Exhibit 10.11
________________________________________________________________________________
GENOMICA CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
March 13, 2000
________________________________________________________________________________
Table Of Contents
Page
1. General........................................................ 1
1.1 Termination of Prior Agreement........................... 1
1.2 Definitions.............................................. 1
2. Restrictions On Transfer....................................... 3
2.1 Restrictions on Transfer................................. 3
2.2 "Market Stand Off" Agreement............................. 4
3. Registration................................................... 4
3.1 Demand Registration...................................... 4
3.2 Piggyback Registrations.................................. 6
3.3 Form S-3 Registration.................................... 7
3.4 Registration Expenses.................................... 8
3.5 Obligations of the Company............................... 8
3.6 Termination of Registration Rights....................... 9
3.7 Furnish Information...................................... 9
3.8 Delay of Registration.................................... 9
3.9 Assignment of Registration Rights........................ 9
3.10 Amendment or Waiver of Registration Rights............... 9
3.11 Indemnification.......................................... 10
3.12 Rule 144 Reporting....................................... 12
4. Covenants of the Company....................................... 12
4.1 Basic Financial Information and Reporting................ 12
4.2 Inspection Rights........................................ 12
4.3 Confidentiality of Records............................... 13
4.4 Reservation of Common Stock.............................. 13
4.5 SEC Compliance........................................... 13
4.6 Proprietary Information and Inventions Agreement......... 13
4.7 Termination of Covenants................................. 13
5. Preemptive Rights.............................................. 13
5.1 Subsequent Offerings..................................... 13
5.2 Exercise of Rights....................................... 13
i.
Table Of Contents
(Continued)
Page
5.3 Issuance of Equity Securities to Other Investors.......... 14
5.4 Termination of Preemptive Rights.......................... 14
5.5 Transfer of Preemptive Rights............................. 14
5.6 Excluded Securities....................................... 14
6. Miscellaneous................................................... 15
6.1 Governing Law............................................. 15
6.2 Successors and Assigns.................................... 15
6.3 Severability.............................................. 15
6.4 Amendment and Waiver...................................... 15
6.5 Notices, Etc.............................................. 15
6.6 Attorneys' Fees........................................... 16
6.7 Titles and Subtitles...................................... 16
6.8 Complete Agreement........................................ 16
6.9 Counterparts.............................................. 16
ii.
GENOMICA CORPORATION
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement") is
entered into as of this 13th day of March, 2000, by and among Genomica
Corporation, a Delaware corporation (the "Company"), and the holders of the
Company's Series A Preferred Stock (the "Series A Stock"), Series B Preferred
Stock (the "Series B Stock") and the Company's Series C Preferred Stock (the
"Series C Stock") and certain other parties set forth on Exhibit A hereto. The
holders of the Series A Stock, the Series B Stock and the Series C Stock and the
other parties set forth on Exhibit A shall be collectively referred to
hereinafter as the "Investors" and each individually as an "Investor."
Whereas, the Company has granted registration rights and certain other
rights to the holders of the Company's Series A Stock and Series B Stock
pursuant to that certain Investors' Rights Agreement, dated as of February 12,
1999 (the "Prior Agreement");
Whereas, the Company proposes to sell and issue shares of its Series C
Stock pursuant to the Series C Preferred Stock Purchase Agreement of even date
herewith (the "Purchase Agreement"); and
Whereas, as a condition to entering into the Purchase Agreement, the
prospective purchasers have requested that the Company extend to them
registration rights, information rights and other rights as set forth below, and
the Company and the parties to the Prior Agreement are willing to amend the
rights given to them pursuant to the Prior Agreement by replacing such rights in
their entirety with the rights set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and the
Purchase Agreement, the parties mutually agree as follows:
1. General
1.1 Termination of Prior Agreement. The undersigned parties who constitute
the requisite parties necessary to amend the Prior Agreement hereby agree that,
effective upon the date hereof, the Prior Agreement is null and void and
superseded by the rights and obligations set forth in this Agreement, and any
application of preemptive rights (including any notice requirements) set forth
in Section 5 of the Prior Agreement as to the issuance of the Company's Series C
Stock under the Purchase Agreement is waived.
1.2 Definitions.
(a) "Common Stock" shall mean the common stock, $.001 par value per
share, of the Company.
(b) "Equity Securities" shall mean (i) any Common Stock, Preferred
Stock or other security of the Company, (ii) any security convertible into any
Common Stock, Preferred
1.
Stock or other security (including any option to purchase such a convertible
security), (iii) any security carrying any warrant or right to subscribe to or
purchase any Common Stock, Preferred Stock or other security or (iv) any such
warrant or right.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(d) "Form S-3" 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 which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(e) "Holder" means any Investor owning of record Registrable
Securities that have not been sold to the public or any assignee of record of
such Registrable Securities in accordance with Section 3.9 hereof.
(f) "Initial Offering" shall mean the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
(g) "Preferred Stock" shall mean the preferred stock, $.001 par value
per share, of the Company.
(h) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement or document.
(i) The term "Registrable Securities" shall mean (a) Common Stock
held by the Investors listed on Exhibit A hereto and their permitted assigns;
(b) Common Stock of the Company issued or issuable upon conversion of the
Shares; (c) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, the securities referred to in clause (a) or (b) above; (d)
Common Stock of the Company issuable upon exercise of those certain warrants to
purchase Common Stock issued to Punk Xxxxxx & Company; (e) Common Stock of the
Company issuable upon conversion of the Series A Stock issuable upon exercise of
those certain Warrants to purchase Series A Stock issued to Falcon Technology
Partners, L.P. and Silicon Valley Bank; and (f) Common Stock of the Company
issuable upon conversion of the Series B Stock issuable upon exercise of those
certain Warrants to purchase Series B Stock issued to ARCH Ventures Fund III,
L.P., Boulder Ventures, L.P., The Xxxxxxxxx Family L.L.C., Falcon Technology
Partners, L.P. and Invesco Global Health Sciences Fund. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferor's rights under Section 3
of this Agreement with respect to such registration rights are not assigned.
(j) "Registrable Securities then outstanding" shall be the number of
shares determined by calculating the total number of shares of the Company's
Common Stock that are Registrable Securities and either (i) are then issued and
outstanding or (ii) are issuable pursuant to then exercisable or convertible
securities.
(k) "Rule 144" shall mean Rule 144 of the rules and regulations
promulgated under the Securities Act.
(l) "SEC" means the Securities and Exchange Commission.
2.
(m) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(n) "Shares" shall mean the Company's Series C Stock issued pursuant
to the Purchase Agreement and the Company's Series A Stock and Series B Stock
held by the Investors listed on Exhibit A hereto and their permitted assigns.
---------
2. Restrictions On Transfer.
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until the transferee
has agreed in writing for the benefit of the Company to be bound by this Section
2.1 unless and until:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) (A) Such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of paragraphs (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder which is (A) a partnership to any or all of its
partners or former partners, (B) a corporation to its stockholders in accordance
with their interest in the corporation, (C) a limited liability company to its
members or former members in accordance with their membership interest, (D) by a
trust to its beneficiaries in accordance with their interests in the trust or
(E) to the Holder's family member or trust for the benefit of an individual
Holder; provided, that, the transferee will be subject to the terms of this
Agreement to the same extent as if he were an original Holder hereunder.
(b) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws or as
provided elsewhere in this Agreement):
First Legend:
-------------
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS
3.
AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
Second Legend:
--------------
THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN
COMPLIANCE WITH THE INVESTORS' RIGHTS AGREEMENT, DATED MARCH 13, 2000,
COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER.
(c) The Company shall reissue promptly unlegended certificates at the
request of any holder thereof if the holder shall have obtained an opinion of
counsel (which counsel may be counsel to the Company) reasonably acceptable to
the Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 "Market Stand Off" Agreement. Each Holder hereby agrees that during
the one hundred eighty (180) day period following the effective date of a
registration statement of the Company filed under the Securities Act, it shall
not, to the extent requested by the Company and the managing underwriter, sell
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Common Stock of the Company held by it at any time during
such period except Common Stock included in such registration; provided, that,
all officers and directors of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such one hundred eighty (180) day
period.
3. Registration.
3.1 Demand Registration.
(a) Subject to the conditions of this Section 3.1, if the Company
shall receive a written request from the Holders of at least a majority of the
Registrable Securities then outstanding on an as-converted basis (the
"Initiating Holders") that the Company file a registration statement under the
Securities Act covering the registration of Registrable Securities having an
aggregate offering price to the public of at least $15,000,000 and constituting
at least
4.
twenty percent (20%) of the outstanding shares of the Company's Common Stock on
an as-converted basis, then the Company shall, within thirty (30) days of the
receipt thereof, give written notice of such request to all Holders, and subject
to the limitations of this Section 3.1, use its best efforts to effect, as soon
as practicable, the registration under the Securities Act of all Registrable
Securities that the Holders request to be registered.
(b) Any registration pursuant to this Section 3.1 shall be effected
by means of a firm underwriting and the Company shall include such information
in the written notice referred to in Section 3.1(a). The right of any Holder to
include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders (which underwriter or underwriters shall be
of nationally recognized standing and shall be reasonably acceptable to the
Company). Notwithstanding any other provision of this Section 3.1, if the
underwriter advises the Company that marketing factors require a limitation of
the number of securities to be underwritten (including Registrable Securities),
then the Company shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares that
may be included in the underwriting shall be allocated to the Holders of such
Registrable Securities on a pro rata basis based on the number of Registrable
Securities held by all such Holders (including Initiating Holders). Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 3.1:
(i) prior to December 11, 2001; or
(ii) after the Company has filed one (1) registration statement
pursuant to this Section 3.1, and either: (A) such registration has been
declared or ordered effective; or (B) the request for such registration has been
subsequently withdrawn by the Initiating Holders, unless the withdrawal is based
upon material adverse information concerning the Company of which the Initiating
Holders were not aware at the time of such request; or
(iii) during the period starting with the date of filing of, and
ending on the date ninety (90) days following the closing of the Company's
Initial Offering; provided, that, the Company makes reasonable good faith
efforts to cause such registration statement to become effective; or
(iv) if within thirty (30) days of receipt of a written request
from Initiating Holders pursuant to Section 3.1(a), the Company gives notice to
the Holders of the Company's intention to make an Initial Offering within ninety
(90) days; or
(v) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 3.1, a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously
5.
detrimental to the Company and its stockholders for such registration statement
to be effected at such time, in which event the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the Initiating Holders; provided, that, the right to delay a
request shall be exercised by the Company not more than once in any twelve (12)
month period; or
(vi) if the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 (or a
successor or similar form) pursuant to a request made pursuant to Section 3.3
below.
3.2 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company and to offerings of securities of the Company initiated by any party
exercising its demand registration rights, but excluding registration statements
relating to employee benefit plans and corporate reorganizations or other
transactions under Rule 145 of the Securities Act) and will afford each such
Holder an opportunity to include in such registration statement all or part of
such Registrable Securities held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the Registrable
Securities held by it shall, within fifteen (15) days after receipt of the
above-described notice from the Company, so notify the Company in writing. Such
notice shall state the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to include all of its
Registrable Securities in any registration statement thereafter filed by the
Company, such Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
If the registration statement under which the Company gives notice under
this Section 3.2 is for an underwritten offering, the Company shall so advise
the Holders of Registrable Securities. In such event, the right of any such
Holder to be included in a registration pursuant to this Section 3.2 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated as follows:
(i) first, to the Company, (ii) second, to the Holders of the Company's Series A
Stock, Series B Stock and Series C Stock on a pro rata basis based on the total
number of Registrable Securities held by such Holders and (iii) third, to any
stockholder of the Company (other than a Holder) on a pro rata basis. No such
reduction shall reduce the securities being offered by the Company for its own
account to be included in the registration and underwriting. In no event will
shares of any other selling stockholder be included in such registration which
would reduce the number of shares which may be included by the Holders, without
the written consent of Holders of a majority of the Registrable Securities
proposed to be sold in the offering. The Company shall have the right to
terminate or withdraw
6.
any registration initiated by it under this Section 3.2 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration. The registration expenses of such
withdrawn registration shall be borne by the Company in accordance with Section
3.4 hereof. For any Holder which is a partnership or corporation, the partners,
retired partners and stockholders of such Holder, or the estates and family
members of any such partners and retired partners and any trusts for the benefit
of any of the foregoing person shall be deemed to be a single "Holder", and any
pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "Holder," as defined in this sentence.
3.3 Form S-3 Registration. In case the Company shall receive a written
request from the Holders of at least twenty-five percent (25%) of the
Registrable Securities then outstanding on an as-converted basis that the
Company effect a registration on Form S-3 (or any successor to Form S-3) or any
similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 3.3:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders; or
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $1,000,000; or
(iii) if within thirty (30) days of receipt of a written request
from Initiating Holders pursuant to Section 2.2(a), the Company gives notice to
the Holders of the Company's intent to make its Initial Offering within ninety
(90) days; or
(iv) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than ninety (90) days after receipt of the request of the
Holder or Holders
7.
under this Section 3.3; provided, that, the right to delay a request shall be
exercised by the Company not more than once in any twelve (12) month period; or
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance; or
(vi) if the Company has already effected two (2) registrations on
Form S-3 (or any successor or similar form) for the Holders pursuant to this
Section 3.3.
(c) Subject to the foregoing, the Company shall file a Form S-3 (or
any successor or similar form) registration statement covering the Registrable
Securities and other securities so requested to be registered as soon as
practicable after receipt of the request or requests of the Holders.
3.4 Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with any registration under this Agreement, including
without limitation all registration, filing, qualification, printers' and
accounting fees, fees and disbursements of counsel to the Company, except that
each participating Holder shall bear its proportionate share of all amounts
payable to underwriters in connection with such offering for discounts and
commissions. The Company shall not, however, be required to pay for expenses of
any registration proceeding begun pursuant to Sections 3.1 or 3.3, the request
of which has been subsequently withdrawn by the Holders, unless the withdrawal
is based upon material adverse information concerning the Company of which the
Holders initiating the registration request were not aware at the time of such
request. If the Holders are required to pay their registration expenses, such
expenses shall be borne by the holders of securities (including Registrable
Securities) requesting such registration in proportion to the number of shares
for which registration was requested.
3.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
8.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided, that, the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing.
3.6 Termination of Registration Rights. All registration rights granted
under this Section 3 shall terminate and be of no further force and effect five
(5) years after the Company has completed its Initial Offering. In addition,
the right of any Holder to request inclusion of Registrable Securities in any
registration pursuant to this Section 3 shall terminate if (a) such Holder
(together with its affiliates, partners and former partners) holds less than one
percent (1%) of the Company's outstanding Common Stock (treating all shares of
convertible Preferred Stock on an as-converted basis) and (b) all Registrable
Securities held by and issuable to such Holder (and its affiliates, partners,
former partners, members and former members) may be sold to the public under
Rule 144(k) during any ninety (90) day period.
3.7 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 3 that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
3.8 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.9 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 3 may be assigned by a
Holder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, general partner, limited partner, retired partner, member,
retired member, affiliate or trust beneficiaries of a Holder, (b) is a Holder's
family member or trust for the benefit of an individual Holder or (c) acquires
at least two hundred fifty thousand (250,000) shares of Registrable Securities
(as adjusted for stock dividends, stock splits and combinations); provided,
however, (A) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are
9.
being assigned and (B) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
3.10 Amendment or Waiver of Registration Rights. Any provision of this
Section 3 may be amended, and the observance thereof 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 Holders of
at least a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 3.10 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this Agreement, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
3.11 Indemnification. In the event any Registrable Securities are included
in a registration statement under Sections 3.1, 3.2 or 3.3:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers, directors and legal counsel
of each Holder, any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 3.11(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent shall
not be unreasonably withheld, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, its officers, and legal counsel and
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any
10.
person who controls such Holder, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, or partner,
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder under an
instrument duly executed by such Holder and stated to be specifically for use in
connection with such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, or partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 3.11(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Holder, which
consent shall not be unreasonably withheld; provided further, that in no event
shall any indemnity under this Section 3.11(b) exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
3.11 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 3.11, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; provided, however, that an indemnified
party shall have the right to retain its own 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 reasonably likely differing interests between such indemnified
party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 3.11, but the omission to
so deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 3.11.
(d) If the indemnification provided for in this Section 3.11 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged
11.
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that, in
no event shall any contribution by a Holder hereunder exceed the net proceeds
from the offering received by such Holder.
(e) The obligations of the Company and Holders under this Section
3.11 shall survive completion of any offering of Registrable Securities in a
registration statement. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
3.12 Rule 144 Reporting. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public.
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become subject
to such reporting requirements); a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
4. Covenants of the Company.
4.1 Basic Financial Information and Reporting.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
(b) So long as an Investor (with its affiliates) shall own not less
than two hundred fifty thousand (250,000) shares of Registrable Securities (as
adjusted for stock dividends, stock splits, recapitalizations and the like) (a
"Major Investor"), as soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, the Company
will furnish each such Major Investor an audited consolidated
12.
balance sheet of the Company, as at the end of such fiscal year, an audited
consolidated statement of income and an audited consolidated statement of cash
flows of the Company, for such year, all prepared in accordance with generally
accepted accounting principles and setting forth in each case, in comparative
form, the figures for the previous fiscal year, all in reasonable detail.
4.2 Inspection Rights. Each Major Investor shall have the right to visit
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, and to review such information as is reasonably
requested; provided, however, that the Company shall not be obligated under this
Section 4.2 with respect to a competitor of the Company or with respect to
information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
4.3 Confidentiality of Records. Each Investor agrees to use, and to use
its best efforts to insure that its authorized representatives uses, the same
degree of care as such Investor uses to protect its own confidential information
to keep confidential any information furnished to it which the Company
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that such Investor may disclose such
proprietary or confidential information to any partner, subsidiary or parent of
such Investor for the purpose of evaluating its investment in the Company as
long as such partner, subsidiary or parent is advised of the confidentiality
provisions of this Section 4.3.
4.4 Reservation of Common Stock. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Series A Stock, Series B Stock and Series C Stock, all Common Stock issuable
from time to time upon such conversion.
4.5 SEC Compliance. During any time that the Company is subject to the
reporting requirements of the Exchange Act, the Company shall timely file all
required reports pursuant to the Exchange Act. Additionally, the Company shall
make available to Investors the information contemplated by Rule 144A. At such
time that any stock held by an Investor is eligible for transfer pursuant to
Rule 144(k), the Company shall, upon the request of such Investor, remove any
restrictive legend from the applicable stock certificate at no cost to such
Investor.
4.6 Proprietary Information and Inventions Agreement. The Company shall
require all employees and consultants to execute and deliver a Proprietary
Information and Inventions Agreement.
4.7 Termination of Covenants. All covenants of the Company contained in
Section 4 of this Agreement shall expire and terminate as to each Investor on
the effective date of the registration statement pertaining to the Initial
Offering.
5. Preemptive Rights.
5.1 Subsequent Offerings. Each Major Investor shall have a preemptive
right to purchase up to its pro rata share of all Equity Securities that the
Company may, from time to time, propose to sell and issue after the date of this
Agreement, other than the Equity Securities excluded by Section 5.6 hereof.
Each Investor's pro rata share is equal to the ratio of (A) the
13.
number of shares of the Company's Common Stock (including all shares of Common
Stock issued or issuable upon conversion of the Shares) which such Investor is
deemed to be a holder immediately prior to the issuance of such Equity
Securities to (B) the total number of shares of the Company's outstanding Common
Stock on a fully-diluted basis (including all shares of Common Stock issued or
issuable upon the exercise of outstanding options, warrants or convertible
securities) immediately prior to the issuance of the Equity Securities.
5.2 Exercise of Rights. If the Company proposes to issue any Equity
Securities, it shall give each Investor written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Investor shall have fifteen
(15) days from the giving of such notice to agree to purchase up to its pro rata
share of the Equity Securities for the price and upon the terms and conditions
specified in the notice by giving written notice to the Company and stating
therein the quantity of Equity Securities to be purchased. Notwithstanding the
foregoing, the Company shall not be required to offer or sell such Equity
Securities to any Investor who would cause the Company to be in violation of
applicable federal securities laws by virtue of such offer or sale.
5.3 Issuance of Equity Securities to Other Investors. If not all of the
Investors elect to purchase their pro rata share of the Equity Securities, then
the Company shall promptly notify in writing the Investors who do so elect and
shall offer such Investors the right to acquire such unsubscribed shares. The
Investors shall have five (5) days after receipt of such notice to notify the
Company of its election to purchase all or a portion thereof of the unsubscribed
shares. If the Investors fail to exercise in full their preemptive rights, the
Company shall have ninety (90) days thereafter to sell the Equity Securities in
respect of which the Investor's rights were not exercised, at a price and upon
general terms and conditions materially no more favorable to the purchasers
thereof than specified in the Company's notice to the Investors pursuant to
Section 5.2 hereof. If the Company has not sold such Equity Securities within
one hundred twenty (120) days of the notice provided pursuant to Section 5.2,
the Company shall not thereafter issue or sell any Equity Securities, without
first offering such securities to the Investors in the manner provided above.
5.4 Termination of Preemptive Rights. The preemptive rights established by
this Section 5 shall not apply to, and shall terminate upon, the effective date
of the registration statement pertaining to the Initial Offering.
5.5 Transfer of Preemptive Rights. The preemptive rights of each Investor
under this Section 5 may be transferred to the same parties, subject to the same
restrictions, as any transfer of registration rights pursuant to Section 3.9.
5.6 Excluded Securities. The preemptive rights established by this Section
5 shall have no application to any of the following Equity Securities:
(a) shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or other rights)
(as adjusted for stock splits, recapitalizations and the like) issued or to be
issued to employees, officers or directors of, or consultants or advisors to the
Company or any subsidiary, pursuant to stock
14.
purchase or stock option plans or other arrangements that are approved by the
Board of Directors;
(b) stock issued pursuant to any rights or agreements outstanding as
of the date of this Agreement, options, warrants and convertible promissory
notes outstanding as of the date of this Agreement; and stock issued pursuant to
any such rights or agreements granted after the date of this Agreement,
provided, that, the preemptive rights established by this Section 5 applied with
respect to the initial sale or grant by the Company of such rights or
agreements;
(c) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business combination
in which the stockholders of the Company immediately prior to such transaction
own less than 50% of the voting power of the surviving entity;
(d) shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
(e) shares of Common Stock issued upon conversion of the Shares;
(f) any Equity Securities that are issued by the Company pursuant to
a registration statement filed under the Securities Act; and
(g) any Equity Securities issued pursuant to any commercial loan or
leasing transaction.
6. Miscellaneous.
6.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Colorado as such laws are applied to agreements between
Colorado residents entered into and performed entirely in Colorado.
6.2 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall be
a holder of Registrable Securities from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the transfer
of any Registrable Securities specifying the full name and address of the
transferee, the Company may deem and treat the person listed as the holder of
such shares in its records as the absolute owner and holder of such shares for
all purposes, including the payment of dividends or any redemption price.
6.3 Severability. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
15.
6.4 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of at least a majority of the Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of at least a majority of the Registrable Securities.
6.5 Notices, Etc. All notices required or permitted hereunder shall be
deemed effectively given: (i) upon personal delivery to the party to be
notified, (ii) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient; if not, 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) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the party
to be notified at the address set forth on the signature pages hereto or Exhibit
-------
A hereto or at such other address as such party may designate by ten (10) days
-
advance written notice to the other parties hereto.
6.6 Attorneys' Fees. If legal action is brought to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover from the
losing party all fees, costs and expenses of enforcing any rights of such
prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
6.7 Titles and Subtitles. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.8 Complete Agreement. This Agreement constitutes the entire agreement
and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, between the parties hereto with regard to the subject
matter hereof.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
16.
In Witness Whereof, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
COMPANY: INVESTORS:
Genomica Corporation ______________________________
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
By: ____________________________ By: __________________________
Name: Xxxxxx X. Xxxxx Name: ________________________
Title: Chief Executive Officer Title: _______________________
Amended and Restated Investor's Rights Agreement
Exhibit A
Genomica Corporation
Investors' Rights Agreement
Series A Stockholders
Name and Address
----------------
Invesco Global Health Sciences Fund
Xx. Xxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxxx
Mail Stop 1100
Xxxxxx, XX 00000
Falcon Technology Partners, L.P.
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Arch Venture Fund III, L.P.
Attn: Xxxxxx Xxxxxx
0000 0/xx/ Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Boulder Ventures, L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Pegasus Technology Ventures, L.L.C.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
The Xxxxxxxxx Family, L.L.C.
Attn: Xx. Xxxxxx Xxxxxxxxx
2450 Cragmoor
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx, Xx.
NEA Development Corp.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx SEP XXX
MRA
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx XX 00000
Xxxxxx and Xxxxxx Group, Inc.
0 Xxxxxxxxxxx Xxxxx
0
Xxxxxxxxxxx Xxxxxx
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Series B Stockholders
Name and Address
----------------
Falcon Technology Partners, L.P.
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Invesco Global Health Sciences Fund
Xx. Xxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxxx
Mail Stop 1100
Xxxxxx, XX 00000
ARCH Ventures Fund III, L.P.
Attn: Xxxxxx Xxxxxx
0000 0/xx/ Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Boulder Ventures II, L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Anvers, L.P.
Attn: Xxx Xxxxxxxx
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Anvers II, L.P.
Attn: Xxx Xxxxxxxx
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Boulder Ventures II (Annex), L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
The Xxxxxxxxx Family L.L.C.
Attn: Xxxxxx X. Xxxxxxxxx
2450 Cragmoor
Xxxxxxx, XX 00000
2.
Series B Stockholders
Name and Address
----------------
Boulder Ventures, L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
GC&H Investments
Attn: Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Xxxxxxxx Fund, Inc.
Attn: Xxxx Xxx Xxxx, Ph.D.
000 Xxxx 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Punk, Xxxxxx & Company
Investors, L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tyjo Corporation Defined Benefit
Plan and Trust
C/O Reedland Capital Partners
Attn: President
00 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Series C Stockholders
Name and Address
----------------
The Xxxxxxxx Fund, Inc.
Attn: Xxxx Xxx Xxxx, Ph.D.
000 Xxxx 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Falcon Technology Partners, L.P.
Attn: Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
3.
Series C Stockholders
Name and Address
----------------
Xxxxx, XX 00000
Invesco Global Health Sciences Fund
Attn: Xx. Xxxx X. Xxxxxx
0000 Xxxx Xxxxx Xxxxxx
Mail Stop 1100
Xxxxxx, XX 00000
ARCH Ventures Fund III, L.P.
Attn: Xxxxxx Xxxxxx
0000 0/xx/ Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Boulder Ventures II, L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Boulder Ventures II (Annex), L.P.
Attn: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Anvers, L.P.
Attn: Xxx Xxxxxxxx
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Anvers II, L.P.
Attn: Xxx Xxxxxxxx
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Punk, Xxxxxx & Company Investors, L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tyjo Corporation Defined Benefit
Plan and Trust
C/O Reedland Capital Partners
Attn: President
00 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
The Xxxxxxxxx Family, L.L.C.
4.
Series C Stockholders
Name and Address
----------------
Attn: Xx. Xxxxxx Xxxxxxxxx
2450 Cragmoor
Xxxxxxx, XX 00000
GC&H Investments
Attn: Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
Xxxxx X. Xxxxxx, Xx.
NEA Development Corp.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx and Xxxxxx Group, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxx
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxx
MRA
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx XX 00000
Pegasus Technology Ventures, L.L.C.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
________________________
Other Investors
Name and Address
----------------
Xxxxxx X. Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
5.
Other Investors
Name and Address
----------------
Xxxxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxx Xxxx Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxxxxxx Xxxxx
00 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxx
0000 Xxxxxxxxxx Xx.
Xxxxxxx, XX 00000
Xxxxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Cold Spring Harbor Laboratory
0 Xxxxxxxx Xxxx
Xxxx Xxxxxx Xxxxxx, XX 00000
Xxxx Xxxxxxx
Cold Spring Harbor Lab
XX Xxx 000
0 Xxxxxxxx Xxxx
Xxxx Xxxxxx Xxx Xxxx 00000
6.
