EQUITY AGREEMENT
Exhibit 10.5
Agreement
No. 98-0227
This Agreement is made effective the 22nd day of February, 1999, by and between
Wisconsin Alumni Research Foundation (hereinafter called “XXXX”), a nonstock, nonprofit
Wisconsin corporation, and TomoTherapy Incorporated (hereinafter called “TomoTherapy”), a
corporation organized and existing under the laws of Wisconsin;
WHEREAS, XXXX and TomoTherapy have entered into a License Agreement, as defined below,
with respect to certain inventions owned by XXXX;
WHEREAS, as an accommodation to TomoTherapy, XXXX is willing to accept Shares in lieu of
the cash payment of license fees and patent reimbursement due under the License Agreement
(defined below);
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below,
the parties covenant and agree as follows:
Section 1. Definitions.
For the purpose of this Agreement, the Appendix A definitions shall
apply.
Section 2. Issuance of Shares to XXXX.
A. Issuance of Shares.
(i) TomoTherapy shall issue to XXXX 1,281 Shares equivalent to five percent (5%) of the
outstanding Equity Securities of TomoTherapy plus the five percent (5%) of Shares described in
Section 2A(ii) below within thirty (30) days after the execution of this Agreement. Within
such period, TomoTherapy shall deliver, or cause to be delivered, to XXXX a stock certificate,
duly signed by appropriate officers of TomoTherapy and issued in XXXX’x name, representing all
of the Shares required to be issued to XXXX during that period.
(ii) All Shares shall be fully-paid and non-assessable upon their issuance to XXXX and
shall have the same rights and preferences granted other holders of Shares. TomoTherapy agrees
that XXXX’x percentage interest in Equity Securities shall be maintained through the first
round of equity financing and until the cash investment in or net worth of TomoTherapy is
greater than $3,000,000 (the “End Date”). Thereafter, XXXX’x percentage interest shall be
subject to dilution in the same manner as the most favored of the other holders of
TomoTherapy’s Shares. For purposes of calculating XXXX’x percentage interest pursuant to this
paragraph, XXXX shall be entitle to five percent (5%) of the Equity Securities of TomoTherapy
outstanding from time to time through the End Date plus five percent (5%) of the Shares that
TomoTherapy becomes obligated to issue pursuant to Section 8.4 of the Loan Agreement (see
Appendix C) and five percent (5%) of all Shares subject to stock option agreements granted by
TomoTherapy to employees, officers and directors through the End Date.
(iii) XXXX’x execution of this Agreement and agreement to waive the cash payment of the
License Agreement license fees and patent reimbursement as provided in Section 2C of this
Agreement shall be deemed full consideration for the issuance of the Shares, and no additional
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consideration for such Shares shall be due from XXXX. No Shares shall be subject to any
restrictions on their transfer other than the restrictions specified in herein,
B. Certain Adjustments.
If TomoTherapy pays a stock dividend or undertakes a split of its common stock, a
reverse split, a recapitalization, reorganization, or other similar action with respect to
its common stock between the date of this Agreement and the date that Shares are issued to
XXXX pursuant to this Agreement, then appropriate adjustments shall be made to the number of
Shares to be issued to XXXX pursuant to Section 2A so that XXXX receives an equivalent
percentage of TomoTherapy’s issued and outstanding Shares.
C. Effect on License Agreement.
If TomoTherapy meets its obligations under Sections 2A and 2B of this Agreement and the
representations and warranties made by TomoTherapy in Section 6 of this Agreement are then
true, then, upon XXXX’x receipt of a stock certificate representing all of the Shares to be
issued to XXXX under Section 2A(i) (as adjusted), XXXX shall waive the payment in cash of the
initial license fee specified in Section 3B and patent reimbursement specified in Section 3C
of the License Agreement.
Section
3. Put Option.
X. Xxxxx of Put Option.
TomoTherapy hereby agrees to repurchase the Shares issued to XXXX pursuant to this
Agreement, at the option of XXXX, on the terms contained in this Section 3.
B. Period for Exercise.
XXXX shall have the right to exercise part or all of its put option under this Section 3
after the earlier of: (i) December 31, 2004; or (ii) one year after an initial public offering
but in no event earlier that the first date any other put option is permitted to be exercised
as held by a venture capital investor or founder. TomoTherapy shall notify XXXX of the events
specified in clause (ii) of this Section 3B within ten (10) days after such event occurs. Such
right shall expire on the final day of the twenty-fourth calendar month following the first
day such right may be exercised hereunder.
C. Price Per Share.
TomoTherapy shall pay XXXX consideration for each Share put to it hereunder in cash in
an amount equal to the Fair Market Value of the Shares being put as of the date XXXX
exercises its put option, or in the event of an initial public offering, the average daily
closing price of a share of common stock of TomoTherapy as reported on the NASDAQ or such
other consolidated reporting system for the twenty (20) trading day period immediately
preceding the exercise of such put.
D. Exercise of Option.
XXXX may exercise its put option only by its delivery of a written notice to TomoTherapy
that XXXX is exercising its rights under this Section 3. In XXXX’x sole discretion, XXXX may
exercise its rights to either some or all of the Shares with respect to which it has a put
option under this Section 3 at any time after any of the events specified in Section 3B of
this Agreement and prior to its expiration date as set forth in Section 3B.
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E. Stock Splits, etc.
If TomoTherapy pays a stock dividend or undertakes a split of its common stock, a reverse
split, a recapitalization, reorganization, or other similar action with respect to its common
stock, this put option shall apply to any new shares issued to XXXX pursuant to such corporate
action and appropriate adjustments shall be made to the number of shares subject to this put
option (including any new shares) and the price per share under this option so that the value
of this option to XXXX is not diminished by such corporate action.
F. Inability of TomoTherapy to Purchase.
If TomoTherapy is unable to lawfully purchase all of the Shares which it is required or
permitted to purchase pursuant to this Agreement because such purchase would cause TomoTherapy
to be insolvent, then until such time as TomoTherapy is legally able to purchase the Shares
pursuant to this Agreement at the original purchase price provided herein, or, if applicable,
the value redetermined as hereinafter set forth, the purchase thereof shall be considered to
be deferred, and the rights of TomoTherapy to purchase or demand purchase hereunder shall not
be considered to commence until that time. Notwithstanding the forgoing, if XXXX shall so
request, TomoTherapy shall purchase as many Shares as it is legally able to purchase as
requested by XXXX on the date originally required by this Section 3 (the “Original Closing
Date”) and at such times as XXXX may thereafter reasonably request. Any deferral of the
purchase of Shares hereunder shall not change, defer or otherwise affect the date as of which
the value of each Share to be purchased is to be determined as provided herein (the “Original
Valuation Date”) with respect to deferred purchases occurring during the one (1) year period
following the Original Closing Date. Thereafter, the value per share of any Shares, the
purchase of which has been deferred hereunder (the “Deferred Shares”) shall be redetermined on
each successive one (1) year anniversary (“Redetermination Date”) of the Original Closing Date
and the value of each Deferred Share remaining to be purchased at any time shall be the
greater of (a) the value thereof determined on the Original Valuation Date, or (b) the value
thereof determined on the Redetermination Date last preceding the purchase of such Shares.
Section 4. General Restriction on Sale or Transfer of Shares.
Except as expressly permitted by this Agreement, XXXX shall not transfer in any manner or
permit to be transferred in any manner, any Shares, which are now owned or which hereafter may
be acquired by XXXX. For purposes of this Agreement, reference to a “transfer” of Shares means
any disposition of Shares or any interest therein, including, without limitation, any sale,
gift, assignment, pledge or encumbrance, whether such disposition occurs voluntarily, by
operation of law or otherwise. Except as otherwise expressly provided in this Agreement, any
Shares transferred (whether or not in compliance with the terms of this Agreement) shall
continue to be subject to the restrictions on transfer contained in this Agreement, and any
transferee of such Shares shall be deemed to have accepted and consented to be bound by the
restrictions hereof as if such transferee had originally executed this Agreement as a party
hereto, and such transferee shall be a Stockholder for purposes of the restriction on sale of
Shares in this Agreement.
A. Voluntary Sale. If XXXX receives a bona fide written offer (“Third Party
Offer”) from a purchaser to purchase some or all of the Shares held by XXXX (the “Offered
Shares”), XXXX may sell such Shares to such purchaser in accordance with this Section 4A.
(i) Offer to Corporation. XXXX shall first give written notice (“Sale Notice”) to
TomoTherapy of the Third Party Offer, specifying the purchaser, the price for the Offered
Shares (the “Third Party Price”) and the payment terms of the proposed sale (the “Third Party
Payment Terms”). The
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Sale
Notice shall constitute an offer by XXXX to sell the Shares to TomoTherapy at the Third Party Price and on the Third Party Payment
Terms. TomoTherapy shall have the exclusive right and option for a period of thirty (30) days
after the date the Sale Notice is given to accept such offer with respect to any or all of the
Offered Shares. If TomoTherapy accepts such offer, it shall notify XXXX in writing of such
acceptance within the thirty-day option period, specifying the number of Shares as to which the
offer is accepted.
(ii) Offer to Other Stockholders. If the option to purchase the Offered Shares
is not exercised by TomoTherapy pursuant to Section 4A(i) as to some or all of the Offered
Shares within the option period, then the other stockholders shall have the exclusive right
and option for a period of thirty (30) days after the expiration of the first option period,
in their own behalf and exercisable in the same manner as TomoTherapy, to accept the offer
as to all of the remaining Offered Shares. Such option shall be exercised by the other
stockholders in proportion to the Shares then registered in their respective names, or in
such other proportion as they may agree on in writing, by written notice of such exercise to
XXXX within the second option period. If such option is not exercised by all of the other
stockholders as to all of the remaining Offered Shares within the second option period, then
the other stockholders who have elected to exercise their option as set forth in the
immediately preceding sentence (the “Electing Stockholders”) shall have the further
exclusive right and option for a period of thirty (30) days following the expiration of the
second option period, in their own behalf and exercisable in the same manner as TomoTherapy,
to accept the offer as to all of the remaining Offered Shares. Such option shall be
exercised by the Electing Stockholders in proportion to the Shares then registered in their
respective names, or in such other proportion as they may agree on in writing, by written
notice of such exercise to XXXX within the third option period.
(iii) Right to Sell. If the offers referred to in Sections 4A(i) and (ii) are
not accepted as to all of the shares in the aggregate by TomoTherapy or the other
stockholders as to any of the Offered Shares within the applicable option periods, then such
Offered Shares may be sold by XXXX to the proposed purchaser specified in the Sale Notice at
any time within thirty (30) days after the expiration of the last of such option periods, but
only at or above the Third Parry Price and on the Third Party Payment Terms. The Offered
Shares that are sold to the proposed purchaser shall remain subject to the restrictions on
such Shares set forth in this Agreement for XXXX and the proposed purchaser shall execute a
copy of a Stockholder Agreement containing similar restrictions simultaneously to becoming a
registered stockholder. If the Offered Shares are not sold by XXXX to the proposed purchaser
in accordance with this Section 4A(iii), or if there is a change in any of the terms of the
Third Party Offer, the Offered Shares may not be sold to the proposed purchaser unless XXXX
again fully complies with the provisions of Sections 4A(i) and (ii).
Section 5. Obligations at Closing.
Any
closing shall occur at XXXX’x offices in Madison, Wisconsin at such time and place that is mutually acceptable to both parties; however, in no event shall the closing occur
later than ninety (90) days after TomoTherapy receives notice of XXXX’x exercise of its
option under Section 3 or 4. At such closing:
A. TomoTherapy (the Other Stockholders) shall deliver to XXXX either a certified check
or suitable proof of a wire transfer of immediately available funds to XXXX’x account in the
amount of the aggregate purchase price for the Shares being transferred by WARF to
TomoTherapy (or the Other Stockholders); and
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X. XXXX shall deliver to TomoTherapy one or more certificates representing the number
of Shares being transferred by XXXX to TomoTherapy (or the Other Stockholders), properly endorsed
for transfer or accompanied by executed stock powers.
Section 6. Representations and Warranties.
A. Representations and Warranties by TomoTherapy.
TomoTherapy represents and warrants to XXXX that:
(i) TomoTherapy was duly organized and is a validly existing corporation under the laws
of the State of Wisconsin with adequate power and authority to conduct the business in which
it is now engaged, and TomoTherapy is duly qualified to do business as a foreign corporation
and is in good standing in such other states or jurisdictions as is necessary to enable it
to carry on its business.
(ii) There are no actions, suits, or proceedings pending or threatened against
TomoTherapy, its properties, or its patents in any court or before any governmental or
administrative agency, which can have any material or adverse effect on the business as now
conducted or on the properties, the financial condition, or income of TomoTherapy, and
TomoTherapy is not in default under any order or judgment of any court or governmental or
administrative agency.
(iii) TomoTherapy is not a party to any agreement or instrument, or subject to any
charter, bylaw, or other corporate restrictions materially adversely affecting its business
and operations, present or prospective, or its property, assets, or condition, financial or
otherwise.
(iv) TomoTherapy is not in default in the performance, observance, or fulfillment of any
of the obligations, covenants, or conditions contained in any bond, debenture, note, or other
evidence of indebtedness or any contract or other agreement of TomoTherapy.
(v) This Agreement has been duly authorized, executed and delivered on behalf of
TomoTherapy and constitutes the valid and binding agreement of TomoTherapy, enforceable in
accordance with its terms, and TomoTherapy has full power and lawful authority to issue,
sell, and repurchase the Shares on the terms and conditions herein set forth.
(vi) Consummation of the transactions contemplated by this Agreement in compliance with
provisions of this agreement will not result in any breach of any of the terms, conditions, or
provisions of, or constitute a default under, or result in the creation of any lien, charge,
or encumbrance on, any property or assets of TomoTherapy pursuant to any indenture, mortgage,
deed of trust, agreement, corporate charter, contract, or other instrument to which
TomoTherapy is a party or by which TomoTherapy may be bound.
(vii) TomoTherapy is in compliance with all federal, state and local environmental laws
and there are no conditions currently existing or contemplated which are likely to subject
TomoTherapy to damages, penalties, injunctive relief, removal costs, remedial costs or
cleanup costs under any such laws or assertions thereof.
(viii) Attached hereto as Appendix B and hereby made a part hereof are the Articles of
Incorporation (including any amendments thereto) and the Bylaws (including any amendments
thereto) of TomoTherapy.
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(ix)Pursuant to its Articles of Incorporation, TomoTherapy is authorized to issue
51,717 Shares, 16,652 Shares of which are validly issued and outstanding, fully paid and
nonassessable, and not subject to any other parties’ preemptive rights. There are no other
authorized or outstanding Equity Securities of any class, kind, or character, and there are no
outstanding subscriptions, options, warrants, or other agreements, or commitments obligating
TomoTherapy to issue any additional shares of its capital stock of any class, or any options or
rights with respect thereto, or any securities convertible into any shares of stock of any class
except under the terms of Section 8.4 of the Loan Agreement and under the terms of the Incentive
Stock Option Plan.
(x) Attached hereto as Appendix C and hereby made a part hereof is a list of all
restrictions on the transfer of any Shares or other securities of TomoTherapy and all
agreements between any shareholders or convertible debtholders of TomoTherapy regarding the
valuation or transfer of any Shares or other securities of TomoTherapy.
(xi) Attached hereto as Appendix D and hereby made a part hereof are the Financial
Statements of TomoTherapy which are provided to XXXX as of the date of this Agreement.
(xii) Since the date of the most recent Financial Statements provided to XXXX under this
Agreement, there has been no: (a) material adverse change in the condition, financial or
otherwise, of TomoTherapy other than changes in the ordinary course of business; (b) damage
or loss, whether or not covered by insurance, materially and adversely affecting
TomoTherapy’s properties or business taken as a whole; and (c) declaration or setting aside,
or payment of any dividend or other distribution in respect of the stock of TomoTherapy or
any direct or indirect redemption, purchase or other acquisition of such shares.
(xiii) All Financial Statements provided or to be provided to XXXX under this Agreement
are true and complete and have been prepared in accordance with generally accepted accounting
principles. As of the date of the most recent Financial Statements provided to XXXX under
this Agreement, TomoTherapy had no material liabilities, absolute or contingent, that are not
reflected in such Financial Statements except obligations incurred in the ordinary course of
business.
(xiv) TomoTherapy has filed all tax returns and reports required to be filed by it.
TomoTherapy has paid all taxes, interest and penalties required to be paid pursuant to said
returns or otherwise required to be paid by it.
B. Representations and Warranties by XXXX.
XXXX represents and warrants to TomoTherapy that:
(i) XXXX is acquiring the Shares for investment for its own account and not with a view
to resale or distribution within the meaning of the Securities Act, and XXXX does not intend
to divide its participation with others or to resell or otherwise dispose of all or any part
of the Shares without registration under the Securities Act, except to TomoTherapy or unless
and until it determines at some future date that changed circumstances, not now in its
contemplation, make such disposition advisable.
(ii) This Agreement has been duly authorized, executed, and delivered on behalf of XXXX
and constitutes the valid and binding Agreement of XXXX, enforceable in accordance with its
terms, and XXXX has full power and lawful authority to purchase and sell the Shares on the
terms and conditions herein set forth.
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C. Survival and Timing of Warranties.
The warranties and representations made in this Section 6 shall survive the closing of any
issuance of shares to XXXX. The warranties and representations made in this Section 6 shall be
true and correct as of the date of this Agreement and as of the date the Shares are issued to
XXXX.
Section 7. Miscellaneous Covenants.
A. Financial Statements and Other Information.
As long as XXXX owns any Shares, TomoTherapy shall promptly provide to XXXX such Financial
Statements, amendments to or restatements of its Articles of Incorporation or Bylaws, stock
transfer restrictions and agreements between shareholders with respect to the valuation or
transfer of shares and amendments thereto, and such other information respecting the business,
affairs, and financial condition of TomoTherapy as XXXX may reasonably request and XXXX’x
representatives may visit and inspect any of the properties, books and information of
TomoTherapy.
B. Preemptive Rights.
In addition to its other rights under this Agreement, XXXX shall have a preemptive right
during the term of this Agreement to acquire such Equity Securities as may be issued from time to
time in accordance with the terms of this Agreement. Such preemptive right shall apply with
respect to all Equity Securities issued by TomoTherapy after the effective date of this Agreement,
whether such additional Equity Securities constitute a part of the Equity Securities presently or
subsequently authorized or constitute Equity Securities held in the treasury of TomoTherapy but
its preemptive right shall not apply to the grant of stock options or Equity Securities to
employees, directors and officers in connection with services rendered to TomoTherapy by such
persons or to those Equity Securities for which XXXX receives additional Shares under the
anti-dilution provisions set forth in Section 2A(ii). XXXX shall have the right to acquire Equity
Securities of the type being issued in an amount equal to XXXX’x Share percentage immediately
before the issuance multiplied by the number of Equity Securities of that type that are to be
issued to all persons or entities pursuant to that issuance. The
terms and conditions of XXXX’x
exercise of its preemptive rights, including the consideration to be paid for such Equity
Securities, shall be no less favorable to XXXX than the most favorable terms and conditions
offered to any other shareholder or prospective shareholder with respect to the Equity Securities
then being issued. XXXX may, at its option, exercise such preemptive rights to some or all of the
Shares or other Equity Securities to which it has preemptive rights under this Section 7B.
C. Issuance of Shares to Affiliates.
Except under the terms of Section 8.4 of the Loan Agreement and under the terms of the
Incentive Stock Option Plan, TomoTherapy shall not issue any Equity Securities (including Shares)
to any Affiliate for less than the fair market value of that security. TomoTherapy shall have the
burden of proving that it received consideration for any such issuance equal to the fair market
value of the Equity Securities issued.
D. Piggyback Registration Rights.
(i) If at any time TomoTherapy shall determine to Register any Shares, TomoTherapy
shall:
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(1) promptly
give WARF written notice thereof (which shall include
a list of the jurisdictions in which TomoTherapy intends to attempt to qualify such Shares under
the applicable Blue Sky or other state securities laws); and
(2) will use its best efforts to include in such Registration (and
any related qualification under Blue Sky laws or other compliance), and in any underwriting involved
therein, all of the Shares specified in a written request by XXXX received by TomoTherapy within
twenty (20) days after the giving of such written notice by TomoTherapy. If TomoTherapy is unable
to include XXXX in such Registration despite its best efforts, TomoTherapy agrees to share equally
in the expense incurred by XXXX in connection with registering its Shares in a separate offering.
(ii) All Registration Expenses incurred in connection with any registration pursuant to
Section 7D(i) shall be borne by TomoTherapy.
E. Notice of Fundamental Corporate Transactions.
During the term of this Agreement, TomoTherapy shall provide XXXX with written notice of any
of the following fundamental transactions: (i) merger with another entity, consolidation,
reorganization (including without limitation by any reverse stock split), liquidation, or
dissolution of TomoTherapy; (ii) sale, lease, exchange or other disposal of all or substantially
all of the property or assets of TomoTherapy; or (iii) adoption of any plan or agreement to do
any of the foregoing.
F. Board Meetings.
TomoTherapy agrees that XXXX shall be allowed to attend all meetings of the Board of
Directors as a non-voting observer. XXXX shall be provided advance notice of all meetings and
shall be provided the same materials provided to members of the Board.
Section 8. Termination.
A. Unless terminated sooner by either party as provided below, this Agreement shall
terminate on the date that XXXX, after having been issued Shares hereunder, no longer owns any
Equity Securities. If this Agreement terminates automatically as provided in this Section 8A, the
License Agreement shall remain in effect according to the terms specified therein.
B. If TomoTherapy fails to issue Shares to XXXX on a timely basis, fails to timely
repurchase Shares from XXXX, or otherwise commits a material breach of this Agreement, or if
any of the representations or warranties made by TomoTherapy are untrue as of any date on which they
are required to be true and correct, and TomoTherapy fails to remedy any such breach or default
within thirty (30) days after written notice thereof by XXXX, XXXX may, at its option, terminate this
Agreement.
C. If XXXX at any time commits a material breach of this Agreement or any of the
representations or warranties made by XXXX are untrue as of any date on which they are
required to be true and correct, and XXXX fails to remedy any such breach or default within thirty (30) days
after written notice thereof by TomoTherapy, TomoTherapy may, at its option, terminate either this
Agreement, the License Agreement, or both.
Section 9. Assignability.
Neither party may assign its rights or obligations under this Agreement.
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Section 10. Miscellaneous.
This Agreement shall be governed by and construed in all respects in accordance with the laws
of the State of Wisconsin. If any provisions of this Agreement are or shall come into conflict
with the laws or regulations of any jurisdiction or any governmental entity having jurisdiction
over the parties or this Agreement, those provisions shall be deemed automatically deleted, if
such deletion is allowed by relevant law, and the remaining terms and conditions of this Agreement
shall remain in full force and effect. If such a deletion is not so allowed or if such a deletion
leaves terms thereby made clearly illogical or inappropriate in effect, the parties agree to
substitute new terms as similar in effect to the present terms of this Agreement as may be allowed
under the applicable laws and regulations.
Section 11. Notices.
Any
notice required to be given pursuant to the provisions of this Agreement shall be in
writing and shall be deemed to have been given at the earlier of the time when actually
received as a consequence of any effective method of delivery, including but not limited to
hand delivery, transmission by telecopier, or delivery by a professional courier service or
the time when sent by certified or registered mail addressed to the party for whom intended at
the address below or at such changed address as the party shall have specified by written
notice, provided that any notice of change of address shall be effective only upon actual
receipt.
| (a) | Wisconsin Alumni Research
Foundation Attn: Managing Director 000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx 00000 |
||
| (b) | TomoTherapy
Incorporated Attn: President X.X. Xxx 0000 Xxxxxxx, Xxxxxxxxx 00000-0000 |
With a copy of such notice to:
Xxxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx & Sinykin
P.O. Box 2719
One Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
XxXxxxxxxx & Sinykin
P.O. Box 2719
One Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Section 12.
Integration.
This Agreement constitutes the full understanding between the parties with reference to
the subject matter hereof, and no statements or agreements by or between the parties, whether
orally or in writing, made prior to or at the signing hereof, shall vary or modify the written
terms of this Agreement. Neither party shall claim any amendment, modification, or release
from any provisions of this Agreement by mutual agreement, acknowledgement, or otherwise,
unless such mutual agreement is in writing, signed by the other party, and specifically states
that it is an amendment to this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the dates
indicated below.
WISCONSIN ALUMNI RESEARCH FOUNDATION
By:
|
/s/ Xxxxxxx X. Xxxxxx | Date: | 2/24 | ,1999 | ||||||||
| Xxxxxxx X. Xxxxxx, Managing Director |
TOMOTHERAPY INCORPORATED
By:
|
/s/ Xxxx X. Xxxxxxxxx | Date: | 2/24 | ,1999 | ||||||||
| Xxxx X. Xxxxxxxxx, Vice -President |
Reviewed by XXXX’x Attorney:
| /s/ Xxxxxxxxx X.X. Xxxxxx | 2/28 | ,99 | ||||||||||
| Xxxxxxxxx X.X. Xxxxxx, Esq. |
(XXXX’x attorney shall not be deemed a signatory to this Agreement.)
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APPENDIX
A
A. “Shares” shall mean shares of TomoTherapy’s common stock, $.01 par value per
share.
B. “License Agreement” shall mean the license agreement entered into by XXXX and
TomoTherapy of even date herewith.
C. “Affiliate” shall mean any person who is related by blood or marriage to any person or
entity who owns more than twenty percent of the issued and outstanding shares of TomoTherapy
or to any officer or director of TomoTherapy or any entity in which any such person has a direct or
indirect beneficial ownership interest or for which any such person serves as a director or officer.
D. “Financial Statements” shall mean a balance sheet, statement of earnings, stockholders’
equity and cash flow as of the end of the last fiscal year that has been completed when the
statements are to be provided to XXXX and a balance sheet and income statement as of the end of the last
fiscal quarter that has been completed when the statements are to be provided to XXXX. If TomoTherapy’s
Financial Statements have been audited, then TomoTherapy shall provide XXXX with such audited
statements.
E. “Equity Securities” shall mean the Shares, any other shares of TomoTherapy (including
preferred shares), and any securities of TomoTherapy that are convertible into shares of
TomoTherapy or that carry a right to subscribe to or acquire shares of TomoTherapy.
F. “XXXX’x Share Percentage” shall mean the percentage derived by dividing the sum of
the number of Shares then owned by XXXX by the total number of issued and outstanding Shares
at such time.
G. “Fair Market Value” shall mean the value of the Shares as determined, if possible, by the
mutual consent of the parties. If the parties cannot agree on such value, the fair market
value of the Shares shall be determined by an independent appraiser who shall be jointly appointed by the
parties, but whose fees and expenses shall be paid by each party in equal shares. The independent appraiser
shall make his appraisal based on a hypothetical sale of all of the Equity Securities of TomoTherapy
on a fully diluted basis to a willing third party buyer who intends to continue TomoTherapy as a going
concern, and such appraisal shall not contain any minority interest discount, any discount for lack of
marketability or any other discount that would not apply uniformly to all shares of TomoTherapy Equity
Securities with respect to such a hypothetical sale.
H. “Register,” “Registered,” and “Registration” shall refer to a registration effected
by preparing and filing a Registration Statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness of such Registration Statement.
I. “Securities Act” shall mean the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Securities and Exchange Commission
issued under such act, as they each may, from time to time, be in effect.
J. “Registration
Statement” shall mean a registration statement on Form S-1 or Form S-3
filed by TomoTherapy with the Securities and Exchange Commission for a public offering and
sale of securities of TomoTherapy.
X.X.XXX 0000 • XXXXXXX, XXXXXXXXX 00000-0000 • TEL (000) 000-0000 • FAX (000) 000-0000
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K. Registration
Expenses” shall mean all expenses incurred by TomoTherapy in
complying with Section
7D(i) of this Agreement, including, without limitation, all registration and filing fees printing
expenses, and fees and disbursements of counsel for TomoTherapy.
X.X.XXX 0000 • XXXXXXX, XXXXXXXXX 00000-0000 • TEL (000) 000-0000 • FAX (000) 000-0000
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XXXXXXXX X
TomoTherapy Articles of Incorporation and Bylaws
(Attached)
X.X.XXX 0000 • XXXXXXX, XXXXXXXXX 00000-0000 • TEL (000) 000-0000 • FAX (000) 000-0000
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APPENDIX C
Stock
Transfer Restrictions,
Shareholder Agreements, and Convertible Debt
Shareholder Agreements, and Convertible Debt
X.X.XXX 0000 • XXXXXXX, XXXXXXXXX 00000-0000 • TEL (000) 000-0000 • FAX (000) 000-0000
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APPENDIX D
TomoTherapy
Financial Statements
(Attached)
X.X.XXX 0000 • XXXXXXX, XXXXXXXXX 00000-0000 • TEL (000) 000-0000 • FAX (000) 000-0000
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