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EXHIBIT 10.9
RIGHTS AGREEMENT
This Rights Agreement dated as of November 22, 1996 is entered into by
and among AutoCyte Inc., a Delaware corporation (the "Company"), the individuals
and entities listed on Exhibit A hereto (the "Purchasers").
WHEREAS, the Company and the Purchasers have entered into a Series A
Preferred Stock Purchase Agreement of even date herewith (the "Purchase
Agreement"); and
WHEREAS, the Company and the Purchasers desire to provide for certain
rights to purchase shares of capital stock of the Company which the Company may
from time to time propose to issue and sell;
WHEREAS, the Company and the Purchasers desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or
any other Federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"New Securities" shall mean any capital stock of the Company
whether or not now authorized, and rights, options or warrants to purchase
capital stock, and securities of any type whatsoever which are, or may become,
convertible into capital stock; provided, however, that the term "New
Securities" shall not include (i) the Shares or the shares of Common Stock
issuable upon the conversion of the Shares; (ii) 3,075,000 shares of the
Company's Common Stock currently reserved for issuance pursuant to the AutoCyte,
Inc. 1996 Equity Incentive Plan or to the issuance of shares of Common Stock
pursuant to such plan or to any option or warrant issued at or prior to the date
of this Agreement; (iii) any shares acquired pursuant to restricted stock
arrangements from employees who have terminated their employment with the
Company which are thereafter reissued to employees and; (iv) securities issued
as a result of any stock split, stock dividend or reclassification of Common
Stock, distributable on a pro rata basis to
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all holders of Common Stock; and (v) securities issued pursuant to equipment
lease financings and/or in connection with strategic alliances, joint ventures
or partnerships, each as approved by the Board of Directors.
"Registration Statement" means a registration statement filed by
the Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section
2.5.
"Registrable Shares" means (i) the shares of Common Stock issued
or issuable upon conversion of the Shares and (ii) any other shares of Common
Stock of the Company issued in respect of the Shares (because of stock splits,
stock dividends, reclassifications, recapitalizations, or similar events).
Wherever reference is made in this Agreement to a request or consent of holders
of a certain percentage of Registrable Shares, or to a number or percentage of
Registrable Shares held by a Stockholder (as defined below), such reference
shall include shares of Common Stock issuable upon conversion of the Shares even
though such conversion has not yet been effected.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Shares" shall have the meaning specified in Section 1.2 of the
Purchase Agreement.
"Stockholders" means the Purchasers and any persons or entities to
whom the rights granted under this Agreement are transferred by any Purchasers,
their successors or assigns pursuant to Section 4 hereof.
2. Registration Rights.
2.1. Sale or Transfer of Shares; Legend.
(a) The Registrable Shares shall not be sold or transferred unless
either (i) they first shall have been registered under the Securities Act, or
(ii) the Company first shall have been furnished with an opinion of legal
counsel, reasonably satisfactory to the Company, to the effect that such sale or
transfer is exempt from the registration requirements of the Securities Act.
(b) Each certificate representing the Registrable Shares shall
bear a legend substantially in the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws
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and may not be transferred or otherwise disposed of unless and
until such shares are registered under the Act and such laws or
(1) registration under applicable state securities laws is not
required and (2) an opinion of counsel satisfactory to the Company
is furnished to the Company to the effect that registration under
the Act is not required."
The foregoing legend shall be removed from the certificates
representing any Registrable Shares at the request of the holder thereof at such
time as they become registered under the Securities Act or eligible for resale
pursuant to Rule 144(k) under the Securities Act.
2.2. Required Registrations.
(a) At any time following the earlier of: (i) three years from
closing or (ii) six months after the Company's initial public offering, and
within 90 days following written notice from a Stockholder or Stockholders
holding (or intending to convert Shares into) not less than forty percent (40%)
of the then outstanding Registrable Shares, the Company shall use its best
efforts to effect the registration of such Registrable Shares on Form S-1 or
Form S-2 (or any successor forms) or other appropriate Registration Statement
designated by such Stockholder or Stockholders.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders may request the Company, in writing,
to effect the registration on Form S-3 (or such successor form), of the
Registrable Shares of such Stockholder or Stockholders having an aggregate
offering price of at least $1,000,000 (based on the then current public market
price). Thereupon, the Company shall, as expeditiously as possible, use its best
efforts to effect the registration on Form S-3, or such successor form, of all
Registrable Shares which the Company has been requested to register.
(c) The Stockholders shall have the right to require the Company
to effect two demand registrations on Form S-1 or Form S-2 and an unlimited
number of registrations on Form S-3 (or any successor forms) pursuant to this
Section 2.2; however, a registration on Form S-1 or Form S-2 will not count for
this purpose (i) unless it becomes effective and holders are able to sell at
least 80% of the Registrable Shares sought to be included in such registration,
or (ii) if the Company elects to sell stock of the Company pursuant to a
Registration Statement at the same time. The Company shall not, however,
register any additional shares of stock of the Company at the same time as a
demand registration without the prior written consent of the holders of a
majority of the Registrable Shares to be included in the demand registration.
(d) If at the time of any request to register Registrable Shares
pursuant to this Section 2.2, the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Stockholders may include Registrable Shares pursuant to Section
2.3 or is engaged in any other activity which, in the good faith determination
of the Company's Board of Directors, would be adversely affected by the
requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of six months from the effective date of such offering or the date of
commencement of such other material activity, as
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the case may be, such right to delay a request to be exercised by the Company
not more than once in any one-year period.
2.3. Incidental Registration.
(a) Whenever the Company proposes to file a Registration
Statement, prior to such filing it shall give written notice to all Stockholders
of its intention to do so, and upon the written request of a Stockholder or
Stockholders given within 30 days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall cause all Registrable Shares which the Company has
been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such
Stockholder(s).
(b) In connection with any offering under this Section 2.3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such underwriting unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity as will not, in the
opinion of the underwriters, jeopardize the success of the offering by the
Company. If in the opinion of the managing underwriter the registration of all,
or part of, the Registrable Shares which the Stockholders have requested to be
included would materially and adversely affect such public offering, then the
Company shall be required to include in the underwriting only that number of
Registrable Shares, if any, which the managing underwriter believes may be sold
without causing such adverse effect. In the event of such a reduction in the
number of shares to be included in the underwriting, all Stockholders of
Registrable Shares who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable Shares (or
in any other proportion as agreed upon by such Stockholders) and if any such
Stockholders would thus be entitled to include more shares than such
Stockholders requested to be registered, the excess shall be allocated among
such other requesting holders pro rata based on their ownership of Registrable
Shares. No other securities requested to be included in a registration for the
account of anyone other than the Company or the Stockholders shall be included
in a registration unless all Registrable Shares requested to be included in such
registration are also included.
2.4. Registration Procedures. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period of not less than 90 days from
the effective date;
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(c) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus, including the
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the selling Stockholder shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholder to consummate the
public sale or other disposition of the Registrable Shares owned by the selling
Stockholder in such jurisdictions; provided, however, that the Company shall not
be required in connection with this paragraph (d) to qualify as a foreign
corporation in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and shall return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholder shall be free to resume making offers of
the Registrable Shares.
2.5. Allocation of Expenses. The Company shall pay the Registration
Expenses for (i) the first two demand registrations on Form S-1 or Form S-2 (or
any successor forms) and (ii) the first two demand registrations on Form S-3. If
a registration on a Registration Statement other than Form S-3 (or any successor
form) requested by the Stockholders pursuant to paragraph (a) of Section 2.2 is
withdrawn at the request of the Stockholders requesting it (other than as a
result of information concerning the business or financial condition of the
Company that is made known to the Stockholders after the date on which such
registration was requested) and if the requesting Stockholders holding a
majority of the Registrable Shares requested to be included in such registration
elect not to have such registration counted as a registration requested under
paragraph (a) of Section 2.2, the requesting Stockholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Section 2, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and disbursements of counsel for the Company and one counsel for
the selling Stockholders, out-of-pocket expenses of the Company and the
underwriters, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts and selling commissions and fees of more than one counsel
for the selling Stockholders. Such underwriting discounts and selling
commissions shall be borne pro rata by the selling Stockholders in accordance
with the number of their Registrable Shares included in such registration.
2.6. Indemnification. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, then to
the extent permitted by law the Company shall indemnify and hold harmless the
seller of such Registrable Shares, each
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underwriter of such Registrable Shares and each other person, if any, who
controls such seller 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 such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company shall reimburse each such seller,
underwriter and controlling person for reasonable legal or any other expenses
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus or final prospectus, or any such amendment or supplement,
in reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such seller, underwriter or controlling person
specifically for use in the preparation thereof.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, then to the extent permitted by
law, each seller of Registrable Shares, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors and officers and
each underwriter (if any) and each person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company, such directors and officers, underwriter or controlling
person may become subject under the Securities Act, Exchange Act, state
securities laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made solely
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such seller, specifically for use in connection with
the preparation of such Registration Statement, prospectus, amendment or
supplement; and such seller shall reimburse the Company for reasonable legal or
other expenses incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the obligations of any seller of Registrable Shares hereunder shall not
exceed an amount equal to the proceeds to such seller of the Registrable Shares
sold pursuant to the Registration Statement.
An underwriter shall not be entitled to indemnification pursuant to
this subsection in the event that it fails to deliver to any selling Stockholder
any preliminary or final or revised prospectus, as required by the rules and
regulations of the Commission. Finally, no
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indemnification shall be provided pursuant to this subsection in the event that
any error in a preliminary prospectus of the Company is subsequently corrected
in the final prospectus of the Company for a particular offering, and such final
prospectus is delivered to all purchasers in the offering prior to the date of
purchase of the securities.
Each party entitled to indemnification under this Section 2.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 2.6. The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnifying
Party shall pay such expense 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 the Indemnified Party and any other
party represented by such counsel in such proceeding. 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 that 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 of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
2.7. Indemnification with Respect to Underwritten Offerings. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering, the Company agrees to enter into an underwriting
agreement containing customary representations and warranties with respect to
the business and operations of an issuer of the securities being registered and
customary covenants and agreements to be performed by such issuer, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
2.8. Information by Holder. Each holder of Registrable Shares included
in any registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 2.
2.9. Rule 144 Requirements. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit a
Stockholder to sell securities of the Company 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 Rule 144 under the Securities Act (at any time after
it has become subject to the reporting requirements of the Exchange Act);
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(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request a
written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after 90 days after the closing of
the first sale of securities by the Company pursuant to a Registration
Statement), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
2.10. Selection of Underwriter. In the case of any registration
effected pursuant to Section 2.2, the Company shall have the right to designate
the managing underwriter, subject to the approval of the requesting
Stockholders, which approval shall not be unreasonably withheld or delayed.
2.11. Restrictions on Other Agreements. The Company will not enter into
any agreement with any party which by its terms grants any right superior to
those of the Purchasers, relating to the registration of the Company's Common
Stock without the consent of the holders of not less than fifty-one percent
(51%) of the Registrable Shares then outstanding.
2.12. Termination. The provisions of this Section 2 shall terminate on
the earlier to occur of (i) such time as a Purchaser remains an "affiliate" of
the Company pursuant to Rule 144 and can sell all of his remaining Registrable
Securities under Rule 144 within any three (3) month period; or (ii) such time
as a Purchaser ceases to be an affiliate of the Company pursuant to Rule 144 and
all of the Purchaser's Registrable Securities may be sold pursuant to Rule
144(k).
3. Transfers of Certain Rights.
3.1. The rights granted to the Purchasers may be transferred or
succeeded to only by (i) any general or limited partner, officer or other
affiliate of such Purchaser, (ii) another Purchaser or (iii) any other person or
entity that acquires Shares; provided, however, that the Company is given
written notice by the transferee at the time of such transfer stating the name
and address of the transferee and identifying the securities with respect to
which such rights are being assigned; and, provided, further, as a condition
precedent to any such transfer, the transferee agrees in writing to be bound by
and subject to all of the terms and conditions of this Agreement.
3.2. A transferee to whom rights are transferred pursuant to this
Section 3 may not again transfer such rights to any other person or entity,
other than as provided in paragraph (a) above.
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4. General.
4.1. Notices. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be delivered by hand, by
telecopier, by overnight mail or mailed by first class certified or registered
mail, return receipt requested, postage prepaid:
If to the Company:
AutoCyte, Inc.
000 Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: President
(or at such other address as may have been furnished in writing to the
Purchasers by the Company)
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to a Purchaser, at its address set forth on Exhibit A to this
Agreement (or at such other address as may have been furnished in writing to the
Company by such Purchaser)
Notices provided in accordance with this Section 4 shall be deemed
delivered upon personal delivery, receipt by telecopy or overnight mail, or 48
hours after deposit in the mail in accordance with the above.
4.2. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
4.3. Amendments and Waivers. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the holders of not less than fifty-one percent (51%) of the
Registrable Shares. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
4.4. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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4.5. Captions. The captions of the sections, subsections and paragraphs
of this Agreement have been added for convenience only and shall not be deemed
to be a part of this Agreement.
4.6. Severability. Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the fullest
lawful extent, but if any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be ineffective only to the extent so determined and such
invalidity or unenforceability shall not affect the remainder of such provision
or the remaining provisions of this Agreement.
4.7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the Company and the Purchasers have executed and
delivered this Agreement as an instrument under seal as of the date first above
written.
AUTOCYTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
PURCHASERS:
AMPERSAND SPECIALTY MATERIALS AND
CHEMICALS III LIMITED PARTNERSHIP
By: ASMC-III Management Company Limited
Partnership
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing General Partner
LABORATORY PARTNERS I LIMITED
PARTNERSHIP
By: Ampersand Lab Partner Management
Company Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing General Partner
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XXX XXXXXXX XXXXXXXXXXX
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-In-Fact
SPROUT CAPITAL VII, L.P.
By: DLJ Capital Corporation
Managing Corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-In-Fact
DLJ FIRST ESC L.L.C.
By: DLJ LBO Plans Management Corporation
Manager
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-In-Fact
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation
General Partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-In-Fact
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/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Allemanni, LLC
By: Xxxxx X. Xxxxxx
Title: Manager
/s/ Xxxx-Xxx Belingard
---------------------------------------------
Xxxx-Xxx Belingard
/s/ Xxxxxx Xxxx
---------------------------------------------
Xxxxxx Xxxx
/s/ Xxxxxx Xxxx
---------------------------------------------
Xxxxxx Xxxx
---------------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxx
---------------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxxxxx X. Xxxxx
-----------------------
Xxxxxxxxx X Xxxxx III
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxx X. Knessel, Jr.
/s/ Xxxxxx X. XxxXxxxx
---------------------------------------------
Xxxxxx X. XxxXxxxx
/s/ Xxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx Xxxx
---------------------------------------------
Xxxx X. Xxxx
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Exhibit A
Ampersand Specialty Materials and Chemicals III Limited Partnership
00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
Laboratory Partners I Limited Partnership
00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
DLJ Capital Corporation
0000 Xxxx Xxxx Xxxx, Xxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000-0000
Sprout Capital VII, L.P.
0000 Xxxx Xxxx Xxxx, Xxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000-0000
DLJ First ESC L.L.C.
0000 Xxxx Xxxx Xxxx, Xxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000-0000
The Sprout CEO Fund, L.P.
0000 Xxxx Xxxx Xxxx, Xxxx 0, Xxxxx 000, Xxxxx Xxxx, XX 00000-0000
Allemanni, LLC
c/o Xxxxx X. Xxxxxx, Manager
Xxxx-Xxx Belingard
Xxxxxx Xxxx
Xxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx III
Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. XxxXxxxx
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Xxxxx Xxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxx
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Amendment to Rights Agreement
This Amendment to Rights Agreement ("Amendment") dated as of June 26,
1997 is entered into by and among AutoCyte, Inc., a Delaware corporation (the
"Company"), the individuals and entities listed on Exhibit A hereto (the
"Purchasers").
WHEREAS, the parties hereto have previously entered in a Rights
Agreement dated November 22, 1996 (the "Agreement"); and
WHEREAS, the parties desire to modify the Agreement as hereinafter set
forth and add Roche Image Analysis Systems, Inc. ("RIAS") as a party to the
Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The parties agree that RIAS is added a party to the Agreement.
2. A new paragraph 2.13 shall be added as follows:
"2.13 PIGGYBACK RIGHTS. Notwithstanding anything contained herein to
the contrary, the parties hereto agree that RIAS and Allemanni, LLC each shall
have the right to have any of their respective shares of Common Stock in the
Company registered on a prorata basis and join in any offering each time that
the Company or any holder of the Shares proposes for any reason to register
any Shares or Registrable Shares pursuant to the terms of this Agreement. The
parties agree that these rights shall survive any proposed public offering of
stock by the Company in accordance with the terms of the Agreement.
Notwithstanding anything contained herein to the contrary, this section 2.13
may not be modified except with the written agreement of RIAS and Allemanni,
LLC."
3. The definition of "Shares" and "Registrable Shares" shall include any
of the Common Stock owned by RIAS or Allemanni, LLC.
4. Except as modified herein, the terms and provision of the Agreement are
ratified and confirmed.
17
IN WITNESS WHEREOF, the Company and the Purchasers have executed and
delivered this Agreement as an instrument under seal as of the date first
above written.
AUTOCYTE, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Pres.
PURCHASERS:
AMPERSAND SPECIALTY MATERIALS AND CHEMICALS III
LIMITED PARTNERSHIP
By: ASMC-III Management Company
Limited Partnership
By: ASMC-III MCLP LLP, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Managing General Partner
AMPERSAND SPECIALTY MATERIALS AND CHEMICALS III
COMPANION FUND LIMITED PARTNERSHIP
By: ASMC-III Management Company
Limited Partnership
By: ASMC-III MCLP LLP, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Managing General Partner
18
LABORATORY PARTNERS I LIMITED PARTNERSHIP
By: Ampersand Xxx Xxxxxxxx Management Company
Limited Partnership
By: Ampersand Xxx Xxxxxxxx MCLP LLP, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Managing General Partner
LABORATORY PARTNERS COMPANION FUND LIMITED PARTNERSHIP
By: Ampersand Xxx Xxxxxxxx Management Company
Limited Partnership
By: Ampersand Xxx Xxxxxxxx MCLP LLP, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Managing General Partner
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Attorney-In-Fact
SPROUT CAPITAL VII, L.P.
By: DLJ Capital Corporation
Managing Corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Attorney-In-Fact
19
DLJ FIRST ESC, L.L.C.
By: DLJ LBO Plans Management Corporation
Manager
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Attorney-In-Fact
THE SPROUT CBO FUND, L.P.
By: DLJ Capital Corporation
General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Attorney-In-Fact
ALLEMANNI, LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Manager
ROCHE IMAGE ANALYSIS SYSTEMS, INC.
By: /s/ Xxxxxxxxx X. Xxxxx III
----------------------------
Name: Xxxxxxxx X. Xxxxx III
Title: Secretary
20
-----------------------------------
Xxxx-Xxx Belingard
/s/ Xxxxxx Xxxx
-----------------------------------
Xxxxxx Xxxx
-----------------------------------
Xxxxxx Xxxx
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
/s/ Xxxxxxxxx X. Xxxxx III
-----------------------------------
Xxxxxxxxx X. Xxxxx III
/s/ Xxxxxx X. Knessel, Jr.
-----------------------------------
Xxxxxx X. Knessel, Jr.
/s/ Xxxxxx X. XxXxxxx
-----------------------------------
Xxxxxx X. XxXxxxx
-----------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx