INVESTORS’ RIGHTS AGREEMENT
Exhibit
10.35
INVESTORS’
RIGHTS AGREEMENT
THIS
INVESTORS’ RIGHTS AGREEMENT
(“Agreement”)
is
made as of the 20th day of February, 2008, by and among
Asyrmatos, Inc., a Delaware corporation (the “Company”),
and
Lumera Corporation, a Delaware corporation (the “Investor”).
RECITALS
WHEREAS,
the
Company and the Investor are parties to the Contribution Agreement of even
date
herewith (the “Contribution
Agreement”);
and
WHEREAS,
in
order to induce the Company to enter into the Contribution Agreement and
to
induce the Investor to contribute certain assets to the Company pursuant
to the
Contribution Agreement, the Investor and the Company hereby agree that this
Agreement shall govern the rights of the Investor to cause the Company to
register shares of Common Stock issuable to the Investor, to receive certain
information from the Company, and to participate in future equity offerings
by
the Company, and shall govern certain other matters as set forth in this
Agreement;
NOW,
THEREFORE,
the
parties hereby agree as follows:
1. Definitions. For
purposes of this Agreement:
1.1 “Affiliate”
means,
with respect to any specified Person, any other Person who or which, directly
or
indirectly, controls, is controlled by, or is under common control with such
specified Person, including without limitation any general partner, officer,
director or manager of such Person and any venture capital fund now or hereafter
existing that is controlled by or under common control with one or more general
partners or managing members of, or shares the same management company with,
such Person.
1.2 “Common
Stock”
means
shares of the Company’s common stock, par value $0.01 per share.
1.3 “Class
L Preferred Stock”
means
shares of the Company’s Class L Preferred Stock, par value $0.01 per
share.
1.4 “Damages”
means
any loss, damage, or liability (joint or several) to which a party hereto
may
become subject under the Securities Act, the Exchange Act, or other federal
or
state law, insofar as such loss, damage, or liability (or any action in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
of
the Company, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; (ii) an omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading; or (iii) any
violation or alleged violation by the indemnifying party of the Securities
Act,
the Exchange Act, any state securities law, or any rule or regulation
promulgated under the Securities Act, the Exchange Act, or any state securities
law.
1.5 “Derivative
Securities”
means
any securities or rights convertible into, or exercisable or exchangeable
for
(in each case, directly or indirectly), Common Stock, including options and
warrants.
1.6 “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
1.7 “Excluded
Registration”
means
(i) a registration relating to the sale of securities to employees of the
Company or a subsidiary pursuant to a stock option, stock purchase, or similar
plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii)
a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities; or (iv) a registration in
which
the only Common Stock being registered is Common Stock issuable upon conversion
of debt securities that are also being registered.
1.8 “Form
S-1”
means
such form under the Securities Act as in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted
by the
SEC.
1.9 “Form
S-2”
means
such form under the Securities Act as in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted
by the
SEC.
1.10 “Form
S-3”
means
such form under the Securities Act as in effect on the date hereof or any
registration form under the Securities Act subsequently adopted by the SEC
that
permits incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
1.11 “GAAP”
means
generally accepted accounting principles in the United States.
1.12 “Immediate
Family Member”
means
a
child,
stepchild,
grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, of a natural person referred to
herein.
1.13 “IPO”
means
the Company’s first underwritten public offering of its Common Stock under the
Securities Act.
1.14 “Key
Employee”
means
each
of
Xxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxx and Xxxxx XxXxxxx.
2
1.15 “Lumera
Director”
means
any director of the Company that the Investor is entitled to elect pursuant
to
the Company’s Certificate of Incorporation.
1.16 “New
Securities”
means,
collectively, equity securities of the Company, whether or not currently
authorized, as well as rights, options, or warrants to purchase such equity
securities, or securities of any type whatsoever that are, or may become,
convertible or exchangeable into or exercisable for such equity
securities.
1.17 “Person”
means
any individual, corporation, partnership, trust, limited liability company,
association or other
entity.
1.18 “Registrable
Securities”
means
(i) any Common Stock, or any Common Stock issued or issuable upon
conversion and/or exercise of any other securities of the Company, acquired
by
the Investor on or after the date hereof; and (ii) any Common Stock issued
as (or issuable upon the conversion or exercise of any warrant, right, or
other
security that is issued as) a dividend or other distribution with respect
to, or
in exchange for or in replacement of, the shares referenced in clause (i)
above, excluding in all cases, however, any Registrable Securities sold by
a
Person in a transaction in which the applicable rights under this Agreement
are
not assigned pursuant to Section
6.1,
and
excluding for purposes of Section
2
any
shares for which registration rights have terminated pursuant to Section
2.11
of this
Agreement.
1.19 “Registrable
Securities then outstanding”
means
the number of shares determined by adding the number of shares of outstanding
Common Stock that are Registrable Securities and the number of shares of
Common
Stock issuable pursuant to then exercisable and/or convertible securities
that
are Registrable Securities.
1.20 “SEC”
means
the Securities and Exchange Commission.
1.21 “SEC
Rule 144”
means
Rule 144 promulgated by the SEC under the Securities Act.
1.22 “SEC
Rule 144(k)”
means
Rule 144(k) promulgated by the SEC under the Securities Act.
1.23 “SEC
Rule 145”
means
Rule 145 promulgated by the SEC under the Securities Act.
1.24 “Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
1.25 “Selling
Expenses”
means
all underwriting discounts, selling commissions, and stock transfer taxes
applicable to the sale of Registrable Securities, and fees and disbursements
of
counsel for the Investor, except for the fees and disbursements of the Selling
Holder Counsel borne and paid by the Company as provided in Section
2.6.
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2. Registration
Rights.
The
Company covenants and agrees as follows:
2.1 Demand
Registration.
(a) Form
S-3 Demand.
If at
any time when it is eligible to use a Form S-3 registration statement, the
Company receives a request from the Investor that the Company file a Form
S-3
registration statement with respect to outstanding Registrable Securities
of the
Investor having an anticipated aggregate offering price, net of Selling
Expenses, of at least $1,000,000, then the Company shall, as soon as
practicable, and in any event within sixty (60) days after the date such
request
is given by the Investor, file a Form S-3 registration statement under the
Securities Act covering all Registrable Securities requested to be included
in
such registration by the Investor, subject to the limitations of Section
2.1(b)
and
Section 2.3.
(b) Notwithstanding
the foregoing obligations, if the Company furnishes to the Investor a
certificate signed by the Company’s chief executive officer stating that in the
good faith judgment of the Company’s Board of Directors it would be materially
detrimental to the Company and its stockholders for such registration statement
to either become effective or remain effective for as long as such registration
statement otherwise would be required to remain effective, because such action
would (i) materially interfere with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company; (ii)
require
premature disclosure of material information that the Company has a bona
fide
business purpose for preserving as confidential; or (iii) render the
Company unable to comply with requirements under the Securities Act or Exchange
Act, then the Company shall have the right to defer taking action with respect
to such filing, and any time periods with respect to filing or effectiveness
thereof shall be tolled correspondingly, for a period of not more than one
hundred and twenty (120) days after the request of the Investor is given;
provided,
however,
that
the Company may not invoke this right more than twice in any twelve (12)
month
period; and provided further
that the
Company shall not register any securities for its own account or that of
any
other stockholder during such period other than an Excluded
Registration.
(c) The
Company shall not be obligated to effect, or to take any action to effect,
any
registration pursuant to Section
2.1(a)
if (i)
Form S-3 is not available for such offering by the Investor, (ii) during
the
period that is thirty (30) days before the Company’s good faith estimate of the
date of filing of, and ending on a date that is ninety (90) days after the
effective date of, a Company-initiated registration, provided,
that
the Company is actively employing in good faith commercially reasonable efforts
to cause such registration statement to become effective; or (iii) if the
Company has effected two registrations pursuant to Section 2.1(a)
within
the twelve (12) month period immediately preceding the date of such request.
A
registration shall not be counted as “effected” for purposes of this
Section
2.1(c)
until
such time as the applicable registration statement has been declared effective
by the SEC, unless the Investor withdraws its request for such registration,
elect not to pay the registration expenses therefor, and
forfeit their right to one demand registration statement pursuant
to Section
2.6,
in
which case such withdrawn registration statement shall be counted as “effected”
for purposes of this Section 2.1(c).
4
2.2 Company
Registration.
If the
Company proposes to register (including, for this purpose, a registration
effected by the Company for stockholders other than the Investor) any of
its
securities under the Securities Act in connection with the public offering
of
such securities solely for cash (other than in an Excluded Registration),
the
Company shall, at such time, promptly give the Investor notice of such
registration. Upon the request of the Investor given within twenty (20) days
after such notice is given by the Company, the Company shall, subject to
the
provisions of Section
2.3,
cause
to be registered all of the Registrable Securities that the Investor has
requested to be included in such registration. The Company shall have the
right
to terminate or withdraw any registration initiated by it under this
Section
2.2
before
the effective date of such registration, whether or not the Investor has
elected
to include Registrable Securities in such registration. The expenses (other
than
Selling Expenses) of such withdrawn registration shall be borne by the Company
in accordance with Section
2.6.
2.3 Underwriting
Requirements.
(a) If,
pursuant to Section
2.1,
the
Investor intends to distribute the Registrable Securities covered by its
request
by means of an underwriting, it shall so advise the Company as a part of
its
request made pursuant to Section
2.1.
The
underwriter(s) will be selected by the Company and shall be reasonably
acceptable to the Investor. In such event, the right of the Investor to include
its Registrable Securities in such registration shall be conditioned upon
its
participation in such underwriting and the inclusion of its Registrable
Securities in the underwriting to the extent provided herein. The Investor
proposing to distribute its securities through such underwriting shall (together
with the Company as provided in Section
2.4(e))
enter
into an underwriting agreement in customary form with the underwriter(s)
selected for such underwriting. Notwithstanding any other provision of this
Section
2.3,
if the
managing underwriter(s) advise(s) the Investor in writing that marketing
factors
require a limitation on the number of shares to be underwritten, then the
number
of Registrable Securities that may be included in the underwriting shall
be in
proportion (as nearly as practicable) to the number of Registrable Securities
owned by the Investor or in such other proportion as shall mutually be agreed
to
by the Investor; provided,
however,
that
the number of Registrable Securities held by the Investor to be included
in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(b) In
connection with any offering involving an underwriting of shares of the
Company’s capital stock pursuant to Section
2.2,
the
Company shall not be required to include any of the Investor’s Registrable
Securities in such underwriting unless the Investor accepts the terms of
the
underwriting as agreed upon between the Company and its underwriters, and
then
only in such quantity as the underwriters in their sole discretion determine
will not jeopardize the success of the offering by the Company. If the total
number of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the number of securities
to
be sold (other than by the Company) that the underwriters in their reasonable
discretion determine is compatible with the success of the offering, then
the
Company shall be required to include in the offering only that number of
such
securities, including Registrable Securities, which the underwriters and
the
Company in their sole discretion determine will not jeopardize the success
of
the offering. Notwithstanding the foregoing, in no event shall (i) the number
of
Registrable Securities included in the offering be reduced unless all other
securities (other than securities to be sold by the Company) are first entirely
excluded from the offering, or (ii) the number of Registrable Securities
included in the offering be reduced below thirty percent (30%) of the total
number of securities included in such offering, unless such offering is the
IPO
in which case the Investor may be excluded further if the Underwriters make
the
determination described above and no other stockholder's securities are included
in such offering.
5
(c) For
purposes of Section
2.1,
a
registration shall not be counted as “effected” if, as a result of an exercise
of the underwriter’s cutback provisions in Section
2.3(a),
fewer
than fifty percent (50%) of the total number of Registrable Securities that
the
Investor has requested to be included in such registration statement are
actually included.
2.4 Obligations
of the Company.
Whenever
required under this Section
2
to
effect the registration of any Registrable Securities, the Company shall,
as
expeditiously as reasonably possible:
(a) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such
registration statement to become effective and, upon the request of the
Investor, keep such registration statement effective for a period of up to
one
hundred twenty (120) days or, if earlier, until the distribution contemplated
in
the registration statement has been completed; provided,
however,
that
(i) such one hundred twenty (120) day period shall be extended for a period
of
time equal to the period the Investor refrains, at the request of an underwriter
of Common Stock (or other securities) of the Company, from selling any
securities included in such registration, and (ii) in the case of any
registration of Registrable Securities on Form S-3 that are intended to be
offered on a continuous or delayed basis, subject to compliance with applicable
SEC rules, such one hundred twenty (120) day period shall be extended for
up to
120 additional days, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold;
(b) prepare
and file with the SEC such amendments and supplements to such registration
statement, and the prospectus used in connection with such registration
statement, as may be necessary to comply with the Securities Act in order
to
enable the disposition of all securities covered by such registration
statement;
(c) furnish
to the Investor such numbers of copies of a prospectus, including a preliminary
prospectus, as required by the Securities Act, and such other documents as
the
Investor may reasonably request in order to facilitate the disposition of
its
Registrable Securities;
6
(d) use
its
commercially reasonable efforts to register and qualify the securities covered
by such registration statement under such other securities or blue-sky laws
of
such jurisdictions as shall be reasonably requested by the Investor;
provided that
the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions, unless
the
Company is already subject to service in such jurisdiction and except as
may be
required by the Securities Act;
(e) in
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form,
with
the underwriter(s) of such offering;
(f) use
its
commercially reasonable efforts to cause all such Registrable Securities
covered
by such registration statement to be listed on a national securities exchange
or
trading system and each securities exchange and trading system (if any) on
which
similar securities issued by the Company are then listed;
(g) provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
to this Agreement and provide a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration;
(h) promptly
make available for inspection by the Investor, any managing underwriter(s)
participating in any disposition pursuant to such registration statement,
and
any attorney or accountant or other agent retained by any such underwriter
or
selected by the Investor, all financial and other records, pertinent corporate
documents, and properties of the Company, and cause the Company’s officers,
directors, employees, and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant,
or
agent, in each case, as necessary or advisable to verify the accuracy of
the
information in such registration statement and to conduct appropriate due
diligence in connection therewith;
(i) notify
the Investor, promptly after the Company receives notice thereof, of the
time
when such registration statement has been declared effective or a supplement
to
any prospectus forming a part of such registration statement has been filed;
and
(j) after
such registration statement becomes effective, notify the Investor of any
request by the SEC that the Company amend or supplement such registration
statement or prospectus.
2.5 Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take
any
action pursuant to this Section
2
with
respect to the Registrable Securities of the Investor that it shall furnish
to
the Company such information regarding itself, the Registrable Securities
held
by it, and the intended method of disposition of such securities as is
reasonably required to effect the registration of its Registrable
Securities.
7
2.6 Expenses
of Registration.
All
expenses (other than Selling Expenses) incurred in connection with
registrations, filings, or qualifications pursuant to Section 2,
including all registration, filing, and qualification fees; printers’ and
accounting fees; fees and disbursements of counsel for the Company; and the
reasonable fees and disbursements, not to exceed $5,000 of one counsel for
the
Investor, shall be borne and paid by the Company; provided,
however,
that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section
2.1
if the
registration request is subsequently withdrawn at the request of the Investor,
unless the Investor agrees to forfeit its right to one registration pursuant
to
Section
2.1(a),
as the
case may be; provided further
that if,
at the time of such withdrawal, the Investor has learned of a material adverse
change in the condition or business of the Company from that known to the
Investor at the time of its request and has withdrawn the request with
reasonable promptness after learning of such information, then the Investor
shall not be required to pay any of such expenses and will not forfeit its
right
to one registration pursuant to Section
2.1(a).
All
Selling Expenses relating to Registrable Securities registered pursuant to
this
Section 2
shall be
borne and paid by the Investor.
2.7 Indemnification.
If any
Registrable Securities are included in a registration statement under this
Section
2:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless the
Investor, and the partners, members, officers, directors, and stockholders
of
the Investor; legal counsel and accountants for the Investor; any underwriter
(as defined in the Securities Act) for the Investor; and each Person, if
any,
who controls the Investor or underwriter within the meaning of the Securities
Act or the Exchange Act, against any Damages, and the Company will pay to
the
Investor, underwriter, controlling Person, or other aforementioned Person
any
legal or other expenses reasonably incurred thereby in connection with
investigating any matter or defending any proceeding from which Damages may
result, as such expenses are incurred; provided,
however,
that
the indemnity agreement contained in this Section
2.8(a)
shall
not apply to amounts paid in settlement of any such investigation or proceeding
if such settlement is effected without the consent of the Company, which
consent
shall not be unreasonably withheld, nor shall the Company be liable for any
Damages to the extent that they arise out of or are based upon actions or
omissions made in reliance upon and in conformity with written information
furnished by or on behalf of the Investor, underwriter, controlling Person,
or
other aforementioned Person expressly for use in connection with such
registration.
(b) To
the
extent permitted by law, the Investor will indemnify and hold harmless the
Company, and each of its directors, each of its officers who has signed the
registration statement, each Person (if any), who controls the Company within
the meaning of the Securities Act, legal counsel and accountants for the
Company, any underwriter (as defined in the Securities Act), the Investor
and
any controlling Person of any such underwriter, against any Damages, in each
case only to the extent that such Damages arise out of or are based upon
actions
or omissions made in reliance upon and in conformity with written information
furnished by or on behalf of the Investor expressly for use in connection
with
such registration; and the Investor will pay to the Company and each other
aforementioned Person any legal or other expenses reasonably incurred thereby
in
connection with investigating any investigation or defending any proceeding
from
which Damages may result, as such expenses are incurred; provided,
however,
that
the indemnity agreement contained in this Section
2.8(b)
shall
not apply to amounts paid in settlement of any such investigation or proceeding
if such settlement is effected without the consent of the Investor, which
consent shall not be unreasonably withheld; and provided
further
that in
no event shall any indemnity under this Section
2.8(b)
exceed
the proceeds from the offering received by the Investor (net of any Selling
Expenses paid by the Investor), except in the case of fraud or willful
misconduct by the Investor.
8
(c) Promptly
after receipt by an indemnified party under this Section 2.8
of
notice of the commencement of any action (including any governmental action)
for
which a party may be entitled to indemnification hereunder, such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section
2.8,
give
the indemnifying party notice of the commencement thereof. The indemnifying
party shall have the right to participate in such action and, to the extent
the
indemnifying party so desires, participate jointly with any other indemnifying
party to which notice has been given, and to assume the defense thereof with
counsel mutually satisfactory to the parties; provided,
however,
that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such action. The failure to give notice to
the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section
2.8,
to the
extent that such failure materially prejudices the indemnifying party’s ability
to defend such action. The failure to give notice to the indemnifying party
will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section
2.8.
(d) Notwithstanding
anything else herein to the contrary, the foregoing indemnity agreements
of the
Company and the Investor are subject to the condition that, insofar as they
relate to any Damages arising from any untrue statement or alleged untrue
statement of a material fact contained in, or omission or alleged omission
of a
material fact from, a preliminary prospectus (or necessary to make the
statements therein not misleading) that has been corrected in the form of
prospectus included in the registration statement at the time it becomes
effective, or any amendment or supplement thereto filed with the SEC pursuant
to
Rule 424(b) under the Securities Act (the “Final
Prospectus”),
such
indemnity agreement shall not inure to the benefit of any Person if a copy
of
the Final Prospectus was furnished to the indemnified party and such indemnified
party failed to deliver, at or before the confirmation of the sale of the
shares
registered in such offering, a copy of the Final Prospectus to the Person
asserting the loss, liability, claim, or damage in any case in which such
delivery was required by the Securities Act.
9
(e) To
provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any party otherwise entitled
to
indemnification hereunder makes a claim for indemnification pursuant to this
Section
2.8
but it
is judicially determined (by the entry of a final judgment or decree by a
court
of competent jurisdiction and the expiration of time to appeal or the denial
of
the last right of appeal) that such indemnification may not be enforced in
such
case, notwithstanding the fact that this Section
2.8
provides
for indemnification in such case, or (ii) contribution under the Securities
Act
may be required on the part of any party hereto for which indemnification
is
provided under this Section 2.8,
then,
and in each such case, such parties will contribute to the aggregate losses,
claims, damages, liabilities, or expenses to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect
the
relative fault of each of the indemnifying party and the indemnified party
in
connection with the statements, omissions, or other actions that resulted
in
such loss, claim, damage, liability, or expense, as well as to reflect any
other
relevant equitable considerations. The relative fault of the indemnifying
party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact,
or
the omission or alleged omission of a material fact, relates to information
supplied by the indemnifying party or by the indemnified party and the parties’
relative intent, knowledge, access to information, and opportunity to correct
or
prevent such statement or omission; provided,
however,
that,
in any such case, (x) the Investor will not be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by the Investor pursuant to such registration statement,
and
(y) no Person guilty of fraudulent misrepresentation (within the meaning
of
section 11(f) of the Securities Act) will be entitled to contribution from
any
Person who was not guilty of such fraudulent misrepresentation; and provided further
that in
no event shall the Investor’s liability pursuant to this Section
2.8(e),
when
combined with the amounts paid or payable by the Investor pursuant to
Section
2.8(b),
exceed
the proceeds from the offering received by the Investor (net of any Selling
Expenses), except in the case of willful misconduct or fraud by the
Investor.
(f) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(g) Unless
otherwise superseded by an underwriting agreement entered into in connection
with the underwritten public offering, the obligations of the Company and
the
Investor under this Section
2.8
shall
survive the completion of any offering of Registrable Securities in a
registration under this Section
2,
and
otherwise shall survive the termination of this Agreement.
10
2.8 Reports
Under Exchange Act.
With a
view to making available to the Investor the benefits of SEC Rule 144 and
any
other rule or regulation of the SEC that may at any time permit the Investor
to
sell securities of the Company to the public without registration or pursuant
to
a registration on Form S-3, the Company shall:
(a) make
and
keep available adequate public information, as those terms are understood
and
defined in SEC Rule 144, at all times after the effective date of the
registration statement filed by the Company for the IPO;
(b) use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and
the Exchange Act (at any time after the Company has become subject to such
reporting requirements); and
(c) furnish
to the Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) to the extent accurate, a written statement by
the
Company that it has complied with the reporting requirements of SEC Rule
144 (at
any time after ninety (90) days after the effective date of the registration
statement filed by the Company for the IPO), the Securities Act, and the
Exchange Act (at any time after the Company has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may
be
resold pursuant to Form S-3 (at any time after the Company so qualifies);
(ii) a
copy of the most recent annual or quarterly report of the Company and such
other
reports and documents so filed by the Company; and (iii) such other information
as may be reasonably requested in availing the Investor of any rule or
regulation of the SEC that permits the selling of any such securities without
registration (at any time after the Company has become subject to the reporting
requirements under the Exchange Act) or pursuant to Form S-3 (at any time
after
the Company so qualifies to use such form).
2.9 Limitations
on Subsequent Registration Rights.
From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Investor, enter into any agreement with any holder
or
prospective holder of any securities of the Company that would allow such
holder
or prospective holder (i) to include such securities in any registration
unless,
under the terms of such agreement, such holder or prospective holder may
include
such securities in any such registration only to the extent that the inclusion
of such securities will not reduce the number of the Registrable Securities
of
the Investor that are included or (ii) to demand registration of any securities
held by the Investor..
2.10 “Market
Stand-off” Agreement.
The
Investor hereby agrees that it will not, without the prior written consent
of
the managing underwriter, during the period commencing on the date of the
final
prospectus relating to the IPO and ending on the date specified by the Company
and the managing underwriter (such period not to exceed one hundred eighty
(180)
days, which period may be extended upon the request of the managing underwriter
for an additional period of up to fifteen (15) days if the Company issues
or
proposes to issue an earnings or other public release within fifteen (15)
days
of the expiration of the 180-day lockup period), (i) lend; offer; pledge;
sell;
contract to sell; sell any option or contract to purchase; purchase any option
or contract to sell; grant any option, right, or warrant to purchase; or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock held immediately before
the effective date of the registration statement for such offering or
(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of such
securities, whether any such transaction described in clause (i) or (ii)
above
is to be settled by delivery of Common Stock or other securities, in cash,
or
otherwise. The foregoing provisions of this Section
2.10
shall
apply only to the IPO, shall not apply to the sale of any shares to an
underwriter pursuant to an underwriting agreement, and shall be applicable
to
the Investor only if all officers, directors, and stockholders individually
owning more than one percent (1%) of the Company’s outstanding Common Stock
(after giving effect to conversion into Common Stock of all outstanding Class
L
Preferred Stock) are subject to the same restrictions. The underwriters in
connection with the IPO are intended third-party beneficiaries of this
Section
2.10
and
shall have the right, power, and authority to enforce the provisions hereof
as
though they were a party hereto. The Investor further agrees to execute such
agreements as may be reasonably requested by the underwriters in connection
with
the IPO that are consistent with this Section
2.10
or that
are necessary to give further effect thereto. Any discretionary waiver or
termination of the restrictions of any or all of such agreements by the Company
or the underwriters shall apply to the Investor to the extent that it is
subject
to such agreements.
11
2.11 Termination
of Registration Rights. The
right
of the Investor to request registration or inclusion of Registrable Securities
in any registration pursuant to Section
2.1
or
Section
2.2
shall
terminate upon the earliest to occur of:
(a) the
closing of a Deemed Liquidation Event, as such term is defined in the Company’s
Certificate of Incorporation; or
(b) when
all
of the Investor’s Registrable Securities could be sold without restriction under
SEC Rule 144(k) within any 90 days period.
3. Information
Rights.
3.1 Delivery
of Financial Statements. The
Company shall deliver to the Investor:
(a) as
soon
as practicable, but in any event within ninety (90) days after the end of
each
fiscal year of the Company, (i) a balance sheet as of the end of such year,
(ii)
statements of income and of cash flows for such year, and (iii) a statement
of
stockholders’ equity as of the end of such year;
(b) as
soon
as practicable, but in any event within forty-five (45) days after the end
of
each of the first three (3) quarters of each fiscal year of the Company,
unaudited statements of income and of cash flows for such fiscal quarter,
and an
unaudited balance sheet and a statement of stockholders’ equity as of the end of
such fiscal quarter,
all
prepared in accordance with GAAP (except that such financial statements may
(i)
be subject to normal year-end audit adjustments and (ii) not contain all
notes
thereto that may be required in accordance with GAAP);
12
(c) as
soon
as practicable, but in any event thirty (30) days before the end of each
fiscal
year, a budget and business plan for the next fiscal year (collectively,
the
“Budget”),
approved by the Board of Directors and prepared on a monthly basis, including
balance sheets, income statements, and statements of cash flow for such months
and, promptly after prepared, any other budgets or revised budgets prepared
by
the Company;
(d) such
other information relating to the financial condition, business, prospects,
or
corporate affairs of the Company as the Investor may from time to time
reasonably request; provided,
however,
that
the Company shall not be obligated under this Section
3.1
to
provide information (i) that the Company reasonably determines in good faith
to
be a trade secret or confidential information (unless covered by an enforceable
confidentiality agreement, in form acceptable to the Company) or (ii) the
disclosure of which would adversely affect the attorney-client privilege
between
the Company and its counsel.
If,
for
any period, the Company has any subsidiary whose accounts are consolidated
with
those of the Company, then in respect of such period the financial statements
delivered pursuant to the foregoing sections shall be the consolidated and
consolidating financial statements of the Company and all such consolidated
subsidiaries.
Notwithstanding
anything else in this Section 3.1 to the contrary, the Company may cease
providing the information set forth in this Section 3.1 during the period
starting with the date sixty (60) days before the Company’s good-faith estimate
of the date of filing of a registration statement; provided that the Company’s
covenants under this Section 3.1 shall be reinstated at such time as the
Company
is no longer actively employing its commercially reasonable efforts to cause
such registration statement to become effective.
3.2 Inspection.
The
Company shall permit the Investor, at the Investor’s expense, to visit and
inspect the Company’s properties; examine its books of account and records; and
discuss the Company’s affairs, finances, and accounts with its officers, during
normal business hours of the Company as may be reasonably requested by the
Investor; provided,
however,
that
the Company shall not be obligated pursuant to this Section
3.2
to
provide access to any information that it reasonably considers to be a trade
secret or confidential information (unless covered by an enforceable
confidentiality agreement, in form acceptable to the Company) or the disclosure
of which would adversely affect the attorney-client privilege between the
Company and its counsel.
3.3 Termination
of Information Rights.
The
covenants set forth in Section
3.1
and
Section
3.2
shall
terminate and be of no further force or effect (i) immediately before the
consummation of the IPO, or (ii) when the Company first becomes subject to
the periodic reporting requirements of section 12(g) or 15(d) of the Exchange
Act, or (iii) upon a Deemed Liquidation Event, as such term is defined in
the
Company’s Certificate of Incorporation, whichever event occurs
first.
13
3.4 Confidentiality.
The
Investor will keep confidential and will not disclose, divulge, or use for
any
purpose (other than to monitor its investment in the Company) any
confidential information obtained from the Company pursuant to the terms
of this
Agreement (including notice of the Company’s intention to file a registration
statement), unless such confidential information (a) is known or becomes
known
to the
public in general (other than as a result of a breach of this Section
3.4
by the
Investor), (b) is or has been independently developed or conceived by the
Investor without use of the Company’s confidential information, or (c) is or has
been made known or disclosed to the Investor by a third party without a breach
of any obligation of confidentiality such third party may have to the Company;
provided,
however,
that
the Investor may disclose confidential information (i) to its attorneys,
accountants, consultants, and other professionals to the extent necessary
to
obtain their services in connection with monitoring its investment in the
Company; (ii) to any prospective purchaser of any Registrable Securities
from
the Investor, if such prospective purchaser agrees to be bound by the provisions
of this Section
3.4;
(iii)
to any existing or prospective Affiliate, partner, member, stockholder, or
wholly owned subsidiary of the Investor in the ordinary course of business,
provided that
the
Investor informs such Person that such information is confidential and directs
such Person to maintain the confidentiality of such information;
or (iv)
as may otherwise be required by law, provided that
the
Investor promptly notifies the Company of such disclosure and takes reasonable
steps to minimize the extent of any such required disclosure.
4. Rights
to Future Stock Issuances.
4.1 Right
of First Offer.
Subject
to the terms and conditions of this Section
4.1
and
applicable securities laws, if the Company proposes to offer or sell any
New
Securities, the Company shall first offer such New Securities to the Investor.
The Investor shall be entitled to apportion the right of first offer hereby
granted to it among itself and its Affiliates in such proportions as it deems
appropriate.
(a) The
Company shall give notice (the “Offer
Notice”)
to the
Investor, stating (i) its bona fide intention to offer such New Securities,
(ii) the number of such New Securities to be offered, and (iii) the price
and
terms, if any, upon which it proposes to offer such New Securities.
(b) By
notification to the Company within twenty (20) days after the Offer Notice
is
given, the Investor may elect to purchase or otherwise acquire, at the price
and
on the terms specified in the Offer Notice, up to that portion of such New
Securities which equals the proportion that the Common Stock issued and held,
or
issuable (directly or indirectly) upon conversion and/or exercise, as
applicable, of the Class L Preferred Stock and any other Derivative Securities
then held, by the Investor bears to the total Common Stock of the Company
then
outstanding (assuming full conversion and/or exercise, as applicable, of
all
Class L Preferred Stock and other Derivative Securities). The closing of
any
sale pursuant to this Section 4.1(b) shall occur within the later of one
hundred twenty (120) days of the date that the Offer Notice is given and
the
date of initial sale of New Securities pursuant to Section
4.1(c).
14
(c) If
all
New Securities referred to in the Offer Notice are not elected to be purchased
or acquired as provided in Section
4.1(b),
the
Company may, during the ninety (90) day period following the expiration of
the
periods provided in Section
4.1(b),
offer
and sell the remaining unsubscribed portion of such New Securities to any
Person
or Persons at a price not less than, and upon terms no more favorable to
the
offeree than, those specified in the Offer Notice. If the Company does not
enter
into an agreement for the sale of the New Securities within such period,
or if
such agreement is not consummated within thirty (30) days of the execution
thereof, the right provided hereunder shall be deemed to be revived and such
New
Securities shall not be offered unless first reoffered to the Investor in
accordance with this Section
4.1.
(d) The
right
of first offer in this Section
4.1
shall
not be applicable to (i) Exempted Securities (as defined in the Company’s
Certificate of Incorporation); and (ii) shares of Common Stock issued in
the IPO.
4.2 Termination.
The
covenants set forth in Section
4.1
shall
terminate and be of no further force or effect (i) immediately before the
consummation of the IPO, (ii) when the Company first becomes subject to the
periodic reporting requirements of section 12(g) or 15(d) of the Exchange
Act,
or (iii) upon a Deemed Liquidation Event, as such term is defined in the
Company’s Certificate of Incorporation, whichever event occurs
first.
5. Additional
Covenants.
5.1 Employee
Agreements.
The
Company will cause (i) each person now or hereafter employed by it or by
any
subsidiary (or engaged by the Company or any subsidiary as a
consultant/independent contractor) with access to confidential information
and/or trade secrets to enter into a nondisclosure and proprietary rights
assignment agreement and (ii) each Key Employee to enter into a one (1) year
non-competition and non-solicitation agreement, substantially in the form
approved by the Board of Directors. In addition, the Company shall not amend,
modify, terminate, waive, or otherwise alter, in whole or in part, any of
the
above-referenced agreements or any restricted stock agreement between the
Company and any employee, without the consent of the member of the Board
of
Directors elected by the Investor.
5.2 Employee
Vesting.
Unless
otherwise approved by the Board of Directors, all future employees and
consultants of the Company who purchase, receive options to purchase, or
receive
awards of shares of the Company’s capital stock after the date hereof shall be
required to execute restricted stock or option agreements, as applicable,
providing for (i) vesting of shares over a four (4) year period, with the
first twenty-five percent (25%) of such shares vesting following one (1)
year
of
continued employment or service, and the remaining shares vesting in equal
monthly installments over the following three (3) years, and (ii) a market
stand-off provision substantially similar to that in Section
2.11.
In
addition, unless otherwise approved by the Board of Directors, the Company
shall
retain a “right of first refusal” on employee transfers until the Company’s IPO
and shall have the right to repurchase unvested shares at cost upon termination
of employment of a holder of restricted stock.
15
5.3 Matters
Requiring Investor Director Approval. So long as the Investor is entitled to
elect a member of the Board of Directors, the Company hereby covenants and
agrees with the Investor that it shall not, without approval of the Board
of
Directors, which approval must include the affirmative vote of the Lumera
Director:
(a) make,
or
permit any subsidiary to make, any loan or advance to, or own any stock or
other
securities of, any subsidiary or other corporation, partnership, or other
entity
unless it is wholly owned by the Company;
(b) make,
or
permit any subsidiary to make, any loan or advance to any Person, including,
without limitation, any employee or director of the Company or any subsidiary,
except advances and similar expenditures in the ordinary course of business
or
under the terms of an employee stock or option plan approved by the Board
of
Directors;
(c) guarantee,
directly or indirectly, or permit any subsidiary to guarantee, directly or
indirectly, any indebtedness except for trade accounts of the Company or
any
subsidiary arising in the ordinary course of business;
(d) make
any
investment inconsistent with the Lumera Corporation investment policy, which
is
attached hereto as Exhibit
A;
(e) incur
any
aggregate indebtedness in excess of $25,000 that is not already included
in a
budget approved by the Board of Directors (including the approval of the
Class L
Director), other than trade credit incurred in the ordinary course of business;
(f) otherwise
enter into or be a party to any transaction with any director, officer, or
employee of the Company or any “associate” (as defined in Rule 12b-2 promulgated
under the Exchange Act) of any such Person, except for transactions contemplated
by this Agreement or the Purchase Agreement;
(g) change
the principal business of the Company, enter new lines of business, exit
the
current line of business or acquire (by purchase of assets, stock or otherwise)
another business or entity; or
(h) sell,
assign, license, pledge, or encumber material technology or intellectual
property, other than licenses granted in the ordinary course of
business.
5.4 Meetings
of the Board of Directors.
Unless
otherwise determined by the vote of a majority of the directors then in office,
the Board of Directors shall meet at least quarterly, in accordance with
an
agreed-upon schedule.
16
5.5 Successor
Indemnification.
If
the
Company or any of its successors or assignees (i) consolidates with or merges
into any other Person and is not the continuing or surviving corporation
or
entity of such consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any Person, then, and in
each
such case, to the extent necessary, proper provision shall be made so that
the
successors and assignees of the Company assume the obligations of the Company
with respect to indemnification of members of the Board of Directors as in
effect immediately before such transaction, whether such obligations are
contained in the Company’s Bylaws, its Certificate of Incorporation, or
elsewhere, as the case may be.
5.6 Committees
of the Board.
If the
Board establishes any Board committees, the Lumera Director shall have the
right
to serve on each such committee.
5.7 Board
Expenses.
The
Company shall reimburse the non-employee directors for all reasonable
out-of-pocket travel expenses incurred (consistent with the Company’s travel
policy) in connection with attending meetings of the Board of
Directors.
5.8 Call
Right.
The
Company agrees that all of the Common and Preferred Stock of the Company
which
has been issued and will be issued shall be subject to the right of the Investor
to purchase all of the issued and outstanding Common and Preferred Stock
not
then held by it (the "Call Right") upon the fourth anniversary of the date
of
this Agreement (the "Call Date"). Such right shall be exercised, if at all,
by
delivery of a written notice of exercise to the President of the Company
within
sixty (60) days of the Call Date. The Call Right may only be exercised as
to all
of the Common and Preferred Stock outstanding as of the Call Date and no
partial
exercise of the Call Right shall be permitted. Upon the exercise of the Call
Right, the Investor shall be entitled to purchase all of the outstanding
Common
and Preferred Stock of the Company, as of the Call Date, at its fair market
value, as determined by an independent appraiser that is mutually satisfactory
to the Company and the Investor. As part of such valuation, the appraiser
shall
not take into account discounts for the lack of marketability of the stock
or
the lack of a controlling stock interest in the Corporation which collectively
exceed 20%. The Call Right shall expire, if the Investor fails to exercise
the
Call Right at the time and in the manner set forth herein.
5.9 Termination
of Covenants.
The
covenants set forth in this Section
5,
except
for Section
5.5,
shall
terminate and be of no further force or effect (i) immediately before the
consummation of the IPO, (ii) when the Company first becomes subject to the
periodic reporting requirements of section 12(g) or 15(d) of the Exchange
Act,
or (iii) upon a Deemed Liquidation Event, as such term is defined in the
Company’s Certificate of Incorporation, whichever event occurs first.
6. Miscellaneous.
6.1 Successors
and Assigns.
The
rights under this Agreement may be assigned (but only with all related
obligations) by the Investor to a transferee of Registrable Securities
that
(i)
is an Affiliate, partner, member, limited partner, retired partner, retired
member, or stockholder of the Investor; (ii) after
such transfer, holds at least one hundred thousand (100,000) shares of
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations, and other recapitalizations); provided,
however,
that
(x) the Company is, within a reasonable time after such transfer, furnished
with
written notice of the name and address of such transferee and the Registrable
Securities with respect to which such rights are being transferred; and
(y) such transferee agrees in a written instrument delivered to the Company
to be bound by and subject to the terms and conditions of this Agreement,
including the provisions of Section
2.11.
For the
purposes of determining the number of shares of Registrable Securities held
by a
transferee, the holdings of a
transferee that
is
an Affiliate, limited partner, retired partner, member, retired member, or
stockholder of the
Investor
shall be
aggregated together and with those of the transferring Holder; provided further
that all
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising
any
rights, receiving notices, or taking any action under this Agreement. The
terms
and conditions of this Agreement inure to the benefit of and are binding
upon
the respective successors and permitted assignees of the parties. Nothing
in
this Agreement, express or implied, is intended to confer upon any party
other
than the parties hereto or their respective successors and permitted assignees
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
Notwithstanding the foregoing, any transferee of Common Stock or Preferred
Stock
shall be subject to the obligations of this Agreement, including the obligations
of Section 2.11.
17
6.2 Governing
Law;
Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the General
Corporation Law of the State of Delaware as to matters within the scope thereof,
and as to all other matters shall be governed by and construed in accordance
with the internal laws of the State of Delaware, without regard to its
principles of conflicts of laws. The
parties (a) hereby irrevocably and unconditionally submit to the jurisdiction
of
the state and federal courts located in the State of Delaware for the purpose
of
any suit, action or other proceeding arising out of or based upon this Agreement
(“Covered
Matters”),
(b)
agree not to commence any suit, action or other proceeding arising out of
or
based upon any Covered Matters except in the state courts or federal courts
located in the State of Delaware, and (c) hereby waive, and agree not to
assert,
by way of motion, as a defense, or otherwise, in any such suit, action or
proceeding, any claim that it is not subject personally to the jurisdiction
of
the above-named courts, that its property is exempt or immune from attachment
or
execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that
this
Agreement or the subject matter of any Covered Matter may not be enforced
in or
by such court.
6.3 Counterparts;
Facsimile.
This
Agreement may also be executed and delivered by facsimile signature and 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.
6.4 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are for convenience only and
are not
to be considered in construing or interpreting this Agreement.
6.5 Notices.
All
notices, requests, and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given, delivered
and received (i) upon personal delivery to the party to be notified; (ii)
when
sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient, and if not so confirmed, then on the next business
day;
(iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one (1) business day after
the business day of deposit with a nationally recognized overnight courier,
specifying next-day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at their addresses
as set
forth on Schedule
A
hereto,
or to the principal office of the Company and to the attention of the Chief
Executive Officer, in the case of the Company, or to such email address,
facsimile number, or address as subsequently modified by written notice given
in
accordance with this Section
6.5.
If
notice is given to the Investor, a copy shall also be sent to Xxxxxxxxxxx
Xxxxxx
at Ropes & Xxxx LLP, Xxx Xxxxxxxxxxx Xxxxxx Xxxxx 0000, Xxx Xxxxxxxxx, XX
00000.
18
6.6 Amendments
and Waivers.
Any term
of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, and
either retroactively or prospectively) only with the written consent of the
Company and the Investor; provided,
that
any
provision hereof may be waived by any waiving party on such party’s own behalf,
without the consent of any other party. No waivers of or exceptions to any
term,
condition, or provision of this Agreement, in any one or more instances,
shall
be deemed to be or construed as a further or continuing waiver of any such
term,
condition, or provision.
6.7 Severability.
In case
any one or more of the provisions contained in this Agreement is for any
reason
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, or unenforceable provision shall be
reformed and construed so that it will be valid, legal, and enforceable to
the
maximum extent permitted by law.
6.8 Aggregation
of Stock.
All
shares of Registrable Securities held or acquired by Affiliates shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
6.9 Entire
Agreement.
This
Agreement (including any Schedules and Exhibits hereto), the Restricted
Certificate and the other Transaction Documents (as defined in the Purchase
Agreement) constitutes the full and entire understanding and agreement among
the
parties with respect to the subject matter hereof, and any other written
or oral
agreement relating to the subject matter hereof existing between the parties
is
expressly canceled.
6.10 Delays
or Omissions.
No
delay or omission to exercise any right, power, or remedy accruing to any
party
under this Agreement, upon any breach or default of any other party under
this
Agreement, shall impair any such right, power, or remedy of such nonbreaching
or
non-defaulting party, nor shall it be construed to be a waiver of or
acquiescence to any such breach or default, or to 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 party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, whether under this
Agreement or by law or otherwise afforded to any party, shall be cumulative
and
not alternative.
6.11 Further
Assurances.
At any
time or from time to time after the date hereof, the parties agree to cooperate
with each other, and at the request of any other party, to execute and deliver
any further instruments or documents and to take all such further action
as the
other party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby and to otherwise carry
out
the intent of the parties hereunder.
[Remainder
of Page Intentionally Left Blank]
19
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
|
ASYRMATOS,
INC.
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Chief
Executive Officer
|
|
LUMERA
CORPORATION
|
|
|
By:
|
/s/
Xxxxx X. Xxxxx
|
|
Name:
|
Xxxxx
X. Xxxxx
|
|
Title:
|
Chief
Financial Officer
|
