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EXHIBIT 10.17
THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT
AGREEMENT, dated as of February 13, 1998 by and among Aspect Medical
Systems, Inc., a Delaware corporation (the "Company"), those persons whose names
are set forth under the heading "Preferred Shareholders" on SCHEDULE I hereto
(the "Preferred Shareholders"); and each of the persons who is currently a
holder of the Common Stock, $.01 par value per share (the "Common Stock"), of
the Company, or a holder of options to purchase shares of the Common Stock, and
whose name is listed under the heading "Key Stockholders" on SCHEDULE II hereto,
and each of the persons who shall, after the date hereof, acquire shares of
Common Stock of the Company or options to purchase Common Stock and join in and
become a party to this Agreement by executing and delivering to the Company an
Instrument of Accession in the form of SCHEDULE III hereto (such persons being
hereinafter referred to collectively as the "Key Stockholders").
WHEREAS, certain of the Preferred Shareholders and the Key
Stockholders, are parties to a Second Amended and Restated Right of First
Refusal and Co-Sale Agreement dated as of February 26, 1997 (the "Old Co-Sale
Agreement"), pursuant to which such Key Stockholders agreed to certain
restrictions with respect to the transfer of their equity securities of the
Company;
WHEREAS, pursuant to a Series D Convertible Preferred Stock Agreement
dated as of the date hereof (the "Series D Purchase Agreement") certain of the
Preferred Shareholders identified in SCHEDULE I are purchasing Series D
Convertible Preferred Stock, $.01 par value per share (the "Series D Preferred
Stock"); and
WHEREAS, it is a condition to the obligations of such Preferred
Shareholders under the Series D Purchase Agreement that this Agreement be
executed by the parties hereto to amend and restate the Old Co-Sale Agreement as
set forth herein, and the parties are willing to execute this Agreement and to
be bound by the provisions hereof.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. AMENDMENT TO OLD CO-SALE AGREEMENT. The Old Co-Sale Agreement is
hereby amended and restated upon the terms and conditions contained in this
Agreement to read in its entirety as provided herein.
2. DEFINITION OF SHARES. The term "Shares" shall mean and include all
equity securities owned by the Key Stockholders, whether presently held or
hereafter acquired.
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3. FIRST OFFER. (a) If at any time any of the Key Stockholders wishes
to sell, assign, transfer or otherwise dispose of any or all of such Key
Stockholder's Shares pursuant to the terms of a bona fide offer received from a
third party, such Key Stockholder shall submit a written offer to sell such
Shares to the Company on terms and conditions, including price, not less
favorable to the Company than those on which such Key Stockholder proposes to
sell such Shares to such third party (the "First Offer"). The First Offer shall
disclose the identity of the proposed purchaser or transferee, the Shares
proposed to be sold or transferred (the "Offered Shares"), the agreed terms of
the sale or transfer and any other material facts relating to the sale or
transfer. Within fifteen (15) days after receipt of the First Offer, the Company
shall give notice to the Key Stockholder of its intent to purchase all or any
portion of the Offered Shares on the same terms and conditions as set forth in
the First Offer. If the Company does not elect to purchase all of the Offered
Shares, then there shall be no right to purchase shares pursuant to this Section
3(a). The Company shall act upon the First Offer as soon as practicable after
receipt of the First Offer, and in any event within fifteen (15) days after
receipt thereof. In the event that the Company shall elect to purchase all or
part of the Offered Shares covered by the First Offer, the Company shall
communicate in writing such election to purchase to whichever of the Key
Stockholders has made the First Offer, which communication shall be delivered by
hand or mailed to such Key Stockholder at the address set forth on SCHEDULE II
hereto and as described in Section 7 below and shall, when taken in conjunction
with the First Offer be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of the Shares covered thereby.
In the event that the Company does not purchase all of the Offered
Shares offered by the Key Stockholder pursuant to and within thirty (30) days
after the First Offer, the agreement to purchase the Offered Shares shall be
deemed null and void. Notwithstanding the provisions of this subsection (a), the
Key Stockholder proposing to sell the Offered Shares shall have the discretion
to allow the Company to buy a portion of such Offered Shares.
(b) If the Company fails to purchase all or, subject to the Key
Stockholder's consent, any part of the Offered Shares, the Key Stockholder shall
submit a written offer (the "Second Offer") to sell such Offered Shares (the
"Remaining Shares") to the Preferred Shareholders on terms and conditions,
including price, not less favorable to the Preferred Shareholders than those on
which such Key Stockholder proposes to sell such Remaining Shares to the third
party. The Second Offer shall also disclose the identity of the proposed
purchaser or transferee, the Remaining Shares proposed to be sold or
transferred, the agreed terms of the sale or transfer and any other material
facts relating to the sale or transfer. Within fifteen (15) days after receipt
of the Second Offer, the Preferred Shareholders shall give notice to the Key
Stockholder of their intent to purchase all or any portion of the Remaining
Shares on the same terms and conditions as set forth in the Second Offer. Each
Preferred Shareholder shall have the right to purchase that number of the
Remaining Shares as shall be
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equal to the aggregate Remaining Shares multiplied by a fraction, the numerator
of which is the number of shares of Common Stock of the Company then owned by
such Preferred Shareholder (including any shares of Common Stock deemed to be
owned hereunder, being a number of shares equal to that into which the Series
A-1 Convertible Preferred Stock, $.01 par value per share (the "Series A-1
Preferred Stock"), Series B-1 Convertible Preferred Stock, $.01 par value per
share (the "Series B-1 Preferred Stock"), Series C Convertible Preferred Stock,
$.01 par value per share (the "Series C Preferred Stock"), Series D Preferred
Stock, Series A-2 Convertible Preferred Stock, $.01 par value per share (the
"Series A-2 Preferred Stock"), Series B-2 Convertible Preferred Stock, $.01 par
value per share (the "Series B-2 Preferred Stock"), Series C-2 Convertible
Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"),
and Series D-2 Convertible Preferred Stock, $.01 par value per share (the
"Series D-2 Preferred Stock"), held by such Preferred Shareholder is convertible
on the date of the Second Offer) and the denominator of which is the aggregate
number of shares of said Common Stock then issued and outstanding and held by
(and deemed to be held by) all the Preferred Shareholders. (The amount of shares
each Preferred Shareholder or Qualified Transferee, as that term is defined
below, is entitled to purchase under this Section 3 shall be referred to as its
"Pro Rata Fraction"). Each Preferred Shareholder shall have the right to
transfer its right to any Pro Rata Fraction or part thereof to any Qualified
Transferee. In the event a Preferred Shareholder does not wish to purchase or to
transfer its right to purchase its Pro Rata Fraction, then any Preferred
Shareholders who so elect shall have the right to purchase, on a pro rata basis
with any other Preferred Shareholders who so elect, any Pro Rata Fraction not
purchased by a Preferred Shareholder or Qualified Transferee. If the Preferred
Shareholders do not elect to purchase all of the Offered Shares, then there
shall be no right to purchase shares pursuant to this Section 3(b). Each
Preferred Shareholder shall act upon the Second Offer as soon as practicable
after receipt of the Second Offer, and in all events within fifteen (15) days
after receipt thereof. Each Preferred Shareholder shall have the right to accept
the Second Offer as to all or part of the Remaining Shares offered thereby. In
the event that a Preferred Shareholder shall elect to purchase all or part of
the Remaining Shares covered by the Second Offer, said Preferred Shareholder
shall individually communicate in writing such election to purchase to whichever
of the Key Stockholders has made the Second Offer, which communication shall be
delivered by hand or mailed to such Key Stockholder at the address set forth on
SCHEDULE II hereto and as described in Section 7 below and shall, when taken in
conjunction with the Second Offer be deemed to constitute a valid, legally
binding and enforceable agreement for the sale and purchase of the Shares
covered thereby.
In the event that the Preferred Shareholders do not purchase all of the
Remaining Shares offered by the Key Stockholder pursuant to and within thirty
(30) days after the Second Offer, each such agreement to purchase the Remaining
Shares shall be deemed null and void, and such Remaining Shares may be sold by
such Key Stockholder at any time within ninety (90) days after the expiration of
the Second
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Offer. Any such sale shall be at not less than the price and upon other terms
and conditions, if any, not more favorable to the purchaser than those specified
in the Second Offer. Notwithstanding the provisions of this subsection (b), the
Key Stockholder proposing to sell the Remaining Shares shall have the discretion
to allow the Preferred Shareholders to buy a portion of such Remaining Shares.
Any Remaining Shares not sold within such 90-day period shall continue to be
subject to the requirements of a prior offer and re-sale pursuant to this
section.
For the purposes of this Agreement, a "Qualified Transferee" shall mean
any person (i) who is a Preferred Shareholder, (ii) who is an affiliate, as that
term is defined in Section 405 of the Securities Act of 1933, as amended, of a
Preferred Shareholder, (iii) who is a partner, member or stockholder of a
Preferred Shareholder, (provided that if such Preferred Shareholder is
publicly-traded, then such transferee must hold at least 10% of the outstanding
voting securities of such Preferred Shareholder), or (iv) who acquires at least
25,000 shares of Series A-1 Preferred Stock, Series B-1 Preferred Stock, Series
C Preferred Stock, Series D Preferred Stock, Series A-2 Preferred Stock, Series
B-2 Preferred Stock, Series C-2 Preferred Stock or Series D-2 Preferred Stock of
the Company (appropriately adjusted for stock splits, stock dividends,
reclassifications, recapitalizations or other similar events).
4. RIGHT OF PARTICIPATION IN SALES BY KEY STOCKHOLDERS. If at any
time any Key Stockholder wishes to sell, or otherwise dispose of any of its
Shares to any person (the "Purchaser") in a transaction which is subject to the
provisions of Section 3 hereof, each Preferred Shareholder shall have the right
to require, as a condition to such sale or disposition, that the Purchaser
purchase from said Preferred Shareholder at the same price per Share and on the
same terms and conditions as involved in such sale or disposition by the Key
Stockholder the same percentage of shares owned (and deemed to be owned
hereunder) by such Preferred Shareholder as such sale or disposition (as finally
consummated) represents with respect to said Shares then owned by whichever of
the Key Stockholders is selling. Any purchase of less than all of such shares by
the Purchaser shall be made from the Key Stockholder and each participating
Preferred Shareholder pro rata based upon the relative amount of such Shares
that the Key Stockholder and each participating Preferred Shareholder is
otherwise entitled to sell pursuant to this Section 4. Each Preferred
Shareholder wishing so to participate in any such sale or disposition shall
notify the selling Key Stockholder of such intention as soon as practicable
after receipt of the Second Offer made pursuant to Section 3, and in all events
within fifteen (15) days after receipt thereof. In the event that a Preferred
Shareholder shall elect to participate in such sale or disposition, said
Preferred Shareholder shall individually communicate such election to the
selling Key Stockholder, which communication shall be delivered by hand or
mailed to such Key Stockholder at the address set forth on SCHEDULE II hereto
and as described in Section 7 below. The provisions of this Section 4 shall not
apply to the sale of any Shares by a Key Stockholder to the Company or a
Preferred Shareholder pursuant to an offer under Section 3.
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5. LIMITATIONS ON RIGHTS OF PREFERRED SHAREHOLDERS. Anything herein
to the contrary notwithstanding, the provisions of Sections 3 and 4 shall not
apply to any transfer of Shares by a Key Stockholder (i) by gift or bequest or
through inheritance to, or for the benefit of such Key Stockholder's spouse,
children, parents or siblings, or (ii) by gift to any third party, PROVIDED,
HOWEVER, such third party gift has been approved by a majority of the Board of
Directors (not including the vote of the applicable Key Stockholder if such Key
Stockholder is a member of the Board of Directors), and PROVIDED, FURTHER, that
all gifts pursuant to this clause (ii) shall not in the aggregate exceed 15% of
any such Key Stockholder's Shares. Anything herein to the contrary
notwithstanding, the provisions of Section 4 shall not apply to the transfer by
a Key Stockholder of no more than 15% of such Key Stockholder's Shares to a
third party in any calendar year.
6. TERMINATION. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate upon the completion of a firm
commitment underwritten public offering of shares of Common Stock in which the
aggregate gross proceeds shall be at least $20,000,000 and the price paid by the
public for such shares shall exceed $12.00 per share, which number shall be
proportionately adjusted for stock splits, stock dividends, combinations,
reorganizations and other similar events including a change in capital structure
of the Company.
7. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when delivered or mailed by
first class, registered or certified mail (air mail if to or from outside the
United States), return receipt requested, postage prepaid, if to each Key
Stockholder at the respective address set forth on SCHEDULE II hereto or on the
Instrument of Accession pursuant to which such Key Stockholder became a party to
this Agreement, if to the Preferred Shareholders, at their respective addresses
set forth on SCHEDULE I hereto or to such other addresses as the addressee shall
have furnished to the other parties hereto in the manner prescribed by this
Section 7.
8. SPECIFIC PERFORMANCE. The rights of the parties under this
Agreement are unique and, accordingly, the parties shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for specific performance to
the extent permitted by law.
9. ENTIRE AGREEMENT. This agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between them or any of them as to such
subject matter.
10. WAIVERS AND FURTHER AGREEMENTS. Any of the provisions of this
Agreement for the benefit of the Preferred Shareholders may be waived with the
consent of the Preferred Shareholders holding at least 55% of the issued and
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outstanding shares of Series A-1 Preferred Stock, Series B-1 Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series A-2 Preferred Stock,
Series B-2 Preferred Stock, Series C-2 Preferred Stock and Series D-2 Preferred
Stock of the Company (including shares of Common Stock into which any such
shares may have been converted), voting together as a single class, then held or
deemed to be held by all Preferred Shareholders by an instrument in writing. Any
waiver by any party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of that provision
or of any other provision hereof. Each of the parties hereto agrees to execute
all such further instruments and documents and to take all such further action
as any other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
11. AMENDMENTS. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by
Preferred Shareholders holding at least 55% of the issued and outstanding shares
of Series A-1 Preferred Stock, Series B-1 Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock, Series A-2 Preferred Stock, Series B-2
Preferred Stock, Series C-2 Preferred Stock and Series D-2 Preferred Stock of
the Company (including shares of Common Stock into which any such shares may
have been converted), voting together as a single class, then held or deemed to
be held by all Preferred Shareholders by an instrument in writing.
12. ASSIGNMENT, SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and permitted
transferees, except as may be expressly provided otherwise herein.
13. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid, illegal
and unenforceable provisions shall be reformed and construed so that it will be
valid, legal and enforceable to the maximum extent permitted by law.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15. SECTION HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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16. GOVERNING LAW. This agreement shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
ASPECT MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
President
/s/
--------------------------------------------
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and
X. X. Xxxxxxxxxxxx, Trustees of the Xxxxx X.
Xxxxxxx Trust U/A dated 11/18/85
/s/
--------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Juliet Xxx
Xxxxxxx
/s/
--------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxxx
Xxxxxxxx Xxxxxxx
/s/
--------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxxxx
Xxxxxxx Xxxxxxx
/s/
--------------------------------------------
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Xxxxx X.
Xxxxxxx, Xx.
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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VENHILL LIMITED PARTNERSHIP
By: /s/
----------------------------------
Name:
Title:
JULIET CHALLENGER, INC.
By: /s/
----------------------------------
Name:
Title:
BT XXXX XXXXX EMPLOYEE VENTURE FUND
By: /s/
----------------------------------
Name:
Title:
SECOND CENTURY GROWTH DEFERRED
COMPENSATION PLAN: Xxxxx Xxxxxxx, Inc.
By: /s/
----------------------------------
Name:
Title:
THE XXXX XXXXXXXXX SCHOOL
ENDOWMENT FUND
By: /s/
----------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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/s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
POLARIS VENTURE PARTNERS, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/
-----------------------------------
Member
POLARIS VENTURE PARTNERS
FOUNDERS' FUND, L.P.
By: Polaris Venture Management Co., LLC
Its General Partner
By: /s/
-----------------------------------
Member
ONE LIBERTY FUND III, L.P.
By: One Liberty Partners III, L.P.,
Its General Partner
By: /s/ Xxxxx X. Xxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxx, Xx.
General Partner
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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GILDE INTERNATIONAL B.V.
By: One Liberty Partners III, L.P.,
its Attorney-in-Fact
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------
Title: Xxxxx X. Xxxxx, Xx.
General Partner
XXXXXXX RIVER PARTNERSHIP VII,
LIMITED PARTNERSHIP
By: /s/
----------------------------------
Name:
Title:
NEW VENTURE PARTNERS III, LIMITED
PARTNERSHIP
By: /s/
----------------------------------
Name:
Title:
GENSTAR INVESTMENT CORPORATION
By: /s/
----------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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HIGHLAND CAPITAL PARTNERS II, LIMITED
PARTNERSHIP
By: Highland Management Partners II Limited
Partnership, its General Partner
By: /s/
---------------------------------------
Name:
Title:
XXXXXXXX ASSOCIATES
By: /s/
---------------------------------------
Name:
Title:
XXXXXXXX MEDICAL PARTNERS
By: /s/
---------------------------------------
Name:
Title:
XXXXXXXX VI
By: /s/
---------------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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MERRILL, PICKARD, XXXXXXXX & EYRE IV,
LIMITED PARTNERSHIP
By: MPAE IV Management Co., L.P.
By: /s/
---------------------------------------------
Name:
Title:
NEW ENTERPRISE ASSOCIATES IV, LIMITED
PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited Partnership
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx
General Partner
ORCHID & CO., nominee for
X. Xxxx Price Threshold Fund III, L.P.
By: X. Xxxx Price Threshold Fund Associates, Inc.
General Partner
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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CHANCELLOR LGT PRIVATE CAPITAL
PARTNERS III, L.P.
By: CPCP Associates, L.P.,
its general partner
By: Chancellor LGT Venture Partners, Inc.,
its general partner
By: /s/
---------------------------------------------
Name:
Title:
HLM PARTNERS VII, L.P.
By: /s/
---------------------------------------------
Name:
Title:
XXXXXX HILL VENTURES, A CALIFORNIA LIMITED
PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
TOW PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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/s/
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx., Trustee of the
Younger Living Trust
/s/
---------------------------------------------
Xxxx X. and Xxxxxx X. Xxxxxx, Trustees of
the Wythes Living Trust
/s/ G. Xxxxxxx Xxxxx
---------------------------------------------
G. Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxx
---------------------------------------------
Xxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxxxx and Xxxx Xxxxxxx
---------------------------------------------
Xxxxxxxx and Xxxx Xxxxxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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H&D INVESTMENTS II
By: /s/
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Partner
/s/ X. Xxxxxxxxxxxx Eagle
---------------------------------------------
X. Xxxxxxxxxxxx Eagle
/s/ Xxxxx X. Xxxx
---------------------------------------------
Xxxxx X. Xxxx
/s/ Xxxxx Xxxxx
---------------------------------------------
Xxxxx Xxxxx
/s/ J. Xxxx Xxxxxxxxx
---------------------------------------------
J. Xxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx Xx Xxxxxx
---------------------------------------------
Xxxx Xx Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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THE XXXX CARDIOVASCULAR RESEARCH FOUNDATION
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxx
-------------------------------------------------
Xxxx X. Xxxxxx
ZED INTERNATIONAL, INC.
By: /s/
---------------------------------------------
Name:
Title:
BAYVIEW INVESTORS, LTD.
By: /s/
---------------------------------------------
Name:
Title:
INTERSTOCK ANSTALT FUR VERMOGENS UND TRUST
VERWALTUNG
By: /s/
---------------------------------------------
Authorized Signatory
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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SVE STAR VENTURE ENTERPRISES NO. V,
A GERMAN CIVIL LAW PARTNERSHIP
(WITH LIMITATION OF LIABILITY)
By: SVM Star Ventures
Managementgesellschaft mbH Nr. C
By: /s/
---------------------------------------------
Authorized Signatory
SVM STAR VENTURES
MANAGEMENTGESELLSCHAFT MBH NR.
3 & CO. BETEILIGUNGS KG
By: SVM Star Ventures
Managementgesellschaft mbH Nr. C
By: /s/
---------------------------------------------
Authorized Signatory
/s/ Xxxxxxx and Xxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx and Xxxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxxx X. Xxxxxxx
AENEAS VENTURE CORPORATION
By: /s/
---------------------------------------------
Name:
Title:
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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CATALYST VENTURES, LIMITED PARTNERSHIP
By: New Enterprise Associates IV, Limited
Partnership
By: NEA Partners IV, Limited Partnership
By: /s/
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, TRUSTEE SHV M/P/T FBO
XXXXX X. XXXXXXXX
By: /s/
---------------------------------------------
Name:
Title:
XXXXX FARGO BANK, TRUSTEE SHV M/P/T FBO
XXXXX XXXX
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
THE XXXXXXX RESEARCH FOUNDATION
By: /s/
---------------------------------------------
Name:
Title:
FISHERS ISLAND PARTNERS
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxx X. Xxxxxxx
-------------------------------------------------
Ziad and Xxxx Xxxxxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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/s/ Xxxxxx Xxxxxx
-------------------------------------------------
Xxxxxx Xxxxxx as Custodian for Xxxxxxx
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx, M.D.
-------------------------------------------------
Xxxxxx X. Xxxxx, M.D.
-------------------------------------------------
Xxxxx X. Xxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxx
-------------------------------------------------
Xxxx Xxx Young
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx
LANDMARK VENTURES, LIMITED PARTNERSHIP
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxx X. Rohrbasser
-------------------------------------------------
Xxxx X. Rohrbasser
/s/ Xxxxxxxx Xxxx
-------------------------------------------------
Xxxxxxxx Xxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxx
CITIVENTURE 96 PARTNERSHIP, L.P.
By: Chancellor LGT Asset Management, Inc.
as investment advisor
By: /s/
---------------------------------------------
Name:
Title:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
-------------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Xxxxxx X. Xxxxx
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
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SCHEDULE I
PREFERRED SHAREHOLDERS
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx
and X. X. Xxxxxxxxxxxx, Trustees of the
Xxxxx X. Xxxxxxx Trust U/A dated
11/18/85
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Juliet Trustees U/A/T dated 8/28/68 for
Xxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx
0000 Xxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, X. X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx,
Trustees U/A/T dated 8/28/68 for Trustees U/A/T dated 8/28/68 for
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx X. Xxxxxxx, Xx.
1800 Xxxxx Building 0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Venhill Limited Partnership Juliet Challenger, Inc.
c/o Xxxxxx X. Xxxxxxx 000 Xxxxxx Xxxxxx, Xxxxx 000
Autotrol Technology Xxxxxxxxxx, XX 00000
00000 X. Xxxxxxxxxx Xxxxxx Attn: Xxxxxx XxXxxxxxx
Xxxxxx, XX 00000-0000
with copy to:
Xxxxx Xxxxx
Taconic Group, Inc.
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-23-
24
ABS Employees' Venture Fund Limited Second Century Growth Deferred
Partnership Compensation Plan: Xxxxx Xxxxxxx, Inc.
c/o Xxx Xxxxxx c/o Buzz Xxxxxx
000 Xxxx Xxxxxxx Xx. 000 Xxxxx 0xx Xx., 00xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
The Xxxx Xxxxxxxxx School Endowment Xxxxxx Afeyen
Fund c/o PerSeptive Biosystems
c/o Xxxxx Xxxxxx 000 Xxx Xxxxxxxxxxx Xxxx
000 Xxxxx Xxxxx Xxxx Xxxxxxxxxx, XX 00000
Xx. Xxxxx, XX 00000
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx
c/o Exact Laboratories, Inc. 000 Xxxxxxxxx Xxxxx
00 Xxxxx Xxxx Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000
Polaris Venture Partners, L.P. Landmark Ventures, Limited Partnership
Bay Colony Corporate Center 0000 Xx. Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, XX 00000
Xxxxxxx, XX 00000
Polaris Venture Partners Founders' Fund, Aeneas Venture Corporation
L.P. x/x Xxxxxxx Xxxxxxxxxx
Xxx Xxxxxx Xxxxxxxxx Center Company, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000 000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
One Liberty Fund III, L.P. Xxxxxxx X. Xxxxxxx, Xx.
One Liberty Square c/o Sutter Xxxx Ventures
Xxxxxx, XX 00000 000 Xxxx Xxxx Xxxx
Xxxxx X000
Xxxx Xxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-24-
25
Gilde International B.V. Genstar Investment Corporation
x/x Xxx Xxxxxxx Xxxxx Xxxxx, Xxxxx 0000
Partners III, L.P. Xxxxxx Xxxx, XX 00000
One Liberty Square Attn: Xx. X. X. Xxxxxxxx
Xxxxxx, XX 00000
Xxxxxxx River Partnership VII, Xxxxx Fargo Bank, Trustee
Limited Partnership SHV M/P/T FBO Xxxxx X. Xxxxxxxx
Ten Post Office Square, Attn: Xxxxx Xxxxxx
Suite 1330 MAC #0101-021
Xxxxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
New Enterprise Associates IV, Xxxxx Fargo Bank, Trustee
Limited Partnership SHV M/P/T FBO Xxxxx Xxxx
0000 Xx. Xxxx Xxxxxx Attn: Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 MAC #0101-021
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
New Venture Partners III, Limited Catalyst Ventures, Limited
Partnership Partnership
0000 Xx. Xxxx Xxxxxx 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Highland Capital Partners II, The Xxxxxxx Research Foundation
Limited Partnership Xx. Xxxxxxxx X. Xxxxxxx
One International Place Professor of Anesthesia
Xxxxxx, XX 00000 University of Utah
Medical School
Department of Anesthesia
00 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxxxx Associates Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxx Xxxx 00 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000 W. Xxxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-25-
26
Xxxxxxxx Medical Partners Ziad and Xxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx 000X Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000 Xxxxxx, XX 00000
Xxxxxxxx VI Xxxxxxx X. Xxxx
0000 Xxxx Xxxx Xxxx 00 Xxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxxx Xxxx Ventures, Xxxx Xx Xxxxxx
a California Limited Upstar Consulting
Partnership 00000 Xxxxxxxx Xxxx
x/x Xxxxxx Xxxx Xxxxxxxx Xxx Xxxxx, XX 00000
000 Xxxx Xxxx Xxxx
Xxxxx X000
Xxxx Xxxx, XX 00000
Tow Partners, a California Xxxxxx Xxxxxx as Custodian for
Limited Partnership Xxxxxxx Xxxxxxx Xxxxxx
x/x Xxxxxx Xxxx Xxxxxxxx 00 Xxxxxxxxxx Xxxx
000 Xxxx Xxxx Xxxx Xxxxxxxxx, XX 00000
Suite A200
Xxxx Xxxx, XX 00000
Xxxx X. and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, M.D.
Trustees of the Wythes Living Trust 0 Xxxxx Xxxxxx
c/o Sutter Xxxx Ventures Xxxxxxxx Xxxx, XX 00000
000 Xxxx Xxxx Xxxx
Xxxxx X000
Xxxx Xxxx, XX 00000
G. Xxxxxxx Xxxxx, Xx. Xxxxx X. Xxxxx
c/o Sutter Xxxx Ventures 00 Xxxxx Xxxxxx
000 Xxxx Xxxx Xxxx Xxxxxxxxx, XX 00000
Suite A200
Xxxx Xxxx, XX 00000
[Third Amended and Restated Voting Agreement]
-26-
27
Xxxxxxx X. Xxxxxxx, Xx., Xxxx Xxx Xxxxx
Trustee of the Younger Living Trust 000 Xxxxxx Xxxxxx
x/x Xxxxxx Xxxx Xxxxxxxx Xxx Xxxxx, XX 00000
000 Xxxx Xxxx Xxxx
Xxxxx X000
Xxxx Xxxx, XX 00000
Xxxxx Xxxx Zed International, Inc.
c/o Sutter Hill Ventures c/o Xxxxxx X. Xxxxxxxxx
755 Page Mill Road BankBoston, N.A.
Xxxxx X000 00-00-00
Xxxx Xxxx, Xx 00000 X.X. Xxx 0000
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxxx &
c/x Xxxxxx Xxxx Ventures Xxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxx 0000 Xxx Xxxxxxx
Xxxxx X000 Xxxx Xxxx Xxxx, Xxxx 00000
Xxxx Xxxx, Xx 00000
Xxxxx X. Xxxxxxx The Xxxx Cardiovascular Fdn.
c/o Sutter Xxxx Ventures Xxxxxx Xxxx, Treasurer
000 Xxxx Xxxx Xxxx 000 Xxxxxx Xxxx
Xxxxx X000 Xxxxxxxx Xxxx, XX 00000
Xxxx Xxxx, Xx 00000
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxx
x/x Xxxxxx Xxxx Xxxxxxxx 0 Xxx Xxxxxx'x Xxx
000 Xxxx Xxxx Xxxx Xxxxx, XX 00000
Suite A200
Xxxx Xxxx, Xx 00000
Genstar Investment Corporation J. Xxxx Xxxxxxxxx
Xxxxx Xxxxx # 0000 00 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxx X. Xxxxxxxxx, XX 00000
Xxxxxx Xxxx, XX 00000-0000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-27-
28
Merrill, Pickard, Xxxxxxxx & X. Xxxxxxxxxxxx Eagle
Eyre IV Limited Partnership Box 1197
0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX 00000
Xxxxx 0000
Xxxxxxx, XX 00000
H&D Investments II Xxxx Xxxxxx, MD
x/x Xxxx xxx Xxxx XXX 00 Xxxxxxx Xxxx
00 Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
Xxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxx, MD
0 Xxxxxx Xxxx 00 Xxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxxx Xxxxx, M.D. Interstock Anstalt fur Vermogens und
00 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx
Xxxxxxxxx, XX 00000 x/x Xxxxx Xxxxxxxxxxxx
Xxxxxxxxxxx 00
FL-9490 Vaduz
Liechtenstein
Xxxxx X. Xxxx Xxxxxxx & Xxxxx Xxxxxx
7 Fanueil Hall 0 Xxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxx Bayview Investors, Limited
00 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx & Xx.
Xxxxxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X Xxxxxxx Xxxxxxxx X. Xxxxxxx
80 Rollingwood Land 0000 Xxxxxxx Xxxx X000
Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-28-
29
HLM Partners VII, L.P. Orchid & Co., nominee for
HLM Management X. Xxxx Price Threshold
c/o Xxxxx Xxxx Fund III, L.P.
000 Xxxxxxxx Xxxxxx, #0000 x/x Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000 X. Xxxx Price Assoc. Inc.
000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
SVE Star Venture Enterprises Xxxxxx X. Xxxxxxx
No. V A German Civil Law c/o Aspect Medical Systems, Inc.
Partnership (with limitation of 2 Vision Drive
liability) Xxxxxx, XX 00000
c/o Xxxxxxx Xxxxxxxx
Star Venture Management
Xxxxxxxxxx. 0
X-00000 Xxxxxx
Xxxxxxx
SVM StarVentures Chancellor LGT Private Capital Partners
Managementgesellschaft mbH Nr.3 III, L.P.
& Co. Beteilungs KG c/o Xxxx Xxxxxxxxxxxx
c/o Xxxxxxx Xxxxxxxx 1166 Avenue of the Americas
Star Venture Management Xxx Xxxx, XX 00000
Xxxxxxxxxx. 0
X-00000 Xxxxxx
Xxxxxxx
Citiventure 96 Partnership, L.P. Fishers Island Partners
c/o Xxxx Xxxxxxxxxxxx c/o Xxxxxx Saint-Xxxxx, M.D.
1166 Avenue of the Americas 0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
00 Xxxxxx Xxxxxx 00000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000-0000
Xxxxx X. Xxxxxx Xxxxxxxx Xxxxxx Xxxxx
00 Xxxxxxx Xxxx 000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-29-
30
Xxxxxx X. Xxxxxxx, M.D. Xxxxxxxx X. Xxxx
x/x Xxxx. xx Xxxxxxxxxx, Xx X-0000X c/o X. X. Xxxx & Co.
Stanford University Hospital 0 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxx, XX 00000
Nina Rohrbasser Xxxxxx X. Xxxxx
c/o X. X. Xxxx & Co. 0 Xxxxxxxxx Xxxx
0 Xxxxxxx Xxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-30-
31
SCHEDULE II
KEY STOCKHOLDERS
Xxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
The Xxxx Cardiovascular
Research Foundation
c/o Xxxxxxx Xxxx, M.D.
000 Xxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxxx, #0
Xxxxxxxxxx, XX 00000
[Third Amended and Restated Right of Refusal and Co-Sale Agreement]
-31-
32
Schedule III
ASPECT MEDICAL SYSTEMS, INC.
INSTRUMENT OF ACCESSION
The undersigned, _______________________, as a condition precedent to
becoming the owner or holder of record of _________________ ( ) shares
of the Common Stock, $.01 par value per share, of Aspect Medical Systems, Inc.,
a Delaware corporation (the "Corporation"), hereby agrees to become a party to
and bound by that certain Third Amended and Restated Right of First Refusal and
Co-Sale Agreement, dated as of February __, 1998, by and among the Corporation
and other shareholders of the Corporation. This Instrument of Accession shall
take effect and shall become an integral part of the said Third Amended and
Restated Right of First Refusal and Co-Sale Agreement immediately upon execution
and delivery to the Corporation of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed
by or on behalf of the undersigned, as a sealed instrument under the laws of the
Commonwealth of Massachusetts, as of the date below written.
Signature: _____________________________
Address: _______________________________
_______________________________
Date: __________________________________
Accepted by:
ASPECT MEDICAL SYSTEM, INC.
By: __________________________
Date: ________________________
-32-
