be
included in the registration and underwriting shall be allocated among all
Holders and Other Investors in proportion, as nearly practicable, to the
respective amounts of Registrable Securities and other securities which they
held at the time of filing the registration statement or (b) in the
underwriters' discretion, may be eliminated in their entirety. In the event that
that number of shares of Registrable Securities of any Initiating Holder
included in any registration is reduced below 90% of the
15.
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shares requested to be included in such registration as a result of the
allocations pursuant to this Section 2.5(b) or is reduced to zero, then such
registration shall not be deemed a registration for purposes of Section
2.5(a)(ii)(B). If the Company or any Holder of Registrable Securities, officer,
director or Other Investor who has requested inclusion in such registration as
provided above disapproves of the terms of any such underwriting, such person
shall withdraw therefrom by written notice to the Company, the underwriter and
the Initiating Holders. The securities so withdrawn shall also be withdrawn from
registration. Any Registrable Securities or other securities excluded shall also
be withdrawn from such registration.
2.6 Company Registration.
(a) If the Company shall determine to register any of its
securities either for its own account or the account of a securityholder or
holders exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration on any
registration form which does not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends
to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), except as set
forth in Section 2.6(b) below, and in any underwriting involved
therein, all the Registrable Securities specified in a written request
or requests made by any Holder within thirty days after the written
notice from the Company described in clause (i) above is effective.
Such written request may specify all or a part of a Holder's
Registrable Securities.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.6(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.6 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
16.
20
securities through such underwriting shall (together with the Company and the
Other Investors distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company, which underwriter(s) are
reasonably acceptable to a majority in interest of the participating Holders of
Registrable Securities. Notwithstanding any other provision of this Section 2.6,
if the representative of the underwriters advises the Company in writing that
marketing factors require a limitation on the number of shares to be
underwritten which may include the position of the underwriters that none of
such securityholders' shares may be sold in such underwritten offering, the
representative may (subject to the allocation priority set forth below) limit or
eliminate in its entirety, in the underwriters' sole discretion, as the case may
be, the number of Registrable Securities to be included in the registration and
underwriting. The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are entitled to be
included in the registration and underwriting, if any, shall be allocated first
to the Company for securities being sold for its own account and thereafter in
the following manner: the securities of the Company held by officers and
directors of the Company (other than Registrable Securities) shall be excluded
from such registration and underwriting to the extent required by such
limitation, and, if a limitation on the number of shares is still required, then
the number of shares that may be included in the registration and underwriting
shall be allocated among all such Holders and Other Investors in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities and
other securities which they held at the time of filing the registration
statement. If any Holder of Registrable Securities or any officer, director or
Other Investor disapproves of the terms of any such underwriting, he shall
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
2.7 Expenses of Registration. Except as provided in Section 2.8, all
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Section 2 shall be borne by the
Company, and all Selling Expenses shall be borne by the holders of the
securities so registered pro rata on the basis of the number of their shares so
registered; provided, however, that the Company shall not be required to pay any
Registration Expenses if, as a result of the withdrawal of a request for
registration by Initiating Holders (unless such withdrawal is due to the
misconduct of the Company or due to an unforeseen material adverse change in the
assets,
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business, condition or prospects of the Company occurring prior to the
effectiveness of the registration statement, in which case the Company will
continue to bear such expenses), the registration statement does not become
effective, in which case the Holders and Other Investors requesting registration
shall bear such Registration Expenses pro rata on the basis of the number of
their shares so included in the registration, provided that such registration
shall not be counted as a registration pursuant to Section 2.5(a) (ii) (B).
2.8 Registration on Form S-2 or Form S-3. The Company shall use its
best efforts to qualify for registration on Form S- 2 and Form S-3 or any
comparable or successor form or forms; and to that end the Company shall
register (whether or not required by law to do so) the Common Stock under the
Exchange Act in accordance with the provisions of the Exchange Act following the
effective date of the first registration of any securities of the Company on
Form S-1 or Form S-18 or any comparable or successor form or forms. After the
Company has qualified for the use of either Form S-2 or Form S-3 or both, in
addition to the rights contained in the foregoing provisions of this Section 2,
the Holders of Registrable Securities shall have the right to request unlimited
registrations on Form S-2 or Form S-3 (such requests shall be in writing and
shall state the number of shares of Registrable Securities to be disposed of and
the intended methods of disposition of such shares by such Holder or Holders);
provided, however, that (i) in the event that the Company is qualified for the
use of Form S-2 but is not qualified for the use of Form S-3, the Company shall
not be obligated to effect, or to take any action to effect, any such
registration on Form S-2 after the Company has effected four such registrations
pursuant to this Section 2.8 and such registrations have been declared or
ordered effective and the sales of such Registrable Securities shall have
closed, (ii) if the Company is qualified to use Form S-3 it shall not be
obligated to effect any registration on Form S-2, (iii) all Registration
Expenses and Selling Expenses in connection with such four registrations on Form
S-2 shall be borne pro rata by the Holder or Holders participating in the
registration and the Company on the basis of the number of their securities so
registered, (iv) in the case of any registration on Form S-3, all Registration
Expenses incurred thereby shall be borne by the Company and all Selling Expenses
incurred thereby shall be borne pro rata by the holders of the securities so
registered. Notwithstanding the above, the Company shall not be obligated to
effect any registration under this Section 2.8(i) 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) on Form S-3 at an aggregate price to the public of less than
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$500,000, (ii) in the event that the Company shall furnish the certification
described in paragraph 2.5(a) (ii) (but subject to the limitations set forth
therein), or (iii) in a given six-month period after the Company has effected
one such registration in any such period.
2.9 Registration Procedures. In the case of each registration
effected by the Company pursuant to Section 2, the Company will keep each Holder
advised in writing as to the initiation of each registration and as to the
completion thereof. At its expense, the Company will:
(a) keep such registration effective for a period of 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 (i) 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; and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 415, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section
10(a) (3) of the Securities Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Exchange Act in the registration statement;
(b) prepare and file with the Commission 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 such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
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(d) notify each seller 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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
(e) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(f) provide a transfer agent and registrar for all Registrable
Securities and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration;
(g) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney or accountant retained by any such
seller or underwriter, all financial records and other pertinent corporate
documents and properties of the Company, and cause the Company's officers and
directors to supply all information reasonably requested by any such seller,
underwriter, attorney or accountant in connection with such registration
statement; provided, however, that such seller, underwriter, attorney or
accountant shall agree to hold in confidence and trust all information so
provided;
(h) furnish to each selling Holder, to the extent feasible, a
signed counterpart, addressed to the selling Holder, of
(i) an opinion of counsel for the Company, dated the effective
date of the registration statement, and
(ii) comfort letters signed by the Company's independent
public accountants who have examined and reported on the Company's
financial statements included in
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the registration statement, to the extent permitted by the standards of
the American Institute of Certified Public Accountants or other
relevant authorities,
in each case covering substantially the same matters with respect to the
registration statement (and the prospectus included therein) and (in the case of
the accountants' comfort letters) with respect to events subsequent to the date
of the financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities;
(i) furnish to each selling Holder a copy of all documents
filed with and all correspondence from or to the Commission in connection with
any such offering other than non-substantive cover letters and the like;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act; and
(k) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2.5 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if the underwriter
so requests the underwriting agreement will contain customary contribution
provisions.
2.10 Indemnification.
(a) The Company will indemnify each Holder, each of its
officers, directors and partners, and each person controlling such Holder, with
respect to which registration, qualification or compliance has been effected
pursuant to this Section 2, and each underwriter, if any, and each person who
controls any underwriter, against all claims, losses, damages and liabilities
(or actions, proceedings or settlements in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission
21.
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(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers, directors
and partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by him
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company or such
underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other such Holder and Other Investor and each of
their officers, directors and partners, and each person controlling such Holder
or Other Investor, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company and such Holders, Other Investors, directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information about such Holder as a Stockholder furnished
to the Company by such Holder or Other Investor for the purpose of inclusion in
such document; provided, however, that the obligations of such Holder hereunder
shall not apply to amounts
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paid in settlement of any such claims, losses, damages or liabilities (or
actions in respect thereof) if such settlement is effected without the consent
of such Holder or Other Investor (which consent shall not be unreasonably
withheld); provided further, that the obligations of such Holders and Other
Investors hereunder shall be limited to an amount equal to the proceeds to each
such Holder or Other Investor of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section
2.10 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section
2.10, to the extent such failure is not prejudicial. 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. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
2.11 Information by Holder. Each Holder of Registrable
Securities shall furnish to the Company such information regarding such holder
and the distribution proposed by such Holder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Section 2.
2.12 Limitations on Registration of Issues of Securities. From
and after the date of this Agreement, the Company shall not, without the prior
written consent of the holders representing a majority in interest of the
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company giving such holder
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or prospective holder any registration rights the terms of which are materially
more favorable than the registration rights granted to Holders of Registrable
Securities hereunder.
2.13 Rule 144 Reporting. Subject to the requirements of Rule
145, with a view to making available the benefits of certain rules and
regulations of the commission which may permit the sale of the Restricted
Securities to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
from and after ninety days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements;
(c) so long as any holder owns any Restricted Securities,
furnish to the holder forthwith upon written request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after ninety days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public) and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a holder may reasonably request in availing itself of any
rule or regulation of the Commission allowing a holder to sell any such
securities without registration.
2.14 Transfer or Assignment of Registration Rights. Subject to
the terms of the Merger Agreement, the rights to cause the Company to register
securities granted to a Holder by the Company under Sections 2.5, 2.6 and 2.8
may be transferred or assigned by a Holder to a transferee or assignee of not
fewer than 50,000 shares of Restricted Securities (as presently constituted and
subject to subsequent adjustments for stock splits, stock dividends, reverse
stock splits and the like), provided that the Company is given written notice at
the time of or within a reasonable time after such transfer or assignment,
stating the name and address of such transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and provided
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further that the transferee or assignee of such rights assumes the obligations
of such holder under this Section 2.
2.15 "Market Stand-Off" Agreement. If requested by the Company
and an underwriter of Common Stock (or other securities) of the Company, a
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) during the seven-day period prior to and the 180-day period
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that:
(a) such agreement only applies to the first such registration
statement of the Company, including securities to be sold on its behalf to the
public in an underwritten offering; and
(b) all Holders, Other Investors and officers and directors of
the Company enter into similar agreements; provided, however, that the failure
of any Other Investor, officer, director or Holder each holding less than 1% of
the existing shares of Common Stock (on a fully diluted basis) to enter into a
similar agreement shall not relieve any Holder from its obligation to enter into
such agreement.
Such agreement shall be in writing in a form satisfactory to
the Company and such underwriter. The Company may impose stop transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of such 180-day period.
SECTION 3
MISCELLANEOUS
3.1 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Delaware, as if entered into by and between
Delaware residents exclusively for performance entirely within Delaware.
3.2 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; provided, however, the Company may not assign its rights
hereunder.
3.3 Entire Agreement; Amendment; Waiver. This Agreement
(including the exhibits hereto) constitutes the full and entire understanding
and agreement between the parties with
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regard to the subjects hereof and thereof. Neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated except by a written
instrument signed by the Company and the holders of at least 60% in the
aggregate of the Registrable Securities then held by Holders.
3.4 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
first-class mail, postage prepaid, or delivered either by hand or by messenger,
addressed (a) if to any Investors, as indicated on the list of Investors
attached hereto as Exhibits A and B, or at such other address as such Investor
or permitted assignee shall have furnished to the Company in writing, or (b) if
to the Company, to Chief Executive Officer and President, Polygen Corporation,
000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, or at such other address as the Company
shall have furnished to each holder in writing. All such notices and other
written communications shall be effective (i) if mailed, five days after mailing
and (ii) if delivered, upon delivery.
3.5 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any holder upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement or any
waiver on the part of any holder of any provision or condition of this Agreement
must be made in writing and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this Agreement or by law
or otherwise afforded to any holder, shall be cumulative and not alternative.
3.6 Rights; Separability. Unless otherwise expressly provided
herein, a holder's rights hereunder are several rights, not rights jointly held
with any of the other holders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
3.7 Information Confidential. Each holder acknowledges that
the information received by it pursuant hereto may be confidential and for its
use only, and it will not use such confidential information in violation of the
Exchange Act or
26.
30
reproduce, disclose or disseminate such information to any other person (other
than its employees or agents having a need to know the contents of such
information, and its attorneys), except in connection with the exercise of
rights under this Agreement, unless the Company has made such information
available to the public generally or such holder is required to disclose such
information by a governmental body.
3.8 Title and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and shall
not affect in any way the meaning or interpretation of this Agreement.
3.9 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.
3.10 TFSI and SVB Warrants. Each of TFSI and SVB understands
and agrees that there will not be price dilution protection in respect to their
respective warrants in the Company's and MSI's respective certificate of
incorporation or in the warrants held by TFSI and SVB. TFSI understands and
agrees that by executing this Agreement, TFSI waives its rights to participate
in and receive any adjustments in the Warrant exercise price or number of shares
of Common Stock issuable upon exercise of the Warrants pursuant to the
securities issued and issuable in connection with the Merger and pursuant to any
future Dilution Sale (as such term is defined in the common stock purchase
Warrant (together with Exhibit A thereto) issued to TFSI on October 16, 1990).
3.11 Termination of Prior Agreements. Effective immediately
prior to the Closing (as that term is defined in the Merger Agreement), the
following agreements are hereby superseded in their entirety by the terms hereof
and shall be of no further force and effect: (i) the Polygen Investors
Agreement; (ii) the Polygen Series D Agreement; (iii) the Polygen Registration
Rights Agreement and Warrant; (iv) the Polygen Letter Agreement; (v) the Polygen
Voting Agreement; (vi) the Polygen Stockholders Agreement; (vii) the First MSI
Series A Agreement; (viii) the MSI Registration Agreement; (ix) the MSI
Shareholders Agreement; (x) the Second MSI Series A Agreement; (xi) the Third
MSI Series A Agreement; (xii) the MSI Amendment Agreement; (xiii) the MSI Letter
Agreements; (xiv) the SVB Warrant Agreement; and (xv) the Holdback Agreements.
27.
31
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
ABS Ventures II Limited Partnership
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Partner
INVESTOR
ALIAS
----------------------------------------
(Print or Type Name)
By /s/ [signature illegible]
------------------------------------
Name:
Title:
INVESTOR
XXXXX X. XXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xxx
------------------------------------
Name: XXXXX X. XXX
Title: TECHNICAL SUPPORT, MSI
INVESTOR
XXXX XXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxx Xxxxxx
------------------------------------
Name:
Title:
32
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By ------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
Banc Boston Ventures Inc.
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
INVESTOR
XXXXXXX X. XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ P. M. Xxxxxxx
------------------------------------
Name:
Title:
INVESTOR
XXXXXX XXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx Xxxxx 10/28/91
------------------------------------
Name: Xxxxxx Xxxxx
Title: Marketing Administrator
INVESTOR
Xxxxx Technology Associates
Limited Partnership
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx X. Xxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: General Partner
33
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By: ___________________________________
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
X. XXXX XXXXX
----------------------------------------
(Print or Type Name)
By /s/ X. XXXX XXXXX
------------------------------------
Name: X. XXXX XXXXX
Title: General Partner
INVESTOR
CH Partners IV
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx Xxxxx
------------------------------------
Name:
Title:
INVESTOR
Xxxxxxx Enterprises
----------------------------------------
(Print or Type Name)
By /s/ [signature illegible]
------------------------------------
Name:
Title:
INVESTOR
Xxxxxxx X. Xxxxxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name:
Title:
34
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By: ___________________________________
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
X. XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ X. Xxxxxxx
------------------------------------
Name:
Title:
INVESTOR
CRUTTENDEN & CO.
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name:
Title:
INVESTOR
Xxxxxx Associates/ California Partners
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
INVESTOR
EGC II LIMITED PARTNERSHIP
XXXXXXX X. XXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: XXXXXXX X. XXXX
Title: EGC II LIMITED PARTNERSHIP
BY GENERAL PARTNER BALTIMORE
STREET CAPITAL III BY
GENERAL PARTNER XXXXXXX X.
XXXX
35
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above
written.
POLYGEN CORPORATION
By
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
Xxxxx X. Xxxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title:
INVESTOR
XXXXXX X. XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
INVESTOR
XXXX X. XXXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
INVESTOR
[illegible]
----------------------------------------
(Print or Type Name)
By /s/ [signature illegible]
------------------------------------
Name:
Title:
36
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above
written.
POLYGEN CORPORATION
By
----------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
GEOCAPITAL II
--------------------------------
(Print or Type Name)
By /s/ [signature illegible]
----------------------------
Name: [illegible]
Title: General Partner
INVESTOR
GC&H INVESTMENTS
--------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Partner
INVESTOR
GEOCAPITAL VENTURES
--------------------------------
(Print or Type Name)
By /s/ [signature illegible]
-----------------------------
Name:
Title: General Partner
INVESTOR
XXXXXX XXXXXX XXXXXXX XXXXXXX X XXXXXXX
-------------------------- ----------------------------
(Print or Type Name) (Print or Type Name)
/s/ Xxxxxx Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------- ----------------------------
Name: Name: Xxxxxxx X. Xxxxxxx
Title: Title:
37
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above
written.
POLYGEN CORPORATION
By
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
XXXXX XXXXX
----------------------------------------
(Print or Type Name)
By /s/ X. Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Dr.
INVESTOR
XXXXX X. XXXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
INVESTOR
INNOVEN III CORP
----------------------------------------
(Print or Type Name)
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
38
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above
written.
POLYGEN CORPORATION
By
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
INNOVEN IV CORP
----------------------------------------
(Print or Type Name)
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
INVESTOR
INTERNATIONAL BUSINESS
MACHINES CORPORATION
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Business
Development, IBM U.S.
INVESTOR
KME VENTURE CAPITAL L.P.
By: Sajat Ltd., General Partner
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xx-Xxxxx
------------------------------------
Name: Xxxxx X. Xx-Xxxxx
Title: Attorney-In-Fact
INVESTOR
XXXXX XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name:
Title:
39
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above
written.
POLYGEN CORPORATION
By
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
LAR PARTNERS
----------------------------------------
(Print or Type Name)
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Managing Partner
INVESTOR
Xxxxx Xxxxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx Xxxxxx
------------------------------------
Name:
Title:
INVESTOR
/s/ X. Xxxxxx
----------------------------------------
(Print or Type Name)
By /s/ X. Xxxxxx
------------------------------------
Name: X. Xxxxxx
Title:
INVESTOR
LYNXVALE LTD
----------------------------------------
(Print or Type Name)
By /s/ X.X. Xxxxxxx
------------------------------------
Name: X.X. Xxxxxxx
Title: Director
40
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
The XxxXxxx-Xxxxxxxxxx Corporation
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. XxxXxxx
------------------------------------
Name: Xxxxxxx X. XxxXxxx
Title: Chairman and CEO
INVESTOR
Xxxxxxx Xxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx Xxxx
------------------------------------
Name:
Title:
INVESTOR
MENLO VENTURES III
By Menlo Management Partners,
Its General Partner
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
INVESTOR
Xxxxxx Xxxxxxx Venture Capital Fund L.P.
By: Xxxxxx Xxxxxxx Venture Partners L.P.
its General Partner
----------------------------------------
(Print or Type Name)
By: Xxxxxx Xxxxxxx Venture Capital Inc.,
its Managing General Partner
By /s/ Xxx xx Xxxxxx
------------------------------------
Name: Xxx xx Xxxxxx
Title: President
41
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By ________________________
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
XXXXXX X. XXXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
INVESTOR
XXXXX X. XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name:
Title: Vice President
INVESTOR
Porosan Group
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
INVESTOR
Xxxxxxx Xxxxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx Xxxxxx
------------------------------------
Name:
Title:
42
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By ________________________
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
Xxxxxxx X. Xxxxxx
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name:
Title: President & CEO
INVESTOR
SIF Limited Partnership
by Xxxxxx Xxxxxxx Venture Capital Inc.,
its Advisor
----------------------------------------
(Print or Type Name)
By /s/ Xxx xx Xxxxxx
------------------------------------
Name: Xxx xx Xxxxxx
Title: Vice President
INVESTOR
Silicon Valley Bank
----------------------------------------
(Print or Type Name)
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Corporate Banking Officer
INVESTOR
TECHNOLOGY FUNDING SECURED INVESTORS II,
a California limited partnership
By: TECHNOLOGY FUNDING INC.
Managing General Partner
By /s/ [signature illegible]
--------------------------------
43
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Investor Rights Agreement effective as of the date first above written.
POLYGEN CORPORATION
By ________________________
Name: Xxxxxxx Xxxxxx
Title: President
INVESTOR
TRANSITIONS TWO, LIMITED PARTNERSHIP
By: Technology Transitions Partners
A General Partner
By: Technology Transitions, Inc.
Its Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
XXXXXX X. XXXXXX
Vice President
INVESTOR
[Xxxxxxx X. W illegible]
----------------------------------------
(Print or Type Name)
By /s/ [Xxxxxxx X. W illegible]
------------------------------------
Name:
Title:
INVESTOR
XXXXX XXXXXXX
----------------------------------------
(Print or Type Name)
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title:
INVESTOR
----------------------------------------
(Print or Type Name)
By /s/ X. X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Dr.
44
EXHIBIT A
LIST OF INVESTORS OF POLYGEN
Xxxxxxx X. Wales
0 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Alias
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
EGC Limited Partners
c/o Xxxx Xxxxx & Sons
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Technology Funding Secured Investors II
c/o Technology Funding, Inc.
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
International Business Machines Corporation
c/o Director of Business Development
Applications Systems Division
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
ABS Ventures II Limited Partnership
c/o Alex: Xxxxx & Sons
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxx Technology Associates
Limited Partnership
c/o Alex. Xxxxx & Sons
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
1.
45
GeoCapital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Xxxxxxx Enterprises
0000 Xxxx Xxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Miles Xxxxxxx
California Partners
c/x Xxxxxx Associates
0000 X. Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Menlo Ventures III
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
GC&H Investments
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
c/o GEO Capital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxx
c/o XXX Capital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxxxx
c/o GEO Capital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx
c/o XXX Capital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
2.
46
c/o GEO Capital Ventures
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxx
X.X. Xxxx & Co.
000 Xxxxxxx 00
Xxxxxxxx, XX 00000
SIF Limited Partnership
c/o Morgan Xxxxxxx Venture
Capital, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. xxXxxxxx
Xxxxxx Xxxxxxx Venture
Capital Fund L.P.
c/o Morgan Xxxxxxx Venture
Capital, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Guy L. xxXxxxxx
XXXX & CO.
c/o Chancellor Capital Management, Inc.
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Boston Safe Deposit and Trust Co.
as Trustee for US WEST Master Trust
0 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Securities Operations Department
Mellon Bank, N.A. Master
Trustee for Xxxx Atlantic
Master Pension Trust (as
directed: Citibank, N.A.)
c/o Citicorp
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
3.
47
Continental Illinois National
Bank & Trust as Custodian,
at the direction of Citibank,
N.A., Investment Manager for the
Policemen's Annuity and Benefit
Fund of Chicago
c/o Citicorp
000 Xxxx 00xx St:, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Xxxxx X. Xxxxx
c/o Citicorp
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx
c/o Chancellor Capital Management, Inc.
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxxx
c/o Chancellor Capital Management, Inc:
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
BancBoston Ventures Inc:
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx H: Xxxxxxx
Charter Ventures
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: X. Xxxx Xxxxx
GeoCapital II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
InnoVen III
Park 80 Plaza West-One
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx:
4.
48
InnoVen IV
Park 80 Plaza West-One
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
XXX Xxxxxxxx
Xxxx 00 Xxxxx Xxxx-Xxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
KME Venture Capital Limited Partnership
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Transitions Two, Limited Partnership
000 Xxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Landmark Ventures, Inc.
X.X. Xxx 000
920 Hopmeadow Street
Sinsury, CT 06070-018
Attn: Xxxxxx X. Xxxxxxx
5.
49
EXHIBIT B
LIST OF INVESTORS OF MSI
MSI Stockholders
XxxXxxx Xxxxxxxxxx Corp.
000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxxx
Xx. Xxxxxxxxxxx X. Xxxxx
0 Xxxxxxxx Xxxxxx #0-0000
Xxx Xxxxxxxxx, XX 00000
Xx. Xxxxx Xxxxx
0 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxxx, XX0 0XX XXXXXXX
Xx. Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX0 0XX XXXXXXX
Xx. Xxxxxx Xxxxxxxx
00000 Xxxxxxx Xxxx. #000
Xxxxx Xxxxxxxxx, XX 00000
CH Partners IV
Ranier Park Plaza
000-000xx Xxx. XX Xxxxx 0000
Xxxxxxxx, XX 00000
Xx. Xxxxxx X. Cable
Xx. Xxxxxxx X. Xxxx
00000 XxXxxx Xxxxx
Xxx Xxxxx Xxxxx, XX 00000
Xx. Xxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxx III and Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX0 0XX XXXXXXX
1.
50
Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxx
Xxxxxxxxx, XXXXXXX
Xx. Xxxx X. Xxxxxx
00 Xxxxxx'x Xxx
Xxxxxxxxx, XXXXXXX
Xx. Xxxx Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Porosan Group
c/o Xx. Xxxxx X. Xxxxx
00000 Xxxxxxxxx Xxx.
Xxx Xxxxxxx, XX 00000
Lynxvale Limited
c/o Xx. Xxxx X. Xxxxxx
The Old Schools
Cambridge, ENGLAND
Xx. Xxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Ms. Xxxxx Xxxxx
0000 Xx. Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
MSI Stock Option Holders
Xx. Xxxxx X. Xxxxx
c/o Porosan Group
00000 Xxxxxxxxx Xxx.
Xxx Xxxxxxx, XX 00000
Xx. Xxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxx
Xxx Xxxx, XX 00000
Xx. Xxxx X. Xxxxxxxx
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
2.
51
Xx. Xxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
Xx. Xxx Xxxx Fan
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Xx. Xxxxx Xxx
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Xx. Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xx. Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xx. Xxxxxx Xxxxx
000 Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Xx. Xxxx Xxxxx
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Mr. Xxxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Xx. Xxxxx Xxxxx
000 Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xx. Xxxx Xxxxxxxxxxx
000 Xxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
3.
52
Xxxxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx #000
Xxxxx Xxxxx, XX 00000
Xx. Xxxxxx Xxxxx
000 Xxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Xx. Xxxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Xx. Xxxxxx X. Xxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xx. Xxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Xx. Xxxxxx Xxxx
0000 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxx. Xxxxxx Xxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Xx. Xxxx Xxxx Xxx
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxx. Xxxx Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xx. Xxxx-Xxxxxxx Xxxxxxxx
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxxx, Xxxxxxxxxxx
Xx. Xxxx X. Xxxxx
4.
53
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Xx. Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Dr. Xxx Xxxxx
000 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Xx. Xxxxxx Picouleau
000 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Dr. Xxxxx Xxxxxx
000 Xxxxxxxxx #000
Xxx Xxxxxxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxxxx
Xxx Xxxxx, XX 00000
Xx. Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxx. Xxxxxxxx Xxxxxx
000 Xxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
Xx. Xxxxxxx Xxxxxx
000 X. Xxxxxxx Xxxx #000
Xxxxxxxx Xxxx, XX 00000
Xx. Xxxx Xxxxx
0000 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Xx. Xxxxx Xue
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Xx. Xxxxxxx Xxxx
Maison Shirogane 201
5.
54
0-0-0 Xxxxxxxxx, Xxxxxx-xx Xxxxx 000 Xxxxx
Dr. Xxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Dr. Xxxxx Xxxx
0000 X. Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Xx. Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Xxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XXXXXX XXXXXXX
Xx. Xxxxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx XX0 IDZ
UNITED KINGDOM
Xxxx Xxxxxxx
0000 Xxx Xxx Xxxxx
Xxxxxxxxxx, XX 00000
Gemma Rocchette
00000 Xxxxx Xxxxx Xxxx #000
Xxxxxx Xxxxxxxxx, XX 00000
MSI Warrant Holders
Cruttenden & Company
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
c/o Cruttenden & Company
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
6.
55
X.X. XxXxx
c/o Cruttenden & Company
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Xxxxxxx Xxxx
c/o Cruttenden & Company
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Silicon Valley Bank
00 Xxxx Xxxx Xxxx
Xxxxx X-0000
Xxxx Xxxx, XX 00000
7.
56
AMENDMENT TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Amendment to Amended and Restated Investor Rights Agreement (the
"Amendment") is made pursuant to Paragraph 3.3 of the Amended and Restated
Investor Rights Agreement dated as of October 18, 1991 (the "Agreement") by and
among POLYGEN CORPORATION, a Delaware corporation (the "Company") and various
investors in the Company as listed on Exhibit A and B to the Agreement. All
terms capitalized herein shall have the meanings ascribed to them in the
Agreement. The undersigned securityholders hereby agree as of February 14, 1992
as follows:
RECITALS
WHEREAS, an October 18, 1991, certain of the securityholders listed
below (the "Securityholders") and the Company entered into the Agreement to
provide for certain registration, information and other rights set forth therein
for such Securityholders;
WHEREAS, Section 1.16 of the Agreement provides for an agreement for
the election of the Company's Board of Directors;
WHEREAS, recently the Board of Directors of the Company approved an
amendment to Section 1.16 of the Agreement to provide for an agreement with
respect to Board of Directors' representation;
WHEREAS, the Company and the undersigned Securityholders desire that
such Section 1.16 be amended as set forth herein;
WHEREAS, the Board of Directors also recently approved the sale of
certain shares of the Company's Common Stock to Teijin Limited pursuant to that
certain Common Stock Purchase Agreement dated on or about February 14, 1992 (the
"Purchase Agreement");
WHEREAS, in connection with the issuance and sale of such shares, the
Company, Teijin Limited and the undersigned Securityholders desire that Teijin
Limited be granted the rights
57
as well as the obligations of a Securityholder as set forth in the Agreement;
WHEREAS, the Amendment to the Agreement requires the approval of the
Company and the Holders of at least 60% of the Registrable Securities.
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration,
receipt of which is hereby acknowledged, the Company, Teijin Limited and the
undersigned Securityholders hereby agree that the Agreement shall be amended by
this Amendment as follows:
1. Section 1.16 of the Agreement shall be deleted in its entirety and
shall read as follows:
"1.16 Board of Directors. Each of the undersigned Investors
agrees until December 31, 1992 to vote its shares of capital stock in
favor of (a) each of the nine members of the Board of Directors of the
Company (as constituted immediately after the consummation of the
Merger, or any successor Director to any of such nine Directors, if
any, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board of Directors after a
Director's death or resignation) and (b) the tenth member of the Board
of Directors elected by the Board of Directors to fill the newly
created vacancy as of January 22, 1992 (or any successor to such
Director, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board after such Director's
resignation or death.)"
2. Upon the issuance of the shares of Common Stock of the Company to
Teijin Limited pursuant to the Purchase Agreement, Teijin Limited shall be
deemed to be a party to the Agreement as if an original signatory thereto and
shall be entitled to all of the rights and agrees to be bound by all of the
obligations of an "Investor," a "Holder," a "Holder of Registrable Securities"
and a "Holder of Restricted Securities," as each such term is defined in the
Agreement.
3. Notwithstanding the foregoing, Teijin Limited shall not be subject
in any way to the terms of the Merger Agreement and Section 2.1 of the Agreement
shall apply to Teijin Limited as if it read as follows:
2.
58
2.1 Restrictions on Transferability. The shares of Common
Stock of the Company held by the Holders (as hereinafter defined) shall
not be transferable, except upon the conditions specified in this
Section 2, which conditions are intended to ensure compliance with the
provisions of the Securities Act, or, in the case of Section 2.15
hereof, to assist in an orderly distribution, as the case may be. Each
holder will cause any proposed transferee of Restricted Securities (as
hereinafter defined) held by that holder to agree to take and hold
those securities subject to the provisions and upon the conditions
specified in this Section 2.
4. The paragraph entitled "Registrable Securities" of Section 2.2 of
the Agreement shall be deleted in its entirety and shall read as follows:
""Registrable Securities" shall mean (i) shares of the
Company's Common Stock issued upon the automatic conversion of shares
of each of the Series A, Series B, Series C and Series D Preferred
Stock of the Company pursuant to an amendment to the Company's
Certificate of Incorporation concurrently with the consummation of the
Merger; (ii) shares of the Company's Common Stock issued to MSI common
stockholders pursuant to the Merger Agreement; (iii) shares of the
Company's Common Stock issuable upon the exercise of the Company's
Common Stock purchase warrants issued to Technology Funding Secured
Investors II ("TFSI"); (iv) shares of the Company's Common Stock issued
to Teijin Limited pursuant to the Purchase Agreement; (v) shares of the
Company's Common Stock issuable upon the exercise of common stock
options and common stock purchase warrants issued by MSI to and held by
the former MSI optionholders and MSI warrantholders assumed by the
Company in connection with the Merger; and (vi) any shares of the
Company's Common Stock issued in respect of the Common Stock set forth
in clauses (i) - (v) immediately above pursuant to any stock split,
stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Agreement shall remain in full force and effect.
6. This Amendment may be executed in any number of counterparts, each
of which may be executed by less that all of
3.
59
the parties hereto and each of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
` POLYGEN CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxx
_________________________
Title: President
________________________
SECURITYHOLDER
By:______________________________
Print Name: __________________
TEIJIN LIMITED
By:/s/ Xxxxx Xxxxxx
______________________________
Name: Xxxxx Xxxxxx
_________________________
Title: Managing Director
________________________
4.
60
AMENDMENT TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Amendment to Amended and Restated Investor Rights Agreement (the
"Amendment") is made pursuant to Paragraph 3.3 of the Amended and Restated
Investor Rights Agreement dated as of October 18, 1991 (the "Agreement") by and
among POLYGEN CORPORATION, a Delaware corporation (the "Company") and various
investors in the Company as listed on Exhibit A and B to the Agreement. All
terms capitalized herein shall have the meanings ascribed to them in the
Agreement. The undersigned securityholders hereby agree as of February 14, 1992
as follows:
RECITALS
WHEREAS, on October 18, 1991, certain of the securityholders listed
below (the "Securityholders") and the Company entered into the Agreement to
provide for certain registration, information and other rights set forth therein
for such Securityholders ;
WHEREAS, Section 1.16 of the Agreement provides for an agreement for
the election of the Company's Board of Directors;
WHEREAS, recently the Board of Directors of the Company approved an
amendment to Section 1.16 of the Agreement to provide for an agreement with
respect to Board of Directors' representation;
WHEREAS, the Company and the undersigned Securityholders desire that
such Section 1.16 be amended as set forth herein;
WHEREAS, the Board of Directors also recently approved the sale of
certain shares of the Company's Common Stock to Teijin Limited pursuant to that
certain Common Stock Purchase Agreement dated on or about February 14, 1992 (the
"Purchase Agreement");
WHEREAS, in connection with the issuance and sale of such shares, the
Company, Teijin Limited and the undersigned Securityholders desire that Teijin
Limited be granted the rights as well as the obligations of a Securityholder as
set forth in the Agreement;
WHEREAS, the Amendment to the Agreement requires the approval of the
Company and the Holders of at least 60% of the Registrable Securities.
61
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration,
receipt of which is hereby acknowledged, the company, Teijin Limited and the
undersigned Securityholders hereby agree that the Agreement shall be amended by
this Amendment as follows:
1. Section 1.16 of the Agreement shall be deleted in its entirety and
shall read as follows:
"1.16 Board of Directors. Each of the undersigned Investors
agrees until December 31, 1992 to vote its shares of capital stock in
favor of (a) each of the nine members of the Board of Directors of the
Company (as constituted immediately after the consummation of the
Merger, or any successor Director to any of such nine Directors, if
any, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board of Directors after a
Director's death or resignation) and (b) the tenth member of the Board
of Directors elected by the Board of Directors to fill the newly
created vacancy as of January 22, 1992 (or any successor to such
Director, if such Director shall have been selected by the Board of
Directors to fill a vacancy on the Board after such Director's
resignation or death.)"
2. Upon the issuance of the shares of Common Stock of the Company to
Teijin Limited pursuant to the Purchase Agreement, Teijin Limited shall be
deemed to be a party to the Agreement as if an original signatory thereto and
shall be entitled to all of the rights and agrees to be bound by all of the
obligations of an "Investor," a "Holder," a "Holder of Registrable Securities"
and a "Holder of Restricted Securities," as each such term is defined in the
Agreement.
3. Notwithstanding the foregoing, Teijin Limited shall not be subject
in any way to the terms of the Merger Agreement and Section 2.1 of the Agreement
shall apply to Teijin Limited as if it read as follows:
2.1 Restrictions on Transferability. The shares of Common
Stock of the Company held by the Holders (as hereinafter defined) shall
not be transferable, except upon the conditions specified in this
Section 2, which conditions are intended to ensure compliance with the
provisions of the Securities Act, or, in the case of Section 2.15
hereof, to assist in an orderly distribution, as the case may be. Each
holder will cause any proposed transferee of Restricted Securities (as
hereinafter defined) held by that holder to agree to take and hold
those securities subject to the provisions and upon the conditions
specified in this Section 2.
2.
62
4. The paragraph entitled "Registrable Securities" of Section 2.2 of
the Agreement shall be deleted in its entirety and shall read as follows:
""Registrable Securities" shall mean (i) shares of the
Company's Common Stock issued upon the automatic conversion of shares
of each of the Series A, Series B, Series C and Series D Preferred
Stock of the Company pursuant to an amendment to the Company's
Certificate of Incorporation concurrently with the consummation of the
Merger; (ii) shares of the Company's Common Stock issued to MSI common
stockholders pursuant to the Merger Agreement; (iii) shares of the
Company's Common Stock issuable upon the exercise of the Company's
Common Stock purchase warrants issued to Technology Funding Secured
Investors II ("TFSI") ; (iv) shares of the Company's Common Stock
issued to Teijin Limited pursuant to the Purchase Agreement; (v) shares
of the Company's Common Stock issuable upon the exercise of common
stock options and common stock purchase warrants issued by MSI to and
held by the former MSI optionholders and MSI warrantholders assumed by
the Company in connection with the Merger; and (vi) any shares of the
Company's Common Stock issued in respect of the Common Stock set forth
in clauses (i) - (v) immediately above pursuant to any stock split,
stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Agreement shall remain in full force and effect.
6. This Amendment may be executed in any number of counterparts, each
of which may be executed by less that all of the parties hereto and each of
which shall constitute one and the same instrument.
3.
63
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
POLYGEN CORPORATION
By: /s/ Xxxxxxx Xxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxx
___________________________
Title:Director Asia/Pacific
__________________________
SECURITYHOLDER
By:/s/ [ILLEGIBLE]
________________________________
Print Name: [ILLEGIBLE]
_____________________
TEIJIN LIMITED
By:
Name:___________________________
Title:__________________________
SECURITYHOLDER
By:/s/ XXXXXX X. XXXX
________________________________
Print Name: XXXXXX X. XXXX
_____________________
TEIJIN LIMITED
By:
Name:___________________________
Title:__________________________
SECURITYHOLDER
By: /s/ XXXXXXX X. XXXXXXX
________________________________
Print Name: EGC II LIMITED
________________________
PARTNERSHIP BY GENERAL PARTNER
BALTIMORE STREET CAPITAL III BY
GENERAL TEIJIN LIMITED PARTNER
XXXXXXX X. XXXXXXX.
TEIJIN LIMITED
By:
Name:___________________________
Title:__________________________
SECURITYHOLDER
Technology Funding Secured
Investors II, LP:
By: Technology Funding Inc.,
Managing General Partner
By:/s/ [ILLEGIBLE]
________________________________
Print Name:
_____________________
TEIJIN LIMITED
By:________________________________
Name:___________________________
Title:__________________________
64
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
POLYGEN CORPORATION
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
/s/ X.X. Xxxxx
By: International Business Machines
________________________________________
Print Name: Corporation
X. X. Xxxxx
_____________________________
IBM Director of Business Development
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
ABS VENTURES II LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxx
________________________________________
Print Name: Xxxxx Xxxxxxx
_____________________________
TEIJIN LIMITED
By:
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
Xxxxx Technology Associates Limited
Partnership
By: /s/ Xxxxxxx X. Franvo
________________________________________
Print Name: Xxxxxxx X. Franvo, General
_____________________________
Partner
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By:/s/ [ILLEGIBLE]
________________________________________
Print Name: Geocapital Ventures
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
65
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
POLYGEN CORPORATION
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ Xxxxxxx Xxxxxx
________________________________________
Print Name: Xxxxxxx Xxxxxx
_____________________________
For Xxxxxx Associates L.P.
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
MENLO VENTURES III
BY: Menlo Management Partners, its
General Partner
By: /s/ Xxxxxx X. Xxxxx
________________________________________
Print Name: Xxxxxx X. Xxxxx
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
GC & H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
________________________________________
Print Name: Xxxx X. Xxxxxxx
_____________________________
Executive Partner
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title: _________________________________
SECURITYHOLDER
By: /s/ Xxxxx Xxxxxx
________________________________________
Print Name: Xxxxx Xxxxxx
_____________________________
TEIJIN LIMITED
BY:________________________________________
Name:___________________________________
Title:__________________________________
66
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxx X. Xxxxxxxx
________________________________________
Print Name: Xxxxx X. Xxxxxxxx
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ [ILLEGIBLE]
________________________________________
Print Name: [ILLEGIBLE]
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ [ILLEGIBLE]
________________________________________
Print Name: [ILLEGIBLE]
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
SIF Limited Partnership
c/o Morgan Xxxxxxx
Venture Capital, Inc.
By: /s/ Xxx xx Xxxxxx
________________________________________
Print Name: Xxx xx Xxxxxx
_____________________________
Vice President
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
67
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER:
Xxxxxx Xxxxxxx Venture Capital Fund, Inc.
By: /s/ Xxx xx Xxxxxx
________________________________________
Print Name: Xxx xx Xxxxxx
_____________________________
President
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
Boston Safe Deposit and Trust Company
By: /s/ Xxxx Xxx Bresnanan
________________________________________
Print Name: Xxxx Xxx Bresnanan
_____________________________
TEIJIN LIMITED
By:
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
Banc Boston Ventures Inc.
By: /s/ Xxxxxx X. Xxxxx
________________________________________
Print Name:_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
[ILLEGIBLE]
By: /s/ [ILLEGIBLE]
________________________________________
Print Name: [ILLEGIBLE]
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
68
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxx X. Xxxxxxxxx
________________________________________
Print Name: INNOVEN III CORP.
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ Xxxx X. Xxxxxxxxx
________________________________________
Print Name: INNOVEN III CORP.
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
LAR PARTNERS
By: /s/ Xxxx X. Xxxxxxxxx
________________________________________
Print Name: LAR PARTNERS
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
Transitions Two, Limited Partnership
By: /s/ XXXXXX X. XXXXXX
________________________________________
Print Name: XXXXXX X. XXXXXX
_____________________________
VICE PRESIDENT
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
69
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
The XxxXxxx-Xxxxxxxxxx Corporation
By: /s/ Xxxxx X. Xxxxx
________________________________________
Print Name: Xxxxx X. Xxxxx for
_____________________________
Xxxxxxx X.XxxXxxx
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ XXXXX XXXXX
________________________________________
Print Name: XXXXX XXXXX
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ XXXXX XXXXX
________________________________________
Print Name: XXXXX XXXXX
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ XXXXXX X. CABLE
________________________________________
Print Name: XXXXXX X. CABLE
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
70
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: /s/ XXXXX XXXXX
________________________________________
Print Name: XXXXX XXXXX
_____________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ Xxxxx Xxxxxxx
_____________________________________
Print Name: /s/ Xxxxx Xxxxxxx
_________________________
TEIJIN LIMITED
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECURITYHOLDER
By: /s/ Xxxxxxx Xxxxxxx
[s] Xxxxxx Xxxxxx Xxxxxxx
______________________________________
Print Name: Xxxxxxx Xxxxxxx/
Xxxxxx Xxxxxx Xxxxxxx
______________________________
TEIJIN LIMITED
By:________________________________________
Name:___________________________________
Title:__________________________________
SECURITYHOLDER
By: /s/ Xxxx X. Laccarve
______________________________________
Print Name: Xxxx X. Laccarve, Trustee
For the Laccarve Living Trust
U/A Dated 22 February 1991
______________________________________
TEIJIN LIMITED
By:_______________________________________
Name:__________________________________
Title:_________________________________
71
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxxx X. Xxxxxxxx
__________________________
Print Name: X.X. Xxxxxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxx X. Xxxxxx
__________________________
Print Name: Xxxxx X. Xxxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Cun Feng Fan
__________________________
Print Name: Cun Feng Fan
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Print Name: /s/ Xxxxxxx X. Xxxxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
72
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxx Xxx
__________________________
Print Name: Xxxxx Xxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxx Xxxxxx
__________________________
Print Name: Xxxxx Xxxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxxxx Xxxxx
__________________________
Print Name: Xxxxxx Xxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
SECURITYHOLDER
By: /s/ Xxxx Xxxxxxxxxxx
__________________________
Print Name: Xxxx Xxxxxxxxxxx
__________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
73
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ______________________________
Name:_________________________
Title: _______________________
SECURITYHOLDER
By: /s/ Xxxxxxxxx X. Xxxxxxx
_______________________________
Print Name: Xxxxxxxxx X. Xxxxxxx
_______________________
TEIJIN LIMITED
By: ____________________________
Name: ____________________________
Title: ___________________________
POLYGEN CORPORATION
By: /s/ [Illegible]
_____________________________
Name: /s/ [Illegible]
___________________________
Title: Systems Engineer
__________________________
SECURITYHOLDER
By:
______________________________
Print Name:
______________________
TEIJIN LIMITED
By: __________________
Name: __________________
Title: _________________
74
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as of the date first above written.
POLYGEN CORPORATION
By: ____________________________
Name:____________________________
Title:___________________________
SECURITYHOLDER
By: /s/ Xxxx Xxxx Xxx
____________________________
Name: Xxxx Xxxx Xxx
___________________________
TEIJIN LIMITED
By: ___________________________
Name: ___________________________
Title: __________________________
SECURITYHOLDER
By: /s/ X. X. Xxxxxxxx
______________________________
Print Name: X. X. Xxxxxxxx
______________________
TEIJIN LIMITED
By: ___________________________
Name: ___________________________
Title:___________________________
SECURITYHOLDER
By: /s/ Xxxx Xxxxx
_____________________________
Print Name: Xxxx Xxxxx
_____________________
TEIJIN LIMITED
By: _____________________________
Name: ___________________________
Title:___________________________
SECURITYHOLDER
By: /s/ Xxx X. Xxxxx
_____________________________
Print Name: Xxx X. Xxxxx
______________________
TEIJIN LIMITED
By:_____________________________
Name: __________________________
Title:__________________________
75
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: /s/ Xxxxxxx Xxxxxx
_____________________________
Name: Xxxxxxx X. Xxxxxx
___________________________
Title: Director Asia/Pacific
__________________________
SECURITYHOLDER
By: /s/ Xxxxxxx Xxxxxx
_____________________________
Print Name: Xxxxxxx X. Xxxxxx
_____________________
TEIJIN LIMITED
BY: _____________________________
Name: _______________________
Title: ______________________
SECURITYHOLDER
By: /s/ Xxxxxxx X. Xxxxx
______________________________
Print Name: Xxxxxxx X. Xxxxx
_______________________
TEIJIN LIMITED
By: _____________________________
Name: ___________________________
Title: __________________________
SECURITYHOLDER
By: /s/ Xxxx X. Xxxxxxxx
____________________________
Print Name: Xxxx X. Xxxxxxxx
___________________________
TEIJIN LIMITED
By: ____________________________
Name: ___________________________
Title:___________________________
SECURITYHOLDER
By: [s] Xxxxx Xxxx
_____________________________
Print Name: [s] Xxxxx Xxxx
_____________________
TEIJIN LIMITED
By:______________________________
Name: ___________________________
Title: __________________________
76
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: _______________________________________
Name:______________________________________
Title: ____________________________________
SECURITYHOLDER
By: [s] Illegible
_______________________________________
Print Name: [s] Illegible
_______________________________
TEIJIN LIMITED
By:________________________________________
Name: _____________________________________
Title: ____________________________________
SECURITYHOLDER
By: [s] X. Xxxxxx
_______________________________________
Print Name: Xx. X. Xxxxxx
_______________________________
TEIJIN LIMITED
By:________________________________________
Name: _____________________________________
Title: ____________________________________
SECURITYHOLDER
By: [s] Xxxxxx Xxxxxxx Silicon Valley Bank
_______________________________________
Print Name: Xxxxxx Xxxxxxx
________________________________
TEIJIN LIMITED
By:________________________________________
Name: _____________________________________
Title: ____________________________________
SECURITYHOLDER
By: [s] Illegible
_______________________________________
Print Name: [s] Illegible
_______________________________
TEIJIN LIMITED
By:________________________________________
Name: _____________________________________
Title: ____________________________________
77
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the date first above written.
POLYGEN CORPORATION
By: ________________________
Name:___________________
Title: _________________
SECURITYHOLDER
By: [s] Gemma J. Rocchette
_________________________
Print Name: Xxxxx X. Xxxxxxxx
__________________
TEIJIN LIMITED
By:__________________________
Name: _______________________
Title: ______________________
SECURITYHOLDER
Porosan Group
By: /s/ Xxxxx X. Xxxxx
_______________________
Print Name: Xxxxx X. Xxxxx
____________
TEIJIN LIMITED
By:________________________
Name: ____________
Title: ___________
SECURITYHOLDER
Porosan Group, Inc.
By: /s/ Xxxxx X. Xxxxx
_______________________
Print Name: Xxxxx X. Xxxxx
____________
TEIJIN LIMITED
By:________________________
Name: ____________
Title: ___________
SECURITYHOLDER
By: [s] Illegible
_______________________
Print Name:
________________
TEIJIN LIMITED
By:_______________________
Name: _____________________
Title: ____________________
78
SECOND AMENDMENT TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Second Amendment to Amended and Restated Investor Rights
Agreement (the "Second Amendment") is made this 14 day of July, 1994, pursuant
to paragraph 3.3. of the Amended and Restated Investor Rights Agreement dated
as of October 18, 1991 (the "Investor Rights Agreement") by and among Molecular
Simulations Incorporated, a Delaware corporation (the "Company") and various
investors in the Company, as amended on February 14, 1992. All terms
capitalized but not otherwise defined herein shall have the meanings ascribed
to them in the Investor Rights Agreement. The undersigned securityholders
hereby agree as follows:
RECITALS
WHEREAS, on October 18, 1991, certain of the securityholders listed
below (the "MSI Securityholders") and the Company entered into the Investor
Rights Agreement to provide for certain registration, information and other
rights set forth therein for such MSI Securityholders;
WHEREAS, on February 14, 1992, the Company, the MSI Securityholders and
Teijin Limited entered into an Amendment to the Investor Rights Agreement for
purposes of adding Teijin Limited as a party to the Investor Rights Agreement;
WHEREAS, on May 27, 1994, the Company, BioCAD Corporation and certain
other parties entered into an Agreement and Plan of Merger (the "BioCAD Merger
Agreement") pursuant to which BioCAD Corporation will become a wholly-owned
subsidiary of the Company and certain former stockholders of BioCAD Corporation
(the "BioCAD Stockholders") will receive an aggregate of approximately 6.7
million shares of the Company's Common Stock;
WHEREAS, in connection with the issuance of such shares pursuant to the
terms of the BioCAD Merger Agreement, the Company, the BioCAD Stockholders and
the undersigned MSI Securityholders desire that the BioCAD Stockholders be
granted the rights as well as the obligations of an MSI Securityholder as set
forth in the Investor Rights Agreement;
WHEREAS, the Second Amendment requires the approval of the Company and
the Holders of at least 60% of the Registrable Securities.
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration,
receipt of which is hereby acknowledged, the Company, the BioCAD Stockholders
and the undersigned MSI Securityholders hereby agree that the Investor Rights
Agreement shall be amended by this Second Amendment as follows:
79
1. Upon the issuance of the shares of Common Stock of the Company (the
"MSI Shares") to the BioCAD Stockholders pursuant to the BioCAD Merger
Agreement, each of the BioCAD Stockholders shall become a party to the Investor
Rights Agreement and shall be entitled to all of the rights (including all
rights under Section 1 of the Investor Rights Agreement to which such BioCAD
Stockholder may be entitled by his or its ownership of stock in the Company)
and agrees to be bound by all of the obligations of an "Investor", a "Holder",
a "Holder of Registrable Securities", and a "Holder of Restricted Securities,"
as each such term is defined in the Investor Rights Agreement.
2. Section 2.1 of the Investor Rights Agreement shall apply to the
BioCAD Stockholders as if it read as follows:
2.1 Restrictions on Transferability. All shares of Common Stock
of the Company held by the Holders (as hereinafter defined), including
the MSI Shares, shall not be transferable, except upon the conditions
specified in this Section 2, which conditions are intended to ensure
compliance with the provisions of the Securities Act, or, in the case of
Section 2.15 hereof, to assist in an orderly distribution, as the case
may be. Each Holder will cause any proposed transferee of Restricted
Securities (as hereinafter defined) held by that Holder to agree to take
and hold those securities subject to the provisions and upon the
conditions specified in this Section 2.
3. The definition of "Restricted Securities" contained in Section 2.2
of Investor Rights Agreement shall be deemed to include the MSI Shares.
4. The paragraph entitled "Registrable Securities" of Section 2.2 of
the Agreement shall be deleted in its entirety and shall read as follows:
"Registrable Securities" shall mean (i) shares of the Company's
Common Stock issued upon the automatic conversion of shares of each of
the Series A, Series B, Series C and Series D Preferred Stock of the
Company pursuant to an amendment to the Company's Certificate of
Incorporation concurrently with the consummation of the Merger; (ii)
shares of the Company's Common Stock issued to MSI common stockholders
pursuant to the Merger Agreement; (iii) shares of the Company's Common
Stock issuable upon the exercise of the Company's Common Stock purchase
warrants issued to Technology Funding Secured Investors II ("TFSI");
(iv) shares of the Company's Common Stock issued to Teijin Limited
pursuant to the Common Stock Purchase Agreement between the Company and
Teijin Limited dated February 14, 1992; (v) shares of the Company's
Common Stock issuable upon the exercise of common stock options and
common stock purchase warrants issued by MSI to and held by the former
MSI optionholders and MSI warrantholders assumed by the Company in
connection with the Merger; (vi) the shares of
80
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------------
Name: Xxxxxxx X. Xxxxxx Printed Name of MSI Securityholder
---------------------------------- ---------------------------------------
Title: President By: ___________________________________
---------------------------------- Name: _________________________________
Title: ________________________________
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
---------------------------------------
By: ___________________________________
Name: _________________________________
Title: ________________________________
81
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
Banc Boston Ventures, Inc.
By: ---------------------------------------
------------------------------- Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/Xxxxxx X. Xxxxx
Title: -----------------------------------
---------------------------- Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Director
--------------------------------
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
3
82
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: Xxxxx Xxxxxx
------------------------------- ---------------------------------------
Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/Xxxxx Xxxxxx
---------------------------------
Title:
----------------------------- Name:
---------------------------------
Title:
--------------------------------
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
3
83
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force and
effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By:________________________________ /s/ XXXXXXX X. WALES
________________________________________
Printed Name of MSI Securityholder
Name:______________________________
By: XXXXXXX X. WALES
________________________________________
Title:_____________________________
Name:___________________________________
Title:__________________________________
BIOCAD STOCKHOLDERS:
________________________________________
Printed Name of BioCAD Stockholder
By:_____________________________________
Name:___________________________________
Title:__________________________________
3
84
the Company's Common Stock issued to the BioCAD Stockholder pursuant to the
Agreement and Plan of Merger dated May 27, 1994 by and among the Company,
MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and (vii) any
shares of the Company's Common Stock issued in respect of the Common Stock
set forth in clauses (i)-(vi) immediately above pursuant to any stock
split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS MSI SECURITYHOLDERS:
INCORPORATED
By: Xxxxxx Associates, L.P. (California Partners)
------------------------ ------------------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxxxx Xxxxxx
---------------------- ---------------------------------------------
Title: Name: Xxxxxxx Xxxxxx
--------------------- ------------------------------------------
Title: General Partner
------------------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
3
85
the Company's Common Stock issued to the BioCAD Stockholders pursuant
to the Agreement and Plan of Merger dated May 27, 1994 by and among
the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI;
and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i) - (vi) immediately above
pursuant to any stock split, stock dividend, recapitalization or similar
event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force and
effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
/s/ Xxxxx Xxxxx
By: ______________________________ __________________________________
Printed Name of MSI Securityholder
By: /s/ Xxxxx Xxxxx
Name: ____________________________ __________________________________
Name: /s/ Xxxxx Xxxxx
Title: ___________________________ Title: ___________________________
BIOCAD STOCKHOLDERS:
__________________________________
Printed Name of BioCAD Stockholder
__________________________________
By: ______________________________
Name: ____________________________
Title: ___________________________
3
86
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force and
effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: American Consulting Corporation
-------------------------------- --------------------------------------
c/o Weidenbaum, Ryder & Co. Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/ X. Xxxxx
-----------------------------------
Title: Name: X. Xxxxx
----------------------------- ---------------------------------
Title: President
---------------------------------
BIOCAD STOCKHOLDERS:
--------------------------------------
Printed Name of BioCAD Stockholder
By:
----------------------------------
Name:
---------------------------------
Title:
-------------------------------
87
pursuant to the Agreement and Plan of merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force and
effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
Printed Name of MSI Securityholder
By: ______________________________
By: Menlo Management Partners,
Name: ____________________________ its General Partner
Title: ___________________________ Name: /s/ Xxxxxx X. Xxxxx
----------------------------
Title: General Partner
----------------------------
BIOCAD STOCKHOLDERS:
___________________________________
Printed Name of BioCAD Stockholder
By: _______________________________
Name: _____________________________
Title: ____________________________
88
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: By: /s/ Xxxxxxx Xxxxxxx III
--------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxx III.
Name: By: /s/ Xxxxxx Xxxxxx Xxxxxx Xxxxxx
------------------------------- ----------------------------------
Title: Xxxxxx Xxxxxx Xxxxxx Xxxxxxx
-------------------------------
BIOCAD STOCKHOLDERS:
--------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
89
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i)-(vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: CH Partners IV
------------------------------ Printed Name of MSI Securityholder
Name:
---------------------------- By: Xxxxxx X. Cable
Title: -----------------------------
---------------------------
Name: Xxxxxx X. Cable
---------------------------
Title: GP
--------------------------
BIOCAD STOCKHOLDERS:
---------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
90
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI;
and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i) - (vi) immediately above
pursuant to any stock split, stock dividend, recapitalization or similar
event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force and
effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: ______________________________ _____________________________________
Printed Name of MSI Securityholder
By: /s/ X. Xxxx Xxxxx
Name: ____________________________ _____________________________________
Name: X. Xxxx Xxxxx
Title: ___________________________ _____________________________________
Title: General Partner
Charter Ventures
_____________________________________
BIOCAD STOCKHOLDERS:
_____________________________________
Printed Name of BioCAD Stockholder
By: _________________________________
Name: _______________________________
Title: ______________________________
3
91
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: XXXXX X. XXXXXX
------------------------------ --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxx X. Xxxxxx
---------------------------- ---------------------------------
Title: Name:
--------------------------- -------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
92
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: CH Investment Partners
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxxx X. Cable
---------------------------- ---------------------------------
Title: Name: Xxxxxx X. Cable
--------------------------- -------------------------------
Title: GP
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
93
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect to
the Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: Teijin Limited
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- ---------------------------------
Title: Name: Xxxxxxxx Xxxxxxxx
--------------------------- -------------------------------
Title: Manager Information Systems
Business Division
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
94
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
Xxxxxx X. Xxxxxxx
By: ----------------------------------
------------------------------ Printed Name of MSI Securityholder
Name:
---------------------------- By:
Title: -----------------------------
---------------------------
Name: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title:
--------------------------
BIOCAD STOCKHOLDERS:
---------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------
Name:
---------------------------
Title:
---------------------------
95
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: XXXXX X. XXXXXXX
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxx X. Xxxxxxx
---------------------------- ---------------------------------
Title: Name:
--------------------------- -------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
96
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect to
the Common Stock set for in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: XxxXxxx Xxxxxxxxxx Corporation
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxx X. Xxxxx
---------------------------- ---------------------------------
Title: Name: Xxxxx X. Xxxxx
--------------------------- -------------------------------
Title: Chief Financial Officer
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
97
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: Xxxxx Xxxxxx
------------------------------- ----------------------------------
Name: Printed Name of MSI Securityholder
-----------------------------
Title: By: /s/ XXXXX XXXXXX
---------------------------- --------------------------------
Name:
------------------------------
Title:
-----------------------------
BIOCAD STOCKHOLDERS:
-----------------------------------
Printed Name of BioCAD Stockholder
By:
--------------------------------
Name:
------------------------------
Title:
3
98
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: Xxxx Xxxxxx
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxx Xxxxxx
---------------------------- ---------------------------------
Title: Name:
--------------------------- -------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: XXXXXX X. XXXXXXXX
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ X. X. Xxxxxxxx
---------------------------- ---------------------------------
Title: Name: XXXXXX X. XXXXXXXX
--------------------------- -------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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100
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: ABS Ventures II Limited Partnership
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxx Xxxxxxx
---------------------------- ---------------------------------
Title: Name: ABS Ventures II Limited Partnership
--------------------------- -------------------------------
by Xxxxx Xxxxxxx
Title: Managing Partner
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
101
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i)-(vi) immediately
above pursuant to any stock split, stock dividend, recapitalization or
similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
Xxxxx Technology Associates
Limited Partnership
By: ------------------------------
Partnership Printed Name of MSI Securityholder
Name:
---------------------------- By: /s/Xxxxx Technology Associates
Limited Partnership
Title: -----------------------------------
--------------------------- Name: Xxxxx Xxxxxxx
---------------------------------------
Title: General Partner
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
102
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
KME Venture Capital,
Limited Partnerhsip
By: Safat Ltd., its General Partner
By: ------------------------------ ---------------------------------------
Printed Name of MSI Securityholder
Name: ----------------------------
By: /s/Xxxxxxxxxx Xx-Xxxxxx
Title: --------------------------- -----------------------------------
Name: Xxxxxxxxxx Xx-Xxxxxx
---------------------------------------
Title: Attorney-In-Fact
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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103
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
GC&H INVESTMENTS
By:
------------------------------- ---------------------------------------
Name: Printed Name of MSI Securityholder
-----------------------------
Title: By: /s/Xxxx X. Xxxxxxx
---------------------------- -----------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------------
Title: Executive Partner
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
---------------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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104
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By:
------------------------------- ---------------------------------------
Printed Name of MSI Securityholder
Name:
-----------------------------
By: /s/Xxxxxxx X. Xxxx
Title: -----------------------------------
---------------------------- Name: EGC II LIMITED PARTNERSHIP BY
GENERAL PARTNER
BALTIMORE STREET CAPITAL III
-----------------------------------------
Title: BY GENERAL PARTNER XXXXXXX X. XXXX
-----------------------------------------
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
---------------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
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105
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i)-(vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
/s/ Xxxxxxx X. Xxxxx
By: ______________________________ ---------------------------------------
Printed Name of MSI Securityholder
Name: ____________________________
By: /s/ Xxxxxxx X. Xxxxx 6-27-94
Title: ___________________________ -----------------------------------
Name: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: ________________________________
BIOCAD STOCKHOLDERS:
---------------------------------------
Printed Name of BioCAD Stockholder
By:
-----------------------------------
Name:
--------------------------------
Title:
-------------------------------
3
106
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect to the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
MELLON BANK, N.A. MASTER TRUSTEE FOR
XXXX ATLANTIC MASTER PENSION TRUST
(AS DIRECTED BY CHANCELLOR TRUST
BY: COMPANY INVESTMENT MANAGER)
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxx X. Xxxxxx
---------------------------- ---------------------------------
Title: Name: XXXXX X. XXXXXX
--------------------------- -------------------------------
Title: ASSOCIATE COUNSEL
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
The Decision to participate in this investment, any representation made herein
by the participant, and any holders taken hereunder by the participant has/have
been made solely at the direction of the investment fiduciary who has sole
investment discretion with respect to this investment.
[EXAMINED AND
APPROVED
AS TO FORM
/S/ BTA
----------------
LEGAL DEPARTMENT SEAL]
3
107
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By:
------------------------------- Mellon Bank, N.A. Master trustee for
Name: Xxxx Atlantic Master Pension Trust
----------------------------- (as directed by Chancellor Trust
Title: Company, Investment Manager)
---------------------------- ----------------------------------
Printed Name of MSI Securityholder
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: XXXXX X. XXXXXX
------------------------------
Title: ASSOCIATE COUNSEL
-----------------------------
BIOCAD STOCKHOLDERS:
-----------------------------------
Printed Name of BioCAD Stockholder
By:
--------------------------------
Name:
------------------------------
Title:
The decision to participate in this investment, any
representations made herein by the participant, and any
actions taken hereunder by the participant has/have been
made solely at the direction of the investment fiduciary who
has sole investment discretion with respect to this
investment.
[EXAMINED AND APPROVED
AS TO FORM
/s/ BON
------------------
LEGAL DEPARTMENT SEAL]
3
108
the Company's Common Stock issued to the BioCAD Stockholders
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: LYNXVALE LIMITED
------------------------------ -------------------------------------------
Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/ X. Xxxxxx
---------------------------------------
Title:
---------------------------- Name: Xxx. X.X. Xxxxxx
-------------------------------------
Title: Director
------------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
3
109
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and
provisions of the Investor Rights Agreement shall remain in full force
and effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the
parties hereto and each of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By:________________________________ /s/ Xxxx X. Xxxxxxxx, Trustee
____________________________________
Printed Name of MSI Securityholder 7/5/9L
Name:______________________________
By:__________________________________
Title:______________________________
Name: XXXX X. XXXXXXXX
_____________________________________
Title: TRUSTEE FOR THE LACCABUE
LIVING TRUST U/A DATED 2/21/91
BIOCAD STOCKHOLDERS:
_____________________________________
Printed Name of BioCAD Stockholder
By:__________________________________
Name:________________________________
Title:_________________________________
3
110
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forTH in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
CONTINENTAL BANK NATIONAL ASSOCIATION
AS CUSTODIAN, FOR THE POLICEMEN'S
ANNUITY AND BENEFIT FUND OF CHICAGO,
AT THE DIRECTION OF CHANCELLOR CAPITAL
By: MANAGEMENT, INC. INVESTMENT MANAGER.
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name:
---------------------------- By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Title:
--------------------------- Name: XXXXXXX X. XXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
111
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: InnoVen IV Corporation
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name:
---------------------------- By: /s/ Xxxxxx X. Lodge
---------------------------------
Title:
--------------------------- Name: Xxxxxx X. Lodge
-------------------------------
Title: Asst. Treasurer
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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112
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: InnoVen III Corp
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name:
---------------------------- By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Title:
--------------------------- Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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113
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect of the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: SIF Limited Partnership
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name:
---------------------------- By: /s/ Xxx xx Xxxxxx
---------------------------------
Title:
--------------------------- Name:
-------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
114
the Company's Common Stock issued to the BioCAD Stockholders pursuant to
the Agreement and Plan of Merger dated May 27, 1994 by and among the
Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx VI; and
(vii) any shares of the Company's Common Stock issued in respect to the
Common Stock set forth in clauses (i) - (vi) immediately above pursuant to
any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: Xxxxxx Xxxxxxx Venture Capital Fund L.P.
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxx xx Xxxxxx
---------------------------- ---------------------------------
Title: Name:
--------------------------- -------------------------------
Title:
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
115
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: International Business Machines Corporation
------------------------------ -------------------------------------------
Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title:
---------------------------- Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: IBM Assistant Controller
------------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
116
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and
Xxxxxxxx VI; and (vii) any shares of the Company's Common Stock issued
in respect of the Common Stock set forth in clauses (i) - (vi)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto and each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: GeoCapital II
------------------------------- Printed Name of MSI Securityholder
Name:
----------------------------- By: /s/ XXXXXXX X. XXXXXXXX
Title: --------------------------------
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: General Partner
-----------------------------
BIOCAD STOCKHOLDERS:
-----------------------------------
Printed Name of BioCAD Stockholder
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
117
pursuant to the Agreement and Plan of Merger dated May 27, 1994 by and
among the Company, MSI Merger Corporation, BioCAD Corporation and Xxxxxxxx
VI; and (vii) any shares of the Company's Common Stock issued in respect of
the Common Stock set forth in clauses (i) - (vi) immediately above pursuant
to any stock split, stock dividend, recapitalization or similar event."
5. Except as otherwise amended herein, the other terms and provisions of
the Investor Rights Agreement shall remain in full force and effect.
6. This Second Amendment may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: GeoCapital Ventures
------------------------------- --------------------------------------
Printed Name of MSI Securityholder
Name: By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- ---------------------------------
Title: Name: Xxxxxxx X. Xxxxxxxx
--------------------------- -------------------------------
Title: General Partner
------------------------------
BIOCAD STOCKHOLDERS:
-------------------------------------
Printed Name of BioCAD Stockholder
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
118
AMENDMENT NO. 3 TO AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Amendment No. 3 to Amended and Restated Investor Rights Agreement
("Amendment No. 3") is made this 29th day of September, 1994, pursuant to
paragraph 3.3 of the Amended and Restated Investor Rights Agreement dated as of
October 18, 1991 (the "Investor Rights Agreement") by and among Molecular
Simulations Incorporated, a Delaware corporation (the "Company") and various
investors in the Company, as amended on February 14, 1992 and July 14, 1994. All
terms capitalized but not otherwise defined herein shall have the meanings
ascribed to them in the Investor Rights Agreement. The undersigned
securityholders hereby agree as follows:
RECITALS
WHEREAS, on October 18, 1991, certain of the securityholders listed
below (the "MSI Securityholders") and the Company entered into the Investor
Rights Agreement to provide for certain registration, information and other
rights set forth therein for such MSI Securityholders;
WHEREAS, on February 14, 1992, the Company, the MSI Securityholders and
Teijin Limited entered into an Amendment to the Investor Rights Agreement for
purposes of adding Teijin Limited as a party to the Investor Rights Agreement;
WHEREAS, on July 14, 1994, the Company, the MSI Securityholders and
certain former stockholders of BioCAD Corporation entered into a Second
Amendment to the Investor Rights Agreement for purposes of adding such former
stockholders of BioCAD Corporation as parties to the Investor Rights Agreement;
WHEREAS, concurrent with the execution of this Amendment No. 3, the
Company and X. X. Xxxx & Co., L.P. and/or its affiliates (the "Purchasers") are
entering into a Series A Convertible Preferred Stock Purchase Agreement (the
"Series A Purchase Agreement") pursuant to which the Purchasers will purchase an
aggregate of 2,222,223 shares of the Company's Series A Convertible Preferred
Stock (the "Series A Preferred Shares");
WHEREAS, in connection with the issuance of such Series A Preferred
Shares pursuant to the terms of the Series A Purchase Agreement, the Company,
the Purchasers and the undersigned MSI Securityholders desire that each of the
Purchasers be granted the rights as well as the obligations of an MSI
Securityholder as set forth in the Investor Rights Agreement;
WHEREAS, this Amendment No. 3 requires the approval of the Company
and the Holders of at least 60% of the Registrable Securities.
1
119
NOW, THEREFORE, BE IT RESOLVED, for good and valuable consideration,
receipt of which is hereby acknowledged, the Company, the Purchasers and the
undersigned MSI Securityholders hereby agree that the Investor Rights Agreement
shall be amended by this Amendment No.3 as follows:
1. Upon the issuance of the Series A Preferred Shares to the Purchasers
pursuant to the Series A Purchase Agreement, each Purchaser shall become a party
to the Investor Rights Agreement and shall be entitled to all of the rights and
agrees to be bound by all of the obligations of an "Investor", a "Holder," a
"Holder of Registrable Securities" and a "Holder of Restricted Securities," as
each such term is defined in the Investor Rights Agreement. For purposes of the
Investor Rights Agreement, each Purchaser shall be deemed to be a "Significant
Rightsholder" so long as it owns an aggregate of at least 26,666 Series A
Preferred Shares and/or shares of the Company's Common Stock (subject to
adjustment for stock splits, stock dividends, reverse stock splits,
recapitalizations and the like).
2. A new Section 1.18 shall be added to the Investor Rights Agreement
as follows:
"1.18 Observer Rights. So long as X. X. Xxxx & Co., L.P.
and/or its affiliates ("D. E. Shaw") continue to own an aggregate of at
least 250,000 shares of the Company's Series A Convertible Preferred
Stock, until the time of the effectiveness of the Company's
registration statement covering the Company's initial public offering
of equity securities with gross proceeds to the Company of at least
$7,500,000 (an "IPO"), D. E. Shaw (or its representative) shall have
the right to attend all meetings of the Company's Board of Directors in
a nonvoting observer capacity, to receive notice of such meetings and
to receive the information provided by the Company to the Company's
Board of Directors; provided, however, that D. E. Shaw (or its
representative) shall agree to hold all information so provided in
accordance with the terms of the Mutual Non-Disclosure Agreement dated
July 7, 1994; and, provided further, that the Company reserves the
right to exclude D. E. Shaw (or its representative) from any meeting or
portion thereof to which attendance by D. E. Shaw (or its
representative) would adversely affect the attorney-client privilege
between the Company and its counsel."
3. Section 2.1 of the Investor Rights Agreement shall apply to each
Purchaser as if it read as follows:
2.1 Restrictions on Transferability. All shares of capital
stock of the Company held by the Holders (as hereinafter defined),
including the Series A Preferred Shares and the shares of the Company's
Common Stock issuable upon conversion of the Series A Preferred Shares,
shall not be transferable, except upon the conditions specified in this
Section 2, which conditions are intended to ensure compliance with the
provisions of the Securities Act, or, in the case of Section 2.15
hereof, to assist in an orderly distribution, as the case may be. Each
2
120
Holder will cause any proposed transferee of Restricted Securities (as
hereinafter defined) held by that Holder to agree to take and hold
those securities subject to the provisions and upon the conditions
specified in this Section 2.
4. The definition of "Restricted Securities" contained in Section 2.2
of Investor Rights Agreement shall be deemed to include the Series A Preferred
Shares and the shares of the Company's Common Stock issuable upon conversion of
the Series A Preferred Shares.
5. The paragraph entitled "Registrable Securities" of Section 2.2 of
the Agreement shall be deleted in its entirety and shall read as follows:
"Registrable Securities" shall mean (i) shares of the
Company's Common Stock issued upon the automatic conversion of shares
of each of the Series A, Series B, Series C and Series D Preferred
Stock of the Company pursuant to an amendment to the Company's
Certificate of Incorporation concurrently with the consummation of the
Merger; (ii) shares of the Company's Common Stock issued to MSI common
stockholders pursuant to the Merger Agreement; (iii) shares of the
Company's Common Stock issuable upon the exercise of the Company's
Common Stock purchase warrants issued to Technology Funding Secured
Investors II ("TFSI"); (iv) shares of the Company's Common Stock issued
to Teijin Limited pursuant to the Common Stock Purchase Agreement
between the Company and Teijin Limited dated February 14, 1992; (v)
shares of the Company's Common Stock issuable upon the exercise of
common stock options and common stock purchase warrants issued by MSI
to and held by the former MSI optionholders and MSI warrantholders
assumed by the Company in connection with the Merger; (vi) the shares
of the Company's Common Stock issued to the former stockholders of
BioCAD Corporation pursuant to the Agreement and Plan of Merger dated
May 27, 1994 by and among the Company, MSI Merger Corporation, BioCAD
Corporation, Xxxxxxxx VI and Xxxxxxxx Associates, provided that such
former stockholders of BioCAD Corporation are parties to this
Agreement; (vii) the shares of the Company's Common Stock issuable upon
conversion of the Company's Series A Convertible Preferred Stock issued
to D. E. Shaw pursuant to the Series A Convertible Preferred Stock
Purchase Agreement dated September _, 1994 between the Company and D.
E. Shaw; and (viii) any shares of the Company s Common Stock issued in
respect of the Common Stock set forth in clauses (i) - (vii)
immediately above pursuant to any stock split, stock dividend,
recapitalization or similar event."
6. Except as otherwise amended herein, the other terms and provisions
of the Investor Rights Agreement shall remain in full force and effect.
3
121
7. This Amendment No. 3 may be executed in any number of counterparts,
each of which may be executed by less than all of the parties hereto and each of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
No. 3 as of the date first above written.
MOLECULAR SIMULATIONS INCORPORATED MSI SECURITYHOLDERS:
By: /s/ Xxxxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxxx-Xxxxx
------------------------------- -----------------------------------
Printed Name of MSI Securityholder
Name: Xxxxxxx X. Xxxxxx
----------------- By: Sept. 25, 1996
--------------------------------
Title: President & CEO
--------------- Name: Xxxxxxxx Xxxxxxxxx-Xxxxx
-----------------------------
Title:
-----------------------------
PURCHASERS: MSI SECURITYHOLDERS:
X.X.XXXX INVESTMENT GROUP, L.P. Xxxxx Xxxxx
-----------------------------------
By: X. X. Xxxx & Co., L.P. Printed Name of MSI Securityholder
Its General Partner
By: /s/ Xxxxx Xxxxx
By: X.X. Xxxx & Co., Inc. --------------------------------
Its General Partner
Name:
By: /s/ Xxxxx X Xxxx ------------------------------
------------------------------
Xxxxx X. Xxxx, President Title:
-----------------------------
122
MSI SECURITYHOLDERS:
XxxXxxx Xxxxxxxxxx Corp.
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Title: Chief Financial Officer
-----------------------------
*255,032 SHARES*
MSI SECURITYHOLDERS:
BOSTON SAFE DEPOSIT & TRUST COMPANY
AS TRUSTEE FOR US WEST MAST TRUST
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ XXXXXXX X. XXXXXXX XX.
--------------------------------
Name:
------------------------------
Title: OFFICER
-----------------------------
SEPTEMBER 20, 1994
MSI SECURITYHOLDERS:
LYNXVALE LTD.
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ XXX. X.X. XXXXXX
--------------------------------
Name: XXX. X.X. XXXXXX
------------------------------
Title: DIRECTOR
-----------------------------
MCI SECURITYHOLDERS:
Banc Boston Ventures, Inc.
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title: Director
-----------------------------
123
MSI SECURITYHOLDERS:
InnoVen IV Corporation
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Xxxxxx X. Lodge
--------------------------------
Name: Xxxxxx X. Lodge
------------------------------
Title: Assistant Treasurer
-----------------------------
MSI SECURITYHOLDERS:
Xxxxxxx X. Xxxx
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Xxxxxxx X. Xxxx 9/21/94
--------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
InnoVen III Corporation
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
MSI SECURITYHOLDERS:
Xxxxxxxx VI
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ W.S. Van Auhen
--------------------------------
Name:
------------------------------
Title: General Partner
-----------------------------
124
MSI SECURITYHOLDERS:
Xxxxxxxx Associates
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ W.S. Van Auhen
--------------------------------
Name:
------------------------------
Title: General Partner
-----------------------------
MSI SECURITYHOLDERS:
/s/ X. Xxxx Xxxxx
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ X. Xxxx Xxxxx
--------------------------------
Name: X. Xxxx Dolan
------------------------------
Title: General Partner
Charter Ventures
-----------------------------
MSI SECURITYHOLDERS:
Jeffrey M. Wales
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Jeffrey M. Wales
--------------------------------
Name: Jeffrey M. Wales
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
Barry D. Olafson
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Barry D. Olafson
--------------------------------
Name: Barry D. Olafson
------------------------------
Title:
-----------------------------
125
MSI SECURITYHOLDERS:
William A. Goddard III and
Amelia Yvonne Correy Goddard
-----------------------------------
Printed Name of MSI Securityholder
By:/s/ Amelia Yvonne Correy Goddard
--------------------------------
Name: /s/ William Goddard III
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
Teijin Limited
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Takehisa Tokunaga
--------------------------------
Name: Takehisa Tokunaga
------------------------------
Title: Manager, Information Systems
Business Division
-----------------------------
MSI SECURITYHOLDERS:
American Consulting Corporation
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ P. Engel
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
Michael J. Savage
-----------------------------------
Printed Name of MSI Securityholder
By: Michael J. Savage
--------------------------------
Name:
------------------------------
Title:
-----------------------------
126
MSI SECURITYHOLDERS:
EGC II LIMITED PARTNERSHIP
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Charles A. Reid
--------------------------------
Name: EGC II LIMITED PARTNERSHIP BY
GENERAL PARTNER BALTIMORE
STREET
------------------------------
Title: CAPITAL III BY GENERAL
PARTNER
CHARLES A. REID
-----------------------------
MSI SECURITYHOLDERS:
Gregory E. Presson
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Gregory E. Presson
--------------------------------
Name: Gregory E. Presson
------------------------------
Title: Managing Director
-----------------------------
MSI SECURITYHOLDERS:
ABS Ventures II Limited Partnership
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Bruns Grayson
--------------------------------
Name: Bruns Grayson
------------------------------
Title: Managing Partner
-----------------------------
MSI SECURITYHOLDERS:
Brown Technology Associates Limited
Partnership
-----------
Printed Name of MSI Securityholder
By: /s/ Bruns Grayson
--------------------------------
Name: Bruns Grayson
------------------------------
Title: General Partner
-----------------------------
127
MSI SECURITYHOLDERS:
Kevin Cable
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Kevin Cable
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
KME Venture Capital L.P.
By: Safat Ltd., its General Partner
-----------------------------------
Printed Name of MSI Securityholder
By: Abdulwahab Al-Qatami
--------------------------------
Name: /s/ Abdulwahab Al-Qatami
------------------------------
Title: Attorney-In-Fact
-----------------------------
MSI SECURITYHOLDERS:
Irwin Lieber
-----------------------------------
Printed Name of MSI Securityholder
By: /s/Irwin Lieber
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
Mellon Bank N.A., Master Trustee for
Bell Atlantic Master Pension Trust
(AS directed by Abbott Capital
Management)
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Judith A. Manion
--------------------------------
Name: Judith A. Manion
------------------------------
Title: Assistant Officer
-----------------------------
[Examined and Approved As to Form
/s/ Jam Legal Department Seal]
128
MSI SECURITYHOLDERS
GC&H INVESTMENTS
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ John Cardoza
--------------------------------
Name: John L. Cardoza
------------------------------
Title: Executive Partner
-----------------------------
MSI SECURITYHOLDERS:
WS Investment Company 91C
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Linda G. Wilson
--------------------------------
Name:
------------------------------
Title: Administrator
-----------------------------
MSI SECURITYHOLDERS:
WS Investment Company 90A
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Linda G. Wilson
--------------------------------
Name:
------------------------------
Title: Administrator
-----------------------------
MSI SECURITYHOLDERS:
MENLO VENTURES III
By: Menlo Management Partners,
its General Partner
By: /s/ Thomas H. Bredt
--------------------------------
Name: Thomas H. Bredt
------------------------------
Title: General Partner
-----------------------------
129
MSI SECURITYHOLDERS:
Morgan Stanley Venture Capital
Fund L.P.
---------
Printed Name of MSI Securityholder
By: /s/ Guy de Chazal
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
/s/ Illegible
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Lee A. Dayton
--------------------------------
Name: /s/ Lee A. Dayton
------------------------------
Title: General Manager, Business
Development
-----------------------------
MSI SECURITYHOLDERS:
International Business Machines
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Lee A. Dayton
--------------------------------
Name: /s/ Lee A. Dayton
------------------------------
Title: General Manager,
Business Development
-----------------------------
MSI SECURITYHOLDERS:
CH Investment Partners
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Thomas J. Cable
--------------------------------
Name: Thomas J. Cable
------------------------------
Title: General Partner
-----------------------------
130
MSI SECURITYHOLDERS:
CH Partners IV
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Thomas J. Cable
--------------------------------
Name: Thomas J. Cable
------------------------------
Title: General Partner
-----------------------------
MSI SECURITYHOLDERS:
Human Factors, Inc.
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ James L. Thompson
--------------------------------
Name: James L. Thompson
------------------------------
Title: Corp. Secretary
-----------------------------
PURCHASERS:
/s/ Ralph Korpman
----------------------------------
Printed Name of Purchaser
By: /s/ Ralph Korpman
-------------------------------
Name:
-----------------------------
Title:
----------------------------
MSI SECURITYHOLDERS:
[Illegible]
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Charles R. Stetson, Jr.
--------------------------------
Name: Charles R. Stetson, Jr.
------------------------------
Title: President
-----------------------------
131
MSI SECURITYHOLDERS:
SIF Limited Partnership
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Guy de Chazal
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
Patrick D. Coulter
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ PATRICK D. COULTER
--------------------------------
Name: P. Coulter
------------------------------
Title: Dr
-----------------------------
MSI SECURITYHOLDERS:
CONTINENTAL TRUST CO CUST
POLICEMEN'S ANNUITY & BENEFIT FUND
OF CHGO
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ WILLIAM J. UHER
--------------------------------
Name: WILLIAM J. UHER
------------------------------
Title: Vice President
-----------------------------
MSI SECURITYHOLDERS:
-----------------------------------
Printed Name of MSI Securityholder
By: [/s/ Signature Illegible]
--------------------------------
Name:
------------------------------
Title:
-----------------------------
132
MSI SECURITYHOLDERS:
-----------------------------------
Printed Name of MSI Securityholder
By: [/s/ Signature Illegible]
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MSI SECURITYHOLDERS:
/s/ Steven Teig
-----------------------------------
Printed Name of MSI Securityholder
By: /s/ Steven Teig
--------------------------------
Name: Steven Teig
------------------------------
Title:
-----------------------------
4
