EXHIBIT 4.5
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is entered into as of the 29th day of October 1999, by and among
VERSICOR INC., a Delaware corporation (the "Company"), the holders of the
Company's Series A Preferred Stock ("Series A Stock"), the holders of the
Company's Series B Preferred Stock ("Series B Stock"), the holders of the
Company's Series C Preferred Stock ("Series C Stock"), the holders of the
Company's Series D-1 Preferred Stock ("Series D-1 Stock"), the holders of the
Company's Series E-1 Preferred Stock ("Series E-1 Stock") and the purchasers of
the Company's Series F Preferred Stock ("Series F Stock") set forth on EXHIBIT A
attached hereto (the "Purchasers"). The holders of the Series A Stock, Series B
Stock, Series C Stock and purchasers of Series F Stock shall be referred to
hereinafter as the "Financial Investors" and each individually as a "Financial
Investor." The holders of the Series D-1 Stock and the Series E-1 Stock shall be
referred to hereinafter as the "Strategic Investors" and each individually as a
"Strategic Investor." The Financial Investors and Strategic Investors
collectively shall be referred to hereinafter as the "Investors" and each
individually as an "Investor."
RECITALS
WHEREAS, the Company entered into the First Amended and Restated
Investors' Rights Agreement, dated March 31, 1997, with the holders of the
Company's Series A Stock, Series B Stock, Series C Stock, Series D-1 Stock and
Series E-1 Stock (the "First Amended and Restated Investors' Rights Agreement"),
whereby the Company granted to such holders certain registration rights,
information rights and other rights
WHEREAS, the Company proposes to sell and issue up to six million eight
hundred ten thousand seven hundred and ten (6,810,710) shares of its Series F
Stock to the Purchasers pursuant to the Series F Stock Purchase Agreement (the
"Purchase Agreement") of even date herewith;
WHEREAS, as a condition to the purchase of the Series F Stock, the
Purchasers have requested that the Company extend to them certain registration
rights, information rights and other rights; and
WHEREAS, the Company and the Investors desire to amend and restate the
First Amended and Restated Investors' Rights Agreement to provide for certain
registration rights, information rights and other rights to the Purchasers, as
set forth below.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties mutually agree as follows:
1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FINANCIAL HOLDER" means any Financial Investor (or permitted successor
or assignee) 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 3.11 hereof.
"HOLDER" means either a Financial Holder or a Strategic Holder.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act (as defined below).
"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.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company issued
or issuable upon conversion of the Shares (as defined below); (ii) 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, such
above-described securities and (iii) any other Common Stock now or hereafter
owned or held by any Investor. 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 transferror's rights under Section 2 of this Agreement
are not assigned.
"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 (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Section 3.1, Section 3.2, Section 3.3, Section 3.4 and Section
3.5 hereof, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, reasonable
fees and disbursements not to exceed for each registration effected pursuant to
this Agreement twenty thousand dollars ($20,000) of a single special counsel for
the Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SHARES" shall mean the Company's Series A Stock, Series B Stock,
Series C Stock, including shares of Series C Stock issuable upon conversion of
warrants issued by the Company, Series D-1 Stock, Series D-2 Stock, Series E-1
Stock, Series E-2 Stock and Series F Stock.
"STRATEGIC HOLDER" means any Strategic Investor (or permitted successor
or assignee) 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 3.11 hereof.
"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.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
1.2 The First Amended and Restated Investors' Rights Agreement shall be
terminated and replaced in its entirely by this Agreement.
2. RESTRICTION ON TRANSFER.
2.1 Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(a) 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
(b) (i) The transferee has agreed in writing to be bound by
this Section 2, (ii) 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 (iii) 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.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder which is (i) a partnership to its partners or former
partners in accordance with partnership interests, (ii) a corporation to its
shareholders in accordance with their interest in the corporation, (iii) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, or (iv) to the Holder's family
member or trust for the benefit of an individual Holder, provided the transferee
will be subject to the terms of this Section 2 to the same extent as if he were
an original Holder hereunder.
2.2 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):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS 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.
2.3 The Company shall be obligated to 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.
2.4 Subject to Section 2.3 above, 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.
3. REGISTRATION RIGHTS
3.1 DEMAND REGISTRATION BY FINANCIAL HOLDERS.
(a) Subject to the conditions of this Section 3.1, if the
Company shall receive a written request from the Financial Holders of more than
thirty percent (30%) of the Registrable Securities then outstanding held by such
Financial Holders (the "Initiating Holders") that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities to the public with a minimum aggregate offering price of
not less than $10,000,000, then the Company shall, within thirty (30) days of
the receipt thereof, give written notice of such request to all Financial
Holders, and subject to the limitations of this Section 3.1, file, as soon as
practicable (but in no event later than sixty (60) days following the selection
by the Initiating Holders of an Underwriter), the registration under the
Securities Act of all Registrable Securities that the Financial Holders request
to be registered.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 3.1 and the Company shall include such information in the
written notice referred to in Section 3.l(a). In such event, the right of any
Financial Holder to include its Registrable Securities in such registration
shall be conditioned upon such Financial Holder's participation in such
underwriting and the inclusion of such Financial Holder's Registrable
Securities in the underwriting (unless otherwise mutually agreed by a
majority in interest of the Initiating Holders and such Financial Holder) to
the extent provided herein. All Financial 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 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 Financial 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 Financial
Holders of such Registrable Securities on a pro rata basis based on the
number of Registrable Securities held by all such Financial Holders
(including the Initiating Holders); PROVIDED, HOWEVER, that the number of
shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all other securities are first entirely excluded from
the underwriting. 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 the earlier of (A) six (6) months
following the Initial Offering or (B) October 28, 2001; or
(ii) after the Company has effected two (2)
registrations pursuant to this Section 3.1, and such registrations have been
declared or ordered effective or
(iii) during the period starting with the date
of filing of, and ending on the date six (6) months following the effective
date of the registration statement pertaining to the Initial Offering,
provided that the Company is making reasonable and 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, the Company
gives notice to the Financial Holders of the Company's intention to make its
Initial Offering within ninety (90) days; or
(v) if the Company shall furnish to the
Financial Holders requesting a registration statement pursuant to this
Section 3.1, a certificate signed by the Chairman of the Board or the Chief
Executive Officer 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 shareholders 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 one hundred twenty (120) days after receipt of
the request of the Initiating Holders; provided that such right to delay a
request shall be exercised by the Company no more than once in any one-year
period.
3.2 DEMAND REGISTRATION BY STRATEGIC HOLDERS.
(a) Subject to the conditions of this Section 3.2, if the
Company shall receive a written request from a Strategic Holder holding at least
250,000 shares of Registrable Securities (as presently constituted and subject
to subsequent adjustments for stock splits, stock dividends, reverse stock
splits, and the like) (the "Initiating Strategic Holder") that the Company file
a registration statement under the Securities Act covering the registration of
Registrable Securities held by such Initiating Strategic Holder, then the
Company shall, within thirty (30) days of the receipt thereof, give written
notice of such request to all other Strategic Holders, and subject to the
limitations of this Section 3.2, file, as soon as practicable (but in no event
later than forty-five (45) days following the selection by the Initiating
Strategic Holder of an underwriter) a registration statement covering the
registration under the Securities Act of all Registrable Securities held by the
Strategic Holders that such Strategic Holders request to be registered.
(b) If the Initiating Strategic Holder intends to
distribute the Registrable Securities covered by their request by means of an
underwriting, it shall so advise the Company as a part of its request made
pursuant to this Section 3.2 and the Company shall include such information
in the written notice referred to in Section 3.2(a). In such event, the right
of any Strategic Holder to include its Registrable Securities in such
registration shall be conditioned upon such Strategic Holder's participation
in such underwriting and the inclusion of such Strategic Holder's Registrable
Securities in the underwriting (unless otherwise agreed by a majority
interest of the participating Strategic Holders) to the extent provided
herein. All Strategic 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 Strategic Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any
other provision of this Section 3.2, 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 Strategic 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 Strategic Holders of such Registrable
Securities on a pro rata basis based on the number of Registrable Securities
held by all such Strategic Holders (including the Initiating Strategic Holder);
PROVIDED, HOWEVER, that the number of shares of Registrable Securities to be
included shall not be reduced unless all other securities, other than for the
account of the Company, are first entirely excluded from the underwriting. 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 3.2:
(i) prior to the occurrence of both (A) the
Initial Offering and (B) the earlier of (i) the exercise by the Financial
Holders of at least one (1) demand registration right pursuant to Section 3.1
or (ii) October 28, 2002; provided, however, that in the event the Initial
Offering has not taken place by October 28, 2002, the Company shall effect a
registration pursuant to this Section 3.2 if the Initiating Strategic Holder
and the Holders of at least a majority of the Registrable Securities then
outstanding consent to effecting such registration; or
(ii) with respect to each Strategic Holder, if
such Strategic Holder has exercised one (1) demand registration right
pursuant to this Section 3.2 (it being understood that the purchaser of
Series D-1 Stock and Series D-2 Stock and its permitted successors and
assigns, shall collectively be entitled to a single demand registration right
pursuant to this Section, and the purchaser of Series E-1 Stock and Series
E-2 Stock, and its permitted successors and assigns, shall collectively be
entitled to a separate single demand registration right pursuant to this
Section); or
(iii) if the Company shall furnish to the
Strategic Holders requesting a registration statement pursuant to this
Section 3.2, a certificate signed by the Chairman of the Board or the Chief
Executive Officer 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 shareholders 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 one hundred twenty (120) days after receipt of
the request of the Initiating Strategic Holder; provided that such right to
delay a request shall be exercised by the Company no more than twice in any
one-year period. If the Company determines to withdraw such registration,
then the Initiating Strategic Holder may withdraw its request for
registration within ten (10) days after the Company has provided notice of
its deferral, and such withdrawn request shall not count against the demand
registration right of such Initiating Strategic Holder pursuant to this
Section 3.2.
3.3 PIGGYBACK REGISTRATIONS. The Company shall notify all
Financial Holders of Registrable Securities (and subsequent to the Initial
Offering, all Strategic 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, but excluding
registration statements relating to employee benefit plans or with respect to
corporate reorganizations or other transactions under Rule 145 of the
Securities Act) and will afford each such Financial Holder (and subsequent to
the Initial Offering, each such Strategic 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 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 such 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.
Notwithstanding the foregoing, if, in connection with the Initial Offering, any
Financial Holder exercises its piggyback registrations rights under this Section
3.3, then each Strategic Investor shall have the same opportunity to include its
Registrable Securities in such Initial Offering pursuant to this Section 3.3 and
shall be deemed a "Holder" for the purposes of this Section 3.3; PROVIDED,
HOWEVER, that if the number of Registrable Securities to be included is reduced,
the Registrable Securities held by the Strategic Investors shall be entirely
excluded before any Registrable Securities held by Financial Investors are
excluded.
(a) UNDERWRITING. If the registration statement under
which the Company gives notice under this Section 3.3 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 3.3 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. 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, first,
to the Company; second, to the Holders exercising their demand registration
rights pursuant to either Section 3.1, Section 3.2, Section 3.4 or Section
3.5 on a pro rata basis based on the total number of Registrable Securities
held by such Holders; third, to the Holders exercising their piggy-back
registration rights pursuant to this Section 3.3, on a pro rata basis; and
fourth, to any shareholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall (i) reduce the securities being offered by the
Company for its own account to be included in the registration and
underwriting, other than upon a demand or (ii) reduce the amount of
securities of the selling Holders included in the registration below thirty
percent (30%) of the total amount of securities included in such
registration, unless such offering is the Initial Offering and such
registration does not include shares of any other selling shareholders, in
which event any or all of the Registrable Securities of the Holders may be
excluded in accordance with the immediately preceding sentence.
(b) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by it
under this Section 3.3 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.
3.4 FORM S-3 REGISTRATION FOR FINANCIAL HOLDERS. In case the
Company shall receive a written request from the Financial Holders of at
least 500,000 shares of Registrable Securities (as presently constituted and
subject to subsequent adjustments for stock splits, stock dividends, reverse
stock splits, and the like) (the "S-3 Initiating Financial Holders") 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 S-3 Initiating Financial
Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Financial 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 the
S-3 Initiating Financial Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities
of any other Financial Holder or Financial 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 3.4:
(i) if Form S-3 (or any successor or similar
form) is not available for such offering by the S-3 Initiating Financial
Holders, or
(ii) if the S-3 Initiating Financial 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 the Company shall furnish to the S-3
Initiating Financial Holders a certificate signed by the Chairman of the
Board of Directors or the Chief Executive Officer 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 shareholders 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 S-3 Initiating Financial Holders under this Section 3.4;
provided, that such right to delay a request shall be exercised by the
Company nor more than twice in any one-year period, or
(iv) if the Company has, within the three (3)
month period preceding the date of such request, already effected one (1)
registrations on Form S-3 for the Financial Holders pursuant to this Section
3.4, 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.
Subject to the foregoing, the Company shall file a Form S-3 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 S-3 Initiating Financial Holders. If the
registration statement under this Section 3.4 is for an underwritten
offering, the right of any Financial Holder to be included in a registration
pursuant to this Section 3.4 shall be conditioned upon such Financial
Holder's participation in such underwriting and the inclusion of such
Financial Holder's Registrable Securities in the underwriting to the extent
provided herein. All Financial 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 the 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, first, to the Financial
Holders exercising their registration rights pursuant to this Section 3.4;
second, to the Company; third, to the Holders exercising their piggy-back
registration rights pursuant to this Section 3.4, on a pro rata basis; and
fourth, to any shareholder of the Company (other than a Holder) on a pro rata
basis.
3.5 FORM S-3 REGISTRATION FOR STRATEGIC HOLDERS. In case the
Company shall receive a written request from a Strategic Holder holding at
least 250,000 shares of Registrable Securities (as presently constituted and
subject to subsequent adjustments for stock splits, stock dividends, reverse
stock splits, and the like) (the "S-3 Initiating Strategic Holder") 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 S-3 Initiating Strategic Holders, the Company will:
(a) as soon as practicable (but in no event later than
45 days following such notice, or if such registration shall be for an
underwritten offering, no later than 45 days following the selection by the
S-3 Initiating Strategic Holder of an underwriter), file a registration
statement covering such registration, and effect as soon as practicable 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 the
S-3 Initiating Strategic Holder's Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities
of any other Holder or Holders participating 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 3.5:
(i) if Form S-3 (or any successor or similar
form) is not available for such offering by the S-3 Initiating Strategic
Holder, or
(ii) if the S-3 Initiating Strategic Holder,
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 the Company shall furnish to the S-3
Initiating Strategic Holder a certificate signed by the Chairman of the Board
of Directors or the Chief Executive Officer 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 shareholders 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 S-3 Initiating Strategic Holder under this Section 3.5; provided, that
such right to delay a request shall be exercised by the Company nor more than
twice in any one-year period, or
(iv) if, with respect to the S-3 Initiating
Strategic Holder, the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for such S-3 Initiating Strategic Holder pursuant to this Section
3.5, 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.
Subject to the foregoing, the Company shall file a Form S-3 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 S-3 Initiating Strategic Holder. If the
registration statement under this Section 3.5 is for an underwritten
offering, the right of the S-3 Initiating Strategic Holder to be included in
a registration pursuant to this Section 3.5 shall be conditioned upon the S-3
Initiating Strategic Holder's participation in such underwriting and the
inclusion of such S-3 Initiating Strategic Holder's Registrable Securities in
the underwriting to the extent provided herein. The S-3 Initiating Strategic
Holder proposing to distribute its 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 the 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, first, to the
S-3 Initiating Strategic Holder exercising its registration rights pursuant
to this Section 3.5; second, to the Company; third, to the Holders exercising
their piggy-back registration rights pursuant to this Section 3.3, on a pro
rata basis; and fourth, to any shareholder of the Company (other than a
Holder) on a pro rata basis.
3.6 EXPENSES OF REGISTRATION. Except as specifically provided
herein, all Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to Section 3.1 or 3.2 or
any registration under Section 3.3, Section 3.4 or Section 3.5 herein shall
be borne by the Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered. The
Company shall not, however, be required to pay for expenses of any
registration proceeding begun pursuant to Section 3.1, Section 3.2, Section
3.4 or Section 3.5, the request of which has been subsequently withdrawn by
the relevant Initiating Holders, unless (a) the withdrawal is based upon (i)
material adverse information concerning the Company of which the relevant
Initiating Holders, were not aware at the time of such request or, (ii) the
number of Registrable Securities to be included in the offering being reduced
to less than 50% of those to be originally included or (b) the relevant
Holders of a majority of Registrable Securities held by such Holders agree to
forfeit their right to one requested registration pursuant to Section 3.1,
Section 3.2, Section 3.4 or Section 3.5, as applicable, in which event such
right shall be forfeited by all such Holders) or (c) the withdrawal is
pursuant to Section 3.2(c)(iii). If the Holders are required to pay the
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. If
the Company is required to pay the Registration Expenses of a withdrawn
offering pursuant to clause (a) above, then the Holders shall not forfeit
their rights pursuant to Section 3.1, Section 3.2, Section 3.4 or Section 3.5
to a demand registration.
3.7 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 all reasonable
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
one hundred twenty (120) days or, if
earlier, until the Holder or Holders have completed the distribution related
thereto; provided, however. that in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120 day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 145, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment that (i) includes any prospectus
required by Section 10(a)(3) of the Securities Act or (ii) reflects facts or
events representing a material or fundamental change in the information
required to be included in (i) and (ii) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in the
registration statement;
(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.
(d) Use all reasonable efforts to register and
qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the 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 in the light of
the circumstances then existing.
(g) Cause all such Registrable Securities
registered pursuant hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for
all such Registrable Securities, in each case not later than the effective
date of such registration.
(i) Furnish, at the request of a majority of the
Holders participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, or, if such securities
are not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (i) an opinion,
dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given
to underwriters in an underwritten public offering and reasonably
satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated as
of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and if
permitted by applicable accounting standards, to the Holders requesting
registration of Registrable Securities.
3.8 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Section 3 shall terminate with respect to any Holder if
(i) the Company has completed its Initial Offering and is subject to the
provisions of the Exchange Act and (ii) all Registrable Securities held by
and issuable to such Holder may be sold under Rule 144(k) during any ninety
(90) day period without regard to volume and manner of sale restrictions
under Rule 144.
3.9 DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) 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.
(b) It shall be a condition precedent to the obligations
of the Company to take any action pursuant to Section 3.1, Section 3.2,
Section 3.3, Section 3.4 or Section 3.5 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.
3.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 3.1, Section 3.2, Section
3.3, Section 3.4 or Section 3.5:
(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 3.10 (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 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 3.10(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 3.10 exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under
this Section 3.10 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 3.10,
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 mutually satisfactory to the parties; 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 potential 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 3.10, but the omission so to 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 3.10.
(d) If the indemnification provided for in this Section
3.10 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; provided that in no event
shall any contribution by a Holder under this Subsection 3.11(d) exceed the
net proceeds from the offering received by such holder. 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 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 proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under
this Section 3.10 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.
3.11 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 (i) is an Affiliate as defined in Regulation D of the Securities Act, a
shareholder, partner or retired partner of a Holder, (ii) is a Holder's
family member or trust for the benefit of an individual Holder, (iii) is
already a Holder of Registrable Securities or (iv) acquires at least one
hundred thousand (100,000) shares of Registrable Securities (as adjusted for
stock splits and combinations); provided, however, such transfer shall be
subject to the following: (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 being assigned and (B) such transferee
shall agree to be subject to all restrictions set forth in this Agreement.
3.12 AMENDMENT OF REGISTRATION RIGHTS.
(a) Except as otherwise provided, 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 fifty-five percent (55%) of the Registrable Securities provided,
however, that no such amendment or waiver may be effected which adversely
affects the rights or interests of one Holder without a like effect on the
other Holders, unless the Holders whose rights have been adversely affected
consents thereto. Notwithstanding anything else to the contrary herein, no
such amendment or waiver may be effected which lessens or terminates one or
more of the rights held by the Financial Holders or
Strategic Holders under this Section 3, unless a majority in interest of such
affected Financial Holders or each of the affected Strategic Holders, as
applicable, consents thereto. Any amendment or waiver effected in accordance
with this Section 3.12 shall be binding upon each Holder and the Company. By
acceptance of any benefits under this Section 3, Holders of Registrable
Securities hereby agree to be bound by the provisions hereunder.
(b) MOST FAVORED STATUS. If there is a financing
subsequent to the Series F Preferred Stock financing, and if the rights,
preferences, and privileges of such new financing are more beneficial to such
prospective investors than the rights, preferences, and privileges granted to
the purchasers of the Series F Preferred Stock pursuant to the Third Restated
Certificate of Incorporation, Second Amended and Restated Investors Rights
Agreement and Right of First Refusal and Co-Sale Agreement, then, upon the
written request of at least sixty-six and two-thirds percent (66 2/3%) in
interest of the holders of Series F Preferred Stock, all the rights,
preferences, and privileges of such Series F Preferred Stock pursuant to the
Third Restated Certificate of Incorporation, Second Amended and Restated
Investors Rights Agreement and Right of First Refusal and Co-Sale Agreement
shall be modified to equal the rights, preferences, and privileges of such
new financing, including terms which may be deemed to be less beneficial than
the then existing rights. It is specifically agreed that this Section 3.12(b)
shall not apply to anything contained in the Series F Preferred Stock
Purchase Agreement and shall not be amended without the written consent of
holders of at least sixty-six and two-thirds percent (66 2/3%) of the
outstanding shares of Series F Preferred.
3.13 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date
of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the
Company that would grant such holder registration rights on a parity with or
senior to those granted to the Holders hereunder.
3.14 "MARKET STAND-OFF" AGREEMENT. If requested by the Company as
the representative of the underwriters of Common Stock (or other securities)
of the Company, each Holder shall not sell or otherwise transfer or dispose
of any Shares of Common Stock (or other securities) of the Company held by
such each Holder (other than those included in the registration) for a period
specified by the representative of the underwriters not to exceed one hundred
eighty (180) days following the effective date of a registration statement of
the Company filed under the Securities Act, provided that all Holders, all
directors, and officers of the Company, and holders of at least five percent
(5%) of the Company's voting securities enter into similar agreements; and
PROVIDED, FURTHER, that this Section 3.15 shall only apply to the Company's
Initial Offering.
The obligations described in this Section 3.14 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form
S-8 or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of said
one hundred eighty (180) day period.
3.15 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 required to be filed pursuant to
the Exchange Act; 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 100,000 shares of Registrable Securities (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reverse stock splits, and the like), as soon as practicable after
the end of each fiscal year of the Company, and in any event within one
hundred twenty (120) days thereafter, the Company will furnish each such
Investor a consolidated balance sheet of the Company, as at the end of such
fiscal year, and a consolidated statement of income and a consolidated
statement of cash flows of the Company, for such year, all prepared in
accordance with generally accepted accounting principles consistently applied
and setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail; provided that, if the Company
has not designated a Chief Financial Officer, the Company will furnish such
Investor a consolidated balance sheet of the Company, as at the end of such
fiscal year, and a consolidated statement of income and a consolidated
statement of cash flows of the Company within ninety days (90) after the end
of each fiscal year of the Company. Such financial statements shall be
audited and accompanied by (i) a report and opinion thereon by independent
public accountants of national standing selected by the Company's Board of
Directors and (ii) a quarterly financial information statement signed by the
Chief Financial Officer or other authorized officer in the form attached as
EXHIBIT B hereto (" Financial Information Statement").
(c) So long as an Investor (with its affiliates) shall
own not less than 100,000 shares of Registrable Securities (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reverse stock splits, and the like), as soon as practicable after
the end of the first, second and third quarterly accounting periods in each
fiscal year of the Company, and in any event within forty-five (45) days
thereafter, the Company will furnish each Investor a consolidated balance
sheet of the Company as of the end of each such quarterly period, and a
consolidated statement
of income and a consolidated statement of cash flows of the Company for such
period and for the current fiscal year to date, prepared in accordance with
generally accepted accounting principles and accompanied by a Financial
Information Statement, with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made; provided that,
if the Company has not designated a Chief Financial Officer, the Company will
furnish such Investor a consolidated balance sheet of the Company as of the end
of each such quarterly period, and a consolidated statement of income and a
consolidated statement of cash flows of the Company for such period and for the
current fiscal year to date within thirty days (30) after the end of each fiscal
year of the Company.
(d) So long as an Investor (with its affiliates) shall
own not less than one hundred thousand (100,000) shares of Registrable
Securities (as presently constituted and subject to subsequent adjustments
for stock splits, stock dividends, reverse stock splits, and the like), the
Company will furnish each such Investor (i) at least thirty (30) days prior
to the beginning of each fiscal year an annual budget and operating plans for
such fiscal year (and as soon as available, any subsequent revisions
thereto); and (ii) as soon as practicable after the end of each month, and in
any event within twenty (20) days thereafter, a consolidated balance sheet of
the Company as of the end of each such month, and a consolidated statement of
income and a consolidated statement of cash flows of the Company for such
month and for the current fiscal year to date, including a comparison to plan
figures for such period, prepared in accordance with generally accepted
accounting principles consistently applied, with the exception that no notes
need be attached to such statements and year-end audit adjustments may not
have been made.
4.2 CONFIDENTIALITY OF RECORDS.
(a) Each Investor agrees not to use Confidential
Information (as hereinafter defined) of the Company for its own use or for
any purpose except to evaluate and enforce its equity investment in the
Company. Each Investor shall undertake to treat such Confidential Information
in a manner consistent with the treatment of its own information of such
proprietary nature and agrees that it shall protect the confidentiality of
and use reasonable best efforts to prevent disclosure of the Confidential
Information to prevent it from falling into the public domain or the
possession of unauthorized persons. Each transferee of any Investor who
receives Confidential Information shall agree to be bound by such provisions.
For purposes of this Section, "Confidential Information": means any
information, technical data, or know-how, including, but not limited to, the
Company's research, products, software, services, development, inventions,
processes, designs, drawings, engineering, marketing, or finances, disclosed
by the Company either directly or indirectly in writing, orally or by
drawings or inspection of parts or equipment which written material is
stamped "Confidential" or "Proprietary" or if disclosed orally, is promptly
confirmed in writing to be Confidential Information.
(b) Confidential Information does not include
information, technical data or know-how which (i) is in the Investor's
possession at the time of disclosure as shown by Investor's files and records
immediately prior to the time of disclosure; (ii) before or after it has been
disclosed to the Investor, it is part of the public knowledge or literature,
not as a result of any action or inaction of the Investor; or (iii) is
disclosed to an Investor on a non-confidential basis by a third party having
a legal right to such information, (iv) is independently developed by
Investor, as properly documented by the Investor, or (v) is approved for
release by written authorization of Company. The provisions of this Section
shall not apply (i) to the extent that an Investor is required to disclose
Confidential Information pursuant to any law, statute, rule or regulation or
any order of any court or jurisdiction process or
pursuant to any direction, request or requirement (whether or not having the
force of law but if not having the force of law being of a type with which
institutional investors in the relevant jurisdiction are accustomed to comply)
of any self-regulating organization or any governmental, fiscal, monetary or
other authority; (ii) to the disclosure of Confidential Information to an
Investor's employees, counsel, accountants or other professional advisors; (iii)
to the extent that an Investor needs to disclose Confidential Information for
the protection of any of such Investor's rights or interest against the Company,
whether under this Agreement or otherwise; or (iv) to the disclosure of
Confidential Information to a prospective transferee of securities which agrees
to be bound by the provisions of this Section in connection with the receipt of
such Confidential Information.
4.3 RESERVATION OF COMMON STOCK. The Company will at all times
reserve and keep available, solely for issuance and delivery upon the
conversion of the Preferred Stock, all Common Stock issuable from time to
time upon such conversion.
4.4 STOCK VESTING. Unless otherwise approved by the Board of
Directors, all stock options and other stock equivalents issued after the
date of this Agreement to employees, directors, officers, consultants and
other service providers shall be subject to vesting as follows: (i)
twenty-five percent (25 %) of such stock shall vest at the end of the first
year following the earlier of the date of issuance or such person's services
commencement date with the company, and (ii) seventy-five percent (75%) of
such stock shall vest at a monthly rate of one-thirty-sixth (1/36th) of such
stock for the 36-month period after the first anniversary of such date of
issuance or services commencement date. With respect to any shares of stock
purchased by any such person, unless otherwise approved by the Board of
Directors, the Company's repurchase option shall provide that upon such
person's termination of employment or service with the Company, with or
without cause, the Company or its assignee (to the extent permissible under
applicable securities laws and other laws) shall have the option to purchase
at cost any unvested shares of stock held by such person.
4.5 KEY MAN INSURANCE. Subject to the approval of the Board of
Directors, the Company will use its best efforts to obtain and maintain in
full force and effect term life insurance in the amount of one million
dollars on the life of Xxxxxx X. Xxxxxx, III, naming the Company as
beneficiary.
4.6 CORPORATE EXISTENCE. The Company shall maintain in full force
and effect its corporate existence and good standing in the jurisdiction of
its incorporation, and qualify and remain qualified as a foreign Corporation
in each jurisdiction in which the failure to do so would have a material
adverse affect on its business or properties.
4.7 VISITATION RIGHTS. The Company shall allow one (1)
representative designated by Apax Partners and one (1) representative
designated by Xxxxxxxx Venture Partners to attend all meetings of the
Company's Board of Directors in a nonvoting capacity; provided, however, that
the Company reserves the right to exclude such representative from access to
any material or meeting or portion thereof if the Company believes upon
advice of counsel that such exclusion is reasonably necessary to preserve the
attorney-client privilege, to protect highly confidential proprietary
information or for other similar reasons.
4.8 TERMINATION OF COVENANTS. All covenants of the Company
contained in Section 4 except the covenants contained in Section 4.3 of this
Agreement shall expire and terminate as to each Investor on the earlier of
(i) effective date of the registration statement pertaining to the Initial
Offering at a pre-money valuation of not less than one hundred seventy-five
million ($175,000,000) and for a total offering of not less than twenty-five
million ($25,000,000) in net proceeds to the Company or (ii)
the date the Company becomes subject to the reporting provisions of the
Securities Exchange act of 1934, as amended.
4.9 SECTION 1202. The Company covenants that so long as Section
1202(c) of the Internal Revenue Code of 1986, as amended (the "Code") is in
effect and Registrable Securities are held by an Investor (or a transferee in
whose hands the Registrable Securities are eligible to qualify as Qualified
Small Business Stock as defined in Section 1202(c) of the Code), it will use
its reasonable best efforts, provided such efforts are in the best interests
of the Company, to cause the Registrable Securities to retain their status as
Qualified Small Business Stock and shall make all filings required under
Section 1202(d)(1)(C) of the Code.
5. RIGHTS OF FIRST REFUSAL
5.1 PRE-EMPTIVE RIGHT UPON SUBSEQUENT OFFERINGS. So long as an
Investor (with its affiliates) shall own not less than one hundred thousand
(100,000) Shares, such Investor shall have a right of first refusal to
purchase its pro rata share of all Equity Securities, as defined below, 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 5.5
hereof. Each Investor's pro rata share is equal to the ratio of (A) the
number of shares of the Company's Common Stock (including all shares of
Common Stock issued or issuable upon conversion of the Shares and upon
exercise of all outstanding warrants to purchase Equity Securities of the
Company) which such Investor is or 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 (including all shares of Common
Stock issued or issuable upon conversion of the Shares) immediately prior to
the issuance of the Equity Securities and upon exercise of all outstanding
warrants to purchase Equity Securities of the Company. The term "Equity
Securities" shall mean (i) any Common Stock, Preferred Stock or other
security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, Preferred 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.
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 (but not actually consummate such purchase within such 15-day
period) 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 TERMINATION OF RIGHTS OF FIRST REFUSAL. The rights of first
refusal established by this Section 5 shall terminate upon the effective date
of the registration statement pertaining to an Initial Offering at a
pre-money valuation of not less than one hundred seventy-five million
($175,000,000) and for a total offering of not less than twenty-five million
($25,000,000) in net proceeds to the Company.
5.4 TRANSFER OF RIGHTS OF FIRST REFUSAL. The rights of first
refusal 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 3.12.
5.5 EXCLUDED SECURITIES. The rights of first refusal 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) issued or to be issued to employees, officers or directors
of, or consultants or advisors to the Company or any subsidiary, pursuant to
stock 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 and warrants
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 rights of first refusal 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;
(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 issued pursuant to any
equipment leasing arrangement, or bank financing;
(g) any Equity Securities that are issued by the Company
pursuant to a registration statement filed under the Securities Act;
(h) any Equity Securities issued in connection with
strategic transactions involving the Company and other entities, including
(A) joint ventures, manufacturing, marketing or distribution arrangements or
(B) technology transfer or development arrangements, that are approved by the
Company's Board of Directors;
(i) shares of Series D-1 Stock, Series D-2 Stock, Series
E-1 Stock and Series E-2 Stock issued or to be issued to the Strategic
Investors; and
(j) shares of Series F Stock issued to the Purchasers
set forth in EXHIBIT A.
5.6 REDEMPTION RIGHTS. Notwithstanding Section E(5) of Article IV
of the Company's Certificate of Incorporation, as amended, the Financial
Investors hereby agree that, if at the time they are eligible to demand
redemption of their shares of Series Preferred pursuant to said Article IV
and the Company and any Strategic Investor are still parties to a then active
research and development collaboration agreement funded by such Strategic
Investor at a level of not less than $2,000,000 in the immediately prior 12
month period, the Financial Investors will refrain from exercising their
right to
demand such redemption until completion of the research and development
collaboration at the specified minimum level of funding.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
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 permitted 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.
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 fifty-five percent (55%) of the
Registrable Securities, provided, however, that no such amendment or
modification may be effected which adversely affects the rights or interests
of one Holder without a like effect on the other Holders, unless each Holder
whose rights have been adversely affected consents thereto. Notwithstanding
anything else to the contrary herein, no such amendment or modification may
be effected which lessens or terminates one or more of the rights held by the
Financial Holders or Strategic Holders under this Agreement, unless a
majority in interest of such affected Financial Holders or each of the
affected Strategic Holders, as applicable, consent thereto.
(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 the holders of at least
fifty-five (55%) of the Registrable Securities, provided, however, that no
such waiver may be effected which adversely affects the rights or interests
of one Holder without a like effect on the other Holders, unless each Holder
whose rights have been adversely affected consents thereto. Notwithstanding
anything else to the contrary herein, no such waiver may be effected which
lessens or terminates one or more of the rights held by the Financial Holders
or Strategic Holders under this Agreement, unless a majority in interest of
such affected Financial Holders or each of the affected Strategic Holders, as
applicable, consent thereto.
(c) Notwithstanding the foregoing, this Agreement may be
amended with only the written consent of the Company to include additional
purchasers of Series D-1 Stock, Series D-2 Stock, Series E-1 Stock and Series
E-2 Stock as "Strategic Investors," "Strategic Holders" and parties hereto.
6.5 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character
on any Holder's part of any breach, default or noncompliance under the
Agreement or any waiver on such Holder's part of any provisions or conditions
of this Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under
this Agreement, by law, or otherwise afforded to Holders, shall be cumulative
and not alternative.
6.6 NOTICES. All notices required or permitted hereunder shall be
in writing and 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 as set forth on the
signature pages hereof 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.
6.7 ATTORNEYS' FEES. In the event that any dispute among the
parties to this Agreement should result in litigation, the prevailing party
in such dispute shall be entitled to recover from the losing party reasonable
fees, costs and expenses of enforcing any right 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, reasonable fees, costs and expenses of appeals.
6.8 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
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.
6.10 RIGHTS OF STRATEGIC HOLDERS. The rights of the Strategic
Holders as set forth herein, are not subject to the expiration or
termination of the Collaboration Agreements, notwithstanding anything
contained therein or elsewhere to the contrary.
6.11 AGGREGATION OF STOCK. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this SECOND
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT as of the date set forth in the
first paragraph hereof.
COMPANY: INVESTORS:
VERSICOR INC. APAX EUROPE IV GP CO. LIMITED
_________________________________________
By:
Its:
/S/ XXXXXX X. XXXXXX III
------------------------------
Xxxxxx X. Xxxxxx III
Chief Executive Officer
And
By: _____________________________________
For Apax Europe IV GP Co. Limited acting in
its capacity as managing general partner of
Apax Europe IV - A, L.P.
Apax Europe IV - B, L. P.
Apax Europe IV - C, GmbH & Co. KG
Apax Europe IV - D, L.P.
APAX EUROPE IV- E, L.P.
Apax Europe IV - F, L.P.
Apax Europe IV - G, L.P.
APAX FRANCE V-A
represented by Apax Partners & Cie Ventures
S.A.
Its Manager
_________________________________________
By:
APAX FRANCE V-B
represented by Apax Partners & Cie Ventures
S.A.
Its Manager
_________________________________________
By:
IN WITNESS WHEREOF, the parties hereto have executed this SECOND
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT as of the date set forth in the
first paragraph hereof.
COMPANY: INVESTORS
VERSICOR, INC. ALTAMIR & CIE
represented by Apax Partners & Cie
Gerance S.A.
Its Manager
By: /s/ XXXXXXX TCHEVIO
------------------------------ ----------------------------------------
Xxxxxx X. Xxxxxx III By: Maruice Tchevio
Chief Executive Officer CEO
Address: 00000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
APAX FRANCE V-A
represented by Apax Partners & Cie Ventures
S.A.
Its Manager
/s/ XXXXXXX TCHEVIO
----------------------------------------
By: Xxxxxxx Tchevio
CEO
APAX FRANCE V-B
represented by Apax Partners & Cie Ventures
S.A.
Its Manager
/s/ XXXXXXX TCHEVIO
----------------------------------------
By: Xxxxxxx Tchevio
CEO
APAX EUROPE IV GP CO. LIMITED
By: /s/ ILLEGIBLE
-------------------------------------
For Apax Europe IV GP Co. Limited acting in
its capacity as managing general partner of
Apax Europe IV GP L.P acting in its
capacity as managing general partner of:
Apax Europe IV - A, L.P.
Apax Europe IV - B, L.P.
Apax Europe IV C GmbH & Co. KG
Apax Europe IV - D, L.P.
Apax Europe IV - E, L.P.
Apax Europe IV - F, L.P.
Apax Europe IV - G, X.X.
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND II
By Xxxxxxxx Venture Managers Inc.
/s/ Xxxxxx Xxxxxx
----------------------------------------
as General Partner of
Xxxxxxxx Ventures International Life
Sciences Fund II LP1, LP2, LP3
APA EXCELSIOR V, L.P.
By: Excelsior V Partners, L.P.
Its: General Partner
By: Patricof & Co. Managers, Inc.
Its General Partner
By: /s/ ILLEGIBLE
------------------------------------
Title:
---------------------------------
PATRICOF PRIVATE INVESTMENT CLUB II, L.P.
By: Excelsior V Partners, L.P.
Its General Partner
By: Patricof & Co. Managers, Inc.
Its General Partner
By: /s/ ILLEGIBLE
------------------------------------
Title:
---------------------------------
HEALTHCARE VENTURES I, L.P.
Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
Administrative Partner of ------------------------------------
HealthCare Partners V, L.P. Print Name:
The General Partner of ----------------------------
HealthCare Ventures, V, L.P. Title:
---------------------------------
NEW ENTERPRISE ASSOCIATES
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
ABINGWORTH BIOVENTURES II
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
H&Q CAPITAL MANAGEMENT, INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
SEPRACOR INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
HEALTHCARE VENTURES V
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
NEW ENTERPRISE ASSOCIATES VII,
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Print Name: Xxxxxx X. XxXxxxxxx
----------------------------
Title: General Partner
---------------------------------
ABINGWORTH BIOVENTURES SICAV
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
H&Q HEALTHCARE INVESTORS
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
H&Q LIFE SCIENCES INVESTORS
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
HEALTHCARE VENTURES V
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
NEW ENTERPRISE ASSOCIATES VII
LIMITED PARTNERSHIP
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
ABINGWORTH BIOVENTURES SICAV
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Attorney-in-Fact
---------------------------------
H&Q HEALTHCARE INVESTORS
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
H&Q LIFE SCIENCES INVESTORS
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
HEALTHCARE VENTURES V
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
NEW ENTERPRISE ASSOCIATES VII,
LIMITED PARTNERSHIP
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
ABINGWORTH BIOVENTURES SICAV
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
H&Q HEALTHCARE INVESTORS
By: /s/ XXX XXXXXXX
H&Q Healthcare Investors
------------------------------------
Print Name: Xxx Xxxxxxx
----------------------------
Title: Treasurer
---------------------------------
H&Q LIFE SCIENCES INVESTORS
By: /s/ XXX XXXXXXX
H&Q Life Sciences Investors
------------------------------------
Print Name: Xxx Xxxxxxx
----------------------------
Title: Treasurer
---------------------------------
SEPRACOR INC.
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: Chairman & CEO
---------------------------------
S.R. ONE, LIMITED.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
RHO MANAGEMENT TRUST II
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
SEPRACOR INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
S.R. ONE, LIMITED.
By: /s/ XXXX XXXXX
------------------------------------
Print Name: Xxxx Xxxxx
----------------------------
Title: CFO
---------------------------------
RHO MANAGEMENT TRUST II
By: RHO MANAGEMENT COMPANY,
INC. as Investment Advisor
By:
Print Name:
Title:
SEPRACOR INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
S.R. ONE, LIMITED.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
RHO MANAGEMENT TRUST II
By: RHO MANAGEMENT COMPANY,
INC. as Investment
By: /s/ XXXX XXXXXXX
------------------------------------
Print Name: XxxX Xxxxxxx
----------------------------
Title: Managing Director
---------------------------------
EXHIBIT A
SCHEDULE OF INVESTORS
INVESTOR SHARES
SERIES F STOCK
APA Excelsior V, L.P. 1,451,300
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Ph.X.
Xxxxxxxx Private Investment Club II, L.P. 17,627
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Ph.D.
Apax Europe IV GP Co. Limited 1,468,926
XX Xxx 000
13-15 Victoria Road
St. Xxxxx Port
Guernsey Channel Xxxxxxx XXX 00X
Xxxx Xxxxxx V-A 488,136
Represented by Apax Partners & Cie Ventures
Its Manager
00, xxxxxx Xxxxxx
00000 XXXXX XXXXX 00
Xxxx Xxxxxx V-B 54,237
Represented by Apax Partners & Cie Ventures
Its Manager
00, xxxxxx Xxxxxx
00000 XXXXX CEDEX 16
Altamir & Cie 135,593
Represented by Apax Partners & Cie Gerance
Its Manager
00, xxxxxx Xxxxxx
00000 XXXXX Cedex 16
Xxxxxxxx Ventures International Life Sciences Fund II 1,299,435
c/x Xxxxxxxx Venture Management, Ltd.
00 Xxxxxx Xxxxxx
XX00 Xxxxxxxx Xxxxxxx
Attn: Xxxxxx Xxxxxx
HealthCare Ventures V, L.P. 554,295
Xxx Xxxxxxx Xxxxxx, Xxxx. 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
New Enterprise Associates VII, Limited Partnership 395,925
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. XxXxxxxxx
Abingworth Bioventures SICAV 237,555
x/x Xxxxx & Xxx x.x x.x.
000, Xxx xxx Xxxx Xxxxxxx
XX Xxx 000
X-0000 Xxxxxxxxxx
Attn: Xxxx Xxxxx
H&Q Healthcare Investors 142,532
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
Attn: Xxxx X. Xxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
H&Q Life Sciences Investors 95,021
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
Attn: Xxxx X. Xxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Sepracor Inc. 172,314
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
X.X. One, Limited 158,370
000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxx Xxxxxx
X. Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, D.V.M.
Rho Management Trust II 139,444
000 Xxxxx Xxxxxx,
00xx Xxxxx Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx
SERIES A STOCK
Sepracor Inc. 36,000
Attn: Xxxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
SERIES B STOCK
Sepracor Inc. 1,095,000
Attn: Xxxxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
SERIES C STOCK
Healthcare Ventures V, L.P. 1,400,000
Attn: Xxxxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Abingworth Bioventures II 600,000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxx XXXX 0XX
Xxxxxxx
H&Q Healthcare Investors 360,000
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
Attn: Xxxx X. Xxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
H&Q Life Sciences Investors 240,000
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
Attn: Xxxx X. Xxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
New Enterprise Associates VII, Limited Partnership 989,000
Attn: Xxxxxx X. XxXxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA Presidents Fund, L.P. 10,000
Attn: Xxxxxx X. XxXxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
NEA Ventures 1997, Limited Partnership 1,000
Attn: Xxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
GC&H Investments 10,000
Attn: Xxxx X. Xxxxxxx
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
S.R. One, Limited 400,000
Attn: Xx. Xxxxxx X. Xxxxx, D.V.M.
000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxx Xxxxxx
X. Xxxxxxxxxxx, XX 00000-0000
SERIES D-1 STOCK
Pharmacia & Upjohn Company 500,000
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
SERIES E-1 STOCK
Novartis Pharma AG 500,000
Xxxxxxxxxxxx 00
XX-0000
Xxxxx, Xxxxxxxxxxx
EXHIBIT B
REQUEST TO CFO'S FOR QUARTERLY FINANCIAL INFORMATION
EXHIBIT B
REQUEST TO CFO'S FOR QUARTERLY FINANCIAL INFORMATION
Company: _______________________________
Submitted By: ______________________ Period Ending: _______________________
Quarterly Payroll Taxes Paid
Yes ___ No ___
Please email the completed form to: xxxxxx@patilcofcom; seth@patricof com OR FAX
TO (000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
QUARTERLY FINANCIAL REPORT ($000)
------------------------------------------------------------------------------------------------------------------------------------
CURRENT FINANCIAL YTD FINANCIAL
------------------------------------------------------------------------------------------------------------------------------------
ACTUAL BUDGET ACTUAL YTD BUDGET YTD
------------------------------------------------------------------------------------------------------------------------------------
CURRENT QTR. PRIOR YEAR QTR. CURRENT QTR. PRIOR YEAR QTR. CURRENT QTR. PRIOR YEAR QTR. CURRENT QTR. PRIOR YEAR QTR.
------------------------------------------------------------------------------------------------------------------------------------
Revenues $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Net Income (loss) $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Gross Margin $ $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Gross Margin % 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
------------------------------------------------------------------------------------------------------------------------------------
EBITDA $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Cash Flow from
Operations $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
CURRENT QTR. PRIOR YEAR QTR. PREVIOUS QTR.
------------------------------------------------------------------------------------------------------------------------------------
Cash & Cash Equivalents $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Total Current Assets $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Total Current Liabilities $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Long Term Debt $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
Backlog $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
# of Employees/Stores 0.0 0.0 0.0
------------------------------------------------------------------------------------------------------------------------------------
Cash Used (Bum Rate) $0.0 $0.0 $0.0
------------------------------------------------------------------------------------------------------------------------------------
(**IF YOU'VE ATTACHED YOUR CAP TABLE, CURRENT QTR. PRIOR YEAR QTR. PREVIOUS QTR.
YOU DON'T NEED TO COMPLETE THIS SECTION
CAPITALIZATION)
------------------------------------------------------------------------------------------------------------------------------------
Common Shares Outstanding 0.0 0.0 0.0
------------------------------------------------------------------------------------------------------------------------------------
Common Equivalent After Conversion 0.0 0.0 0.0
------------------------------------------------------------------------------------------------------------------------------------
Common Equivalent of warrants & Options 0.0 0.0 0.0
------------------------------------------------------------------------------------------------------------------------------------
Total Shares Fully Diluted 0.0 0.0 0.0
------------------------------------------------------------------------------------------------------------------------------------
By: (CFO):
------------------------------
