Exhibit 3
EXECUTION COPY
STOCKHOLDER AGREEMENT
by and among
XXXXXX LABORATORIES,
CORVETTE ACQUISITION CORP.
and
THE STOCKHOLDERS SIGNATORY HERETO
Dated as of January 12, 2004
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of January 12, 2004 (the "Agreement"),
among Xxxxxx Laboratories, an Illinois corporation ("Parent"), Corvette
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Sub"), and the stockholders of TheraSense, Inc., a Delaware
corporation (the "Company"), listed on Schedule A hereto (collectively, the
"Stockholders" and, each individually, a "Stockholder"). Capitalized terms used
and not otherwise defined herein have the meanings given to them in the
Agreement and Plan of Merger, dated as of the date hereof, by and among Parent,
Sub and the Company (as the same may be amended or supplemented, the "Merger
Agreement").
WHEREAS, Parent, Sub and the Company propose to enter into the Merger
Agreement providing for the merger of Sub with and into the Company (the
"Merger") upon the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, each Stockholder owns (of record or beneficially), or is the
trustee of one or more trusts that are the record holder of, and whose
beneficiaries are the beneficial owners of, the number of shares of capital
stock of the Company set forth opposite their respective names on Schedule A
hereto (such shares of capital stock of the Company being referred to herein as
the Stockholder's "Original Shares" and the Original Shares, together with any
other shares of capital stock of the Company or other voting securities of the
Company acquired (of record or beneficially) by the respective Stockholder or
the trusts, if any, of which the respective Stockholder is a trustee, after the
date hereof and during the term of this Agreement (including through the
exercise of any warrants, stock options or similar instruments), being
collectively referred to herein as the Stockholder's "Subject Shares";
provided, however, that the Original Shares and the Subject Shares of a
Stockholder shall not be deemed to include any shares owned of record by an
Affiliate of such Stockholder to the extent such Stockholder has disclaimed
beneficial ownership thereof in Schedule A hereto);
WHEREAS, the Company Board has unanimously adopted resolutions
approving and declaring advisable the Merger Agreement, this Agreement and the
transactions contemplated thereby and hereby (such approvals having been made
in accordance with the DGCL, including for purposes of Section 203 thereof) and
has amended the Rights Agreement; and
WHEREAS, as a condition to the willingness of Parent and Sub to enter
into the Merger Agreement, and as inducement and in consideration therefor,
each Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholders. Each
Stockholder hereby represents and warrants as to himself, herself or itself to
Parent and Sub as follows:
(a) Organization, Authority and Qualification of the
Stockholders. If the Stockholder is not an individual, such Stockholder is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization or formation and has all requisite power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. If the Stockholder is
an individual, if such Stockholder is married and the Subject Shares constitute
community property or if the Stockholder otherwise requires spousal or other
approval for this Agreement to be legal, valid and binding, this Agreement has
been duly executed and delivered by, and constitutes a legal, valid and binding
obligation of, such Stockholder's spouse, enforceable against such spouse in
accordance with its terms. If the Stockholder is a trustee under one or more
trusts, none of such trusts requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby. The Stockholder has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. If applicable, the execution,
delivery and performance of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated by this
Agreement have been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and constitutes (assuming due authorization, execution and delivery
by Parent and Sub) a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
(b) No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement shall not, (A) if the
Stockholder is not an individual, conflict with, or result in any
violation of, the certificate of incorporation or by-laws or the
equivalent organizational documents of the Stockholder, (B) conflict with,
or result in any violation of, any United States or foreign Law applicable
to the Stockholder or by which any property or asset of the Stockholder is
bound or affected or (C) result in any breach of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise to
a right of termination, amendment, cancellation or acceleration of any
obligation or to a loss of a material benefit under, or result in the
creation of any Liens in or upon any of the properties or assets of the
Stockholder, pursuant to any loan or credit agreement, note, bond,
mortgage, indenture, lease, license, sublease, easement, covenant,
condition, restriction, contract, instrument, permit, concession,
franchise license or other instrument or obligation. For purposes of this
Agreement, Law means any statute, law (including common law), ordinance,
rule or regulation
(ii) No consent, approval, Order or authorization of, or
registration, declaration or filing with, or notification to, any
Governmental Entity is required by or with respect to the Stockholder in
connection with the execution and delivery of this Agreement by the
Stockholder or the consummation by the Stockholder of the transactions
contemplated by this Agreement, except the filing with the SEC of such
reports under the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby.
(c) Absence of Litigation. As of the date of this Agreement,
there is no Proceeding pending or, to the knowledge of the Stockholder,
threatened against the Stockholder, or any property or asset of the
Stockholder, before any Governmental Entity that seeks to delay or prevent the
consummation of the transactions contemplated by this Agreement.
(d) The Subject Shares. The Stockholder is the record and
beneficial owner (as defined in Rule 13d-3 under the Exchange Act, which
meaning will apply for all purposes of this Agreement) of, or is the trustee of
one or more trusts that are the record holder of, and whose beneficiaries are
the beneficial owners of, and has good and marketable title to, his, her or its
Subject Shares, free and clear of any and all Liens. Other than as set forth on
Schedule A hereto, the Stockholder does not own (of record or beneficially) any
shares of capital stock of the Company or any options, warrants, rights or
other similar instruments to acquire any capital stock or other voting
securities of the Company. The Stockholder has the sole right to vote and
Transfer (as defined in Section 3(c) of this Agreement) the Subject Shares, and
the Subject Shares are not subject to any proxies, voting trusts or other
agreements, understandings, arrangements or restrictions with respect to the
voting or the Transfer of the Subject Shares, except as set forth in Sections 3
and 4 of this Agreement.
(e) No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by the Merger Agreement based upon arrangements made
by or on behalf of the Stockholder.
SECTION 2. Representations and Warranties of Parent and Sub. Parent
and Sub represent and warrant to each Stockholder as follows:
(a) Organization and Authority. Each of Parent and Sub is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated and has all requisite
corporate power and authority to own, lease, possess and operate its properties
and assets and to carry on its business as now being conducted. Parent and Sub
each have all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by Parent
and Sub and the consummation by Parent and Sub of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate action
on the part of each of Parent and Sub. This Agreement has been duly executed
and delivered by Parent and Sub and constitutes (assuming due authorization,
execution and delivery by the Stockholders) a valid and binding obligation of
each of Parent and Sub, enforceable against each of Parent and Sub in
accordance with its terms.
(b) Authorization; Noncontravention.
(i) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement and shall not, (A)
conflict with, or result in any violation of, the certificate of
incorporation or by-laws of either of Parent or Sub or (B) conflict with,
or result in any violation of, any United States or foreign Law applicable
to Parent or Sub or by which any property or asset of Parent or Sub is
bound or affected.
(ii) No consent, approval, Order or authorization of, or
registration, declaration or filing with, or notification to, any
Governmental Entity is required by or with respect to Parent or Sub in
connection with the execution and delivery of this Agreement by Parent or
Sub or the consummation by Parent or Sub of the transactions contemplated
by this Agreement, except (A) the filing of a pre-merger notification and
report form by Parent and Sub under the HSR Act, and compliance with the
pre-merger notification requirements in Austria, Germany, Ireland, Italy
and the Czech Republic, (B) the filing with the SEC of such reports under
the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated by hereby and (C) such other consents,
approvals, Orders, authorizations, registrations, declarations, filings
and notifications, the failure of which to be obtained or made would not,
individually or in the aggregate, (x) impair in any material respect the
ability of either Parent or Sub to perform its obligations under this
Agreement or (y) prevent or materially delay the consummation of any of
the transactions contemplated by this Agreement.
SECTION 3. Covenants of the Stockholders. Each Stockholder covenants
and agrees as follows:
(a) At any meeting of the stockholders of the Company called to
vote upon the Merger Agreement, the Merger, any of the other transactions
contemplated by the Merger Agreement or any other transaction pursuant to which
Parent or Sub proposes to acquire the Company, whether by merger or otherwise,
in which stockholders of the Company would receive consideration per share of
Company Common Stock in cash equal to or greater than the consideration to be
received by such stockholders in the Merger (an "Increased Acquisition
Proposal"), or at any adjournment thereof, or in any other circumstances upon
which a vote or other approval with respect to the Merger Agreement, the
Merger, any of the other transactions contemplated by the Merger Agreement or
any Increased Acquisition Proposal is sought, the Stockholder shall vote (or
cause to be voted) all of the Subject Shares in favor of the approval and
adoption of the Merger Agreement, the Merger and the terms thereof, each of the
other transactions contemplated by the Merger Agreement or any Increased
Acquisition Proposal.
(b) At any meeting of the stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which a vote or other
approval is sought, the Stockholder shall vote (or cause to be voted) all of
the Subject Shares against any of the following: (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company, (ii) any
Alternative Acquisition Proposal or (iii) any amendment of the Company's
certificate of incorporation or by-laws or other proposal, action or
transaction involving the Company or any of the Company Subsidiaries or any of
its stockholders, which amendment or other proposal, action or transaction
would in any manner impede, frustrate, prevent or delay the consummation of the
Merger or the other transactions contemplated by the Merger Agreement or this
Agreement or change in any manner the voting rights of the holders of Company
Common Stock (collectively, "Frustrating Transactions"). The Stockholder shall
not commit to or agree to take any action inconsistent with the foregoing or
that would otherwise facilitate a Frustrating Transaction. Notwithstanding the
foregoing, nothing herein shall preclude a Stockholder from voting for or
otherwise approving an Increased Acquisition Proposal as set forth in Section
3(a) of this Agreement.
(c) The Stockholder shall not (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, "Transfer"), or
consent to or permit any Transfer of, any Subject Shares or any interest
therein, or enter into any loan or credit agreement, bond, debenture, note,
mortgage, indenture, lease or other contract, commitment, agreement, option,
instrument, arrangement, understanding, obligation or undertaking, with respect
to the Transfer (including any profit sharing or other derivative arrangement)
of any Subject Shares or any interest therein, to any Person other than
pursuant to this Agreement or the Merger Agreement, (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, with respect to
any Subject Shares and shall not commit or agree to take any of the foregoing
actions, other than pursuant to this Agreement or (iii) take any other action
that would in any way restrict, limit or interfere with the performance of the
Stockholder's obligations under this Agreement or the transactions contemplated
hereby. The Stockholder shall not, nor shall the Stockholder permit any entity
under the Stockholder's control to, deposit any Subject Shares in a voting
trust.
(d) The Stockholder shall not, nor shall the Stockholder
authorize or permit any investment banker, attorney, accountant or other
advisor or representative of the Stockholder to, directly or indirectly, (i)
solicit, initiate, facilitate, encourage, engage in discussions or negotiate
with any Person or take any other action intended or designed to facilitate any
inquiry or effort of any Person relating to any Alternative Acquisition or
other Frustrating Transaction, (ii) provide information with respect to the
Company or any Company Subsidiary to any Person relating to a possible
Alternative Acquisition or (iii) enter into any agreement with respect to any
proposal for an Alternative Acquisition or other Frustrating Transaction. The
Stockholder shall promptly advise Parent and Sub orally and in writing of any
Alternative Acquisition Proposal or inquiry made to the Stockholder with
respect to, or that could reasonably be expected to lead to, any Alternative
Acquisition Proposal or other Frustrating Transaction. The Stockholder shall
immediately cease participating in any discussions or negotiations with any
parties that may be ongoing with respect to any proposal that constitutes, or
reasonably may be expected to lead to, an Alternative Acquisition Proposal.
(e) The Stockholder hereby consents to and approves the actions
taken by the Company Board in approving the Merger Agreement and this
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints,
Parent, Sub and any individual designated in writing by Parent, the
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote all of his, her or
its Subject Shares, or grant any approval in respect of such Subject Shares,
(i) in favor of the adoption of the Merger Agreement and the approval of the
terms thereof and of the Merger and each of the other transactions contemplated
by the Merger Agreement or any Increased Acquisition Proposal, (ii) against any
Alternative Acquisition Proposal or other Frustrating Transaction and (iii)
otherwise in accordance with Section 3 of this Agreement. The Stockholder
understands and acknowledges that Parent and Sub are entering into the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
(b) Each Stockholder represents that any proxies heretofor given
in respect of his, her or its Subject Shares are not irrevocable and that all
such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy is coupled with
an interest and, except as set forth in Section 9 hereof, is intended to be
irrevocable in accordance with the provisions of Section 212(e) of the DGCL. If
for any reason the proxy granted herein is not irrevocable, then the
Stockholder agrees to vote his, her or its Subject Shares as instructed by
Parent in writing. The Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof.
SECTION 5. Further Assurances. Each Stockholder shall use his, her or
its reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement. The Stockholder shall
not commit or agree to take any action inconsistent with the transactions
contemplated by this Agreement or the transactions contemplated by the Merger
Agreement. Without limiting the generality of the foregoing, the Stockholder
shall, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and other instruments
as Parent or Sub may request for the purpose of effectuating the matters
covered by this Agreement, including with respect to the grant of the proxy set
forth in Section 4.
SECTION 6. Conditions to Obligations of Parent and Sub. Each
Stockholder acknowledges and agrees that the obligations of Parent and Sub to
consummate the Merger are subject to the satisfaction of each of the conditions
set forth in the Merger Agreement.
SECTION 7. Certain Events. Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to his, her or its Subject Shares
and shall be binding upon any Person to which legal or beneficial ownership of
the Subject Shares shall pass, whether by operation of law or otherwise,
including the Stockholder's heirs, guardians, administrators or successors. If
requested by Parent, a Stockholder shall cause each certificate representing
his, her or its Subject Shares to be inscribed with a legend to such effect. In
the event of any stock split, stock dividend, reclassification, merger,
reorganization, recapitalization or other change in the capital structure of
the Company affecting the capital stock of the Company, the number of Original
Shares and the number of Subject Shares listed on Schedule A hereto shall be
adjusted appropriately. In addition, in the event that the Stockholder acquires
any additional shares of capital stock of the Company or other voting
securities of the Company (including through the exercise of any warrants,
stock options or similar instruments), the number of Subject Shares listed on
Schedule A hereto shall be adjusted appropriately. This Agreement and the
representations, warranties, covenants, agreements and obligations hereunder
shall attach to any additional shares of capital stock of the Company or other
voting securities of the Company issued to or acquired by the Stockholder
(including through the exercise of any warrants, stock options or similar
instruments).
SECTION 8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by either of the parties hereto without
the prior written consent of the other party hereto, except that each of Parent
and Sub may assign, in its sole discretion, any of or all its rights, interests
and obligations under this Agreement to any direct or indirect wholly-owned
subsidiary of Parent or Sub, as applicable. Any purported assignment in
violation of this Section 8 shall be null and void. Subject to the preceding
sentences of this Section 8, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
SECTION 9. Termination. This Agreement shall terminate upon the
earlier to occur of (a) the Effective Time or (b) the termination of the Merger
Agreement in accordance with its terms; provided, however, that termination of
this Agreement shall not prevent any party hereunder from seeking any remedies
(at law or in equity) against any other party hereto for such party's breach of
any of the terms of this Agreement prior to termination.
SECTION 10. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(b) Notices. Except for notices that are specifically required by
the terms of this Agreement to be delivered orally, all notices and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (with confirmation) or sent by nationally
recognized overnight or same-day courier (providing proof of delivery) to
Parent or Sub in accordance with Section 10.2 of the Merger Agreement and to
the applicable Stockholders at the addresses set forth opposite their
respective names on Schedule A hereto (or at such other address for a party as
shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
a party or to a Section or Schedule, such reference shall be to a party to, or
a Section of or a Schedule to, this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The words "hereof," "herein," "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The definitions
contained in this Agreement are applicable to the singular as well as the
plural forms of such terms.
(d) Counterparts; Effectiveness. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party. The
effectiveness of this Agreement shall be conditioned upon the execution and
delivery of the Merger Agreement by each of the parties thereto.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; and (ii) other than with respect to the persons
specified as proxies in Section 4, is not intended to confer upon any Person
other than the parties any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to any principles of conflicts of law of such state.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
(h) Service of Process. Parent, Sub and each Stockholder
irrevocably consents to the service of process outside the territorial
jurisdiction of the courts referred to in Section 11 hereof in any such action
or proceeding by mailing copies thereof by registered United States mail,
postage prepaid, return receipt requested, to its address as specified in or
pursuant to Section 10(b) hereof. However, the foregoing shall not limit the
right of a party to effect service of process on the other party by any other
legally available method.
(i) Non-Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 11. Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any federal court located in the
State of Delaware or in any Delaware state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties (a) consents to submit itself to the personal jurisdiction of
any federal court located in the State of Delaware or any Delaware state court
in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees that it will not bring any action
relating to this Agreement or the transactions contemplated by this Agreement
in any court other than a federal court located in the State of Delaware or a
Delaware state court and (d) waives any right to trial by jury with respect to
any action related to or arising out of this Agreement or any of the
transactions contemplated hereby.
SECTION 12. Stockholders Capacity. Each Stockholder does not make any
agreement or understanding herein in his or her capacity as a director or
officer of the Company. The Stockholder signs solely in his or her capacity as
the record holder and beneficial owner of, or the trustee of one or more trusts
that are the record holder of, and whose beneficiaries are the beneficial
owners of, the Subject Shares, and nothing herein shall limit or affect any
actions taken by the Stockholder in his or her capacity as an officer or
director of the Company to the extent specifically permitted by the Merger
Agreement.
******
IN WITNESS WHEREOF, each of Parent and Sub have caused this Agreement
to be signed by its officer thereunto duly authorized and each Stockholder has
signed this Agreement (if applicable, by its officer thereunto duly
authorized), all as of the date first written above.
XXXXXX LABORATORIES
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Operating
Officer, Medical Products Group
CORVETTE ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
STOCKHOLDERS:
InterWest Partners V, L.P.
By:
Its:
By: /s/ Xxxxxx Momsen
---------------------------------
Name: Xxxxxx Momsen
Title: General Partner
InterWest Partners VI, L.P.
By:
Its:
By: /s/ Xxxxxx Momsen
---------------------------------
Name: Xxxxxx Momsen
Title: General Partner
InterWest Partners VII, L.P.
By:
Its:
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
InterWest Investors, VI, L.P.
By:
Its:
By: /s/ Xxxxxx Momsen
-------------------------------
Name: Xxxxxx Momsen
Title: General Partner
InterWest Investors, VII, L.P.
By: Xxxxxx X. Xxxxxx
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
/s/ W. Xxxx Xxxxx
---------------------------------
Name: W. Xxxx Xxxxx
W. Xxxx Xxxxx and
Xxxxxxx Xxx Xxxxx
Revocable Living
Trust By: W. Xxxx Xxxxx & Xxxxxxx Xxx Xxxxx
Its: Co-Trustees
By: /s/ W. Xxxx Xxxxx/Xxxxxxx Xxx Xxxxx
--------------------------------------
Name: W. Xxxx Xxxxx and
Xxxxxxx Xxx Xxxxx
Title: Co-Trustees
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxx
---------------------------------------
Name: Xxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Brentwood Associates VIII, L.P.
By: Brentwood VIII Ventures, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
/s/ Xxxxxx X. Momsen
-------------------------------------
Name: Xxxxxx X. Momsen
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxxx
DRD Family Partnership, L.P.
By:
Its:
By: /s/ Xxx X. Xxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxx
Title:
SCHEDULE A
----------
Number of Number of Number of
Number of Original Subject Subject
Original Shares Shares Owned Shares Owned Shares Owned
Stockholder Address Owned of Record Beneficially of Record Beneficially
----------- ------- --------------- ------------ --------- ------------
InterWest Partners V, L.P. 0000 Xxxx Xxxx Xxxx,
0xx Xxxxx
Xxxxx Xxxx, XX 00000 100,306 100,306
InterWest Partners VI, L.P. 0000 Xxxx Xxxx Xxxx,
0xx Xxxxx
Xxxxx Xxxx, XX 00000 3,237,103 3,327,103
InterWest Partners VII, L.P. 0000 Xxxx Xxxx Xxxx,
0xx Xxxxx
Xxxxx Xxxx, XX 00000 1,449,082 1,449,082
InterWest Investors, VI, L.P. 0000 Xxxx Xxxx Xxxx,
0xx Xxxxx
Xxxxx Xxxx, XX 00000 101,494 101,494
InterWest Investors, VII, L.P. 0000 Xxxx Xxxx Xxxx,
0xx Xxxxx
Xxxxx Xxxx, XX 00000 69,396 69,396
W. Xxxx Xxxxx(1) TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 6,849 794,504
Xxxxxxx, XX 00000
W. Xxxx Xxxxx and c/o TheraSense, Inc.
Xxxxxxx Xxx Xxxxx 0000 Xxxxx Xxxx Xxxx 502,490 0 To be determined
Revocable Living Trust Xxxxxxx, XX 00000 following execution
of the Agreement
Xxxxxxx X. Xxxxxx TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 81,700 268,711
Xxxxxxx, XX 00000
TheraSense, Inc.
Xxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxx Xxxx 26,768 79,125
Xxxxxxx, XX 00000
Xxx X. Xxxxxx TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 5,853 61,523
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 6,745 162,644
Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxx TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 0 000,000
Xxxxxxx, XX 00000
Xxxx X. Xxxxx(2) TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 4,379 39,379
Xxxxxxx, XX 00000
Brentwood Associates VIII, L.P. 00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000 400,000 0
Xxx Xxxxxxx, XX 00000
Xxxxxx X. Momsen(3) TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 27,647 62,647
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 31,200 66,200
Xxxxxxx, XX 00000
Xxx X. Xxxxxxxx(4) TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 000,000 000,000
Xxxxxxx, XX 00000
DRD Family Partnership, L.P. c/o TheraSense, Inc.
0000 Xxxxx Xxxx Xxxx 000,000 0
Xxxxxxx, XX 00000
(1) Excludes the 502,490 shares held by the W. Xxxx Xxxxx and Xxxxxxx Xxx Xxxxx
Revocable Living Trust, as to which Xx. Xxxxx disclaims beneficial ownership
for purposes of this Agreement.
(2) Excludes the 400,000 shares held by Brentwood Associates VIII, L.P., as to
which Xx. Xxxxx disclaims beneficial ownership for purposes of this Agreement.
(3) Excludes the 4,957,381 shares held by InterWest Partners V, L.P., InterWest
Partners VI, L.P. and InterWest Investors, VI, L.P., as to which Mr. Momsen
disclaims beneficial ownership for purposes of this Agreement.
(4) Excludes the 102,575 shares held by DRD Family Partnership, L.P., as to
which Xx. Xxxxxxxx disclaims beneficial ownership for purposes of this
Agreement.
