LJL BIOSYSTEMS, INC.
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
JUNE 17, 1997
TABLE OF CONTENTS
PAGE
1. Restatement of Existing Rights Agreement. . . . . . . . . . . . . . . . . 1
2. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Request for Registration . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Company Registration . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Obligations of the Company . . . . . . . . . . . . . . . . . . . . . 5
2.6 Furnish Information. . . . . . . . . . . . . . . . . . . . . . . . . 7
2.7 Expenses of Registration . . . . . . . . . . . . . . . . . . . . . . 7
2.8 Underwriting Requirements. . . . . . . . . . . . . . . . . . . . . . 8
2.9 Delay of Registration. . . . . . . . . . . . . . . . . . . . . . . . 8
2.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.11 Reports Under Securities Exchange Act of 1934 . . . . . . . . . . .11
2.12 Assignment of Registration Rights . . . . . . . . . . . . . . . . .11
2.13 "Market Stand-Off" Agreement. . . . . . . . . . . . . . . . . . . .12
2.14 Termination of Registration Rights. . . . . . . . . . . . . . . . .13
3. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . . . .13
3.1 Delivery of Financial Statements . . . . . . . . . . . . . . . . . .13
3.2 Board Observer Rights. . . . . . . . . . . . . . . . . . . . . . . .14
3.3 Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . .14
3.4 Termination of Covenants . . . . . . . . . . . . . . . . . . . . . .16
4. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
4.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . .16
4.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . .16
4.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
4.4 Titles and Subtitles . . . . . . . . . . . . . . . . . . . . . . . .16
4.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
4.6 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
4.7 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . .17
4.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
4.9 Aggregation of Stock . . . . . . . . . . . . . . . . . . . . . . . .17
LJL BIOSYSTEMS, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "AGREEMENT") is
made as of the 17th day of June, 1997, by and among LJL BioSystems, Inc., a
Delaware corporation (the "COMPANY"), the investors listed on EXHIBIT A hereto,
each of which is herein referred to as an "INVESTOR," and Xxx Xxxxxx and Xxxxxx
Xxxxxx, each of whom is herein referred to as a "FOUNDER."
RECITALS
1. The Company and certain of the Investors (the "EXISTING INVESTORS")
entered into a Series A Preferred Stock Purchase Agreement on June 6, 1997 (the
"PURCHASE AGREEMENT"), pursuant to which the Company sold the Existing Investors
shares of the Company's Series A Preferred Stock. Concurrently with the
execution of the Purchase Agreement, the Company, the Founders and the Existing
Investors entered into an existing Investors' Rights Agreement (the "EXISTING
RIGHTS AGREEMENT") in order to provide (i) the Existing Investors with certain
rights to register shares of the Company's Common Stock issuable upon conversion
of the Series A Preferred Stock held by the Investors, (ii) certain of the
Existing Investors with certain rights to receive information pertaining to the
Company, and (iii) certain of the Existing Investors with a right of first offer
with respect to certain issuances by the Company of its securities.
2. Concurrently herewith the Company and the Investors are entering into
an Amended and Restated Series A Preferred Stock Purchase Agreement (the
"AMENDED PURCHASE AGREEMENT"), pursuant to which the Company shall sell, and
certain of the Investors (the "ADDITIONAL INVESTORS") shall acquire, shares of
the Company's Series A Preferred Stock. A condition to the Additional
Investors' obligations under the Amended Purchase Agreement is that the Company,
the Founders and the Investors amend and restate the Existing Rights Agreement
in order to include the Additional Investors as parties, and the Company, the
Founders and the Investors desire to do so.
AGREEMENT
1. RESTATEMENT OF EXISTING RIGHTS AGREEMENT.
Pursuant to Section 3.7 of the Existing Rights Agreement, the
Company, the Founders and the undersigned Existing Investors, being the holders
of the requisite majority of the outstanding Registrable Securities other than
the Founders' Stock (as defined in the Existing Rights Agreement), hereby:
(i) waive the right of first offer contained in Section 2.3 of the Existing
Rights Agreement (including notice requirements) with respect to the issuance of
the shares of Series A Preferred Stock to the Additional Investors and the
issuance of an additional warrant to purchase shares of Series A Preferred Stock
to Xxxxxxxxxx Securities in connection with the closing of the Amended Purchase
Agreement, and (ii) amend and restate the Existing Rights Agreement to read in
its entirety as set forth in this Agreement.
2. REGISTRATION RIGHTS. The Company and the Investors covenant and
agree as follows:
2.1 DEFINITIONS. For purposes of this Section 2:
(a) The terms "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act of 1933, as
amended (the "ACT"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means (i) the shares
of Common Stock issuable or issued upon conversion of the Series A Preferred
Stock (the "STOCK"), (ii) any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Stock, and (iii) the shares of
Common Stock issued to the Founders (the "FOUNDERS' STOCK"), PROVIDED, HOWEVER,
that for the purposes of Section 2.2 or 2.4, the Founders' Stock shall not be
deemed Registrable Securities and the Founders shall not be deemed Holders and
PROVIDED, FURTHER, that the foregoing definition shall exclude in all cases any
Registrable Securities sold by a person in a transaction in which his or her
rights under this Agreement are not assigned. Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as Registrable Securities
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, or
(B) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale;
(c) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "HOLDER" means any person owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with Section 2.12 hereof;
(e) The term "FORM S-3" means such form under the Act as in
effect on the date hereof or any successor form under the Act; and
(f) The term "SEC" means the Securities and Exchange
Commission.
2.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the
earlier of (i) June 6, 1999, or (ii) one (1) year after the effective date of
the first registration statement filed
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with the SEC pursuant to the Act for a firmly underwritten initial public
offering of securities of the Company (other than a registration statement
relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction), a written request from the Holders of a majority of the
Registrable Securities then outstanding that the Company file a registration
statement under the Act covering the registration of at least fifty percent
(50%) of the Registrable Securities then outstanding (or a lesser percent if the
anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $5,000,000), then the Company shall, within ten
(10) days after the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of subsection 2.2(b), use its best
efforts to effect as soon as practicable, and in any event within 60 days after
the receipt of such request, the registration under the Act of all Registrable
Securities that the Holders request to be registered within twenty (20) days
after the mailing of such notice by the Company in accordance with Section 4.5.
(b) If the Holders initiating the registration request
hereunder ("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 2.2 and the
Company shall include such information in the written notice referred to in
subsection 2.2(a). The underwriter will be selected by mutual agreement of a
majority in interest of the Initiating Holders and the Company. In such event,
the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 2.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 2.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant hereto, and
the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder; 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.
(c) Notwithstanding the foregoing, if the Company shall
furnish to Holders requesting a registration statement pursuant to this
Section 2.2, a certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than 90 days after receipt of the request of the
Initiating Holders; PROVIDED, HOWEVER, that the Company may not utilize this
right more than once in any twelve-month period.
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(d) In addition, the Company shall not be obligated to
effect, or to take any action to effect, any registration pursuant to this
Section 2.2:
(i) After the Company has effected two (2)
registrations pursuant to this Section 1.2 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of filing of,
and ending on a date one hundred eighty (180) days after the effective date of,
a registration subject to Section 2.3 hereof; PROVIDED that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(iii) If the Initiating Holders propose to dispose of
shares of Registrable Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 2.4 below.
2.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Act in connection with the firmly underwritten public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan or a transaction
covered by Rule 145 under the Act, a registration in which the only stock being
registered is Common Stock issuable upon conversion of debt securities that are
also being registered, or any registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company in accordance with Section 4.5,
the Company shall, subject to the provisions of Section 2.8, cause to be
registered under the Act all of the Registrable Securities that each such Holder
has requested to be registered.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders of a majority of the Registrable Securities then
outstanding a written request or requests that the Company effect a registration
on Form S-3 and any related qualification or compliance with respect to all or a
part of the Registrable Securities owned by such Holder or Holders, the Company
will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within
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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 2.4: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (3) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 90 days after receipt of
the request of the Holder or Holders under this Section 2.4; PROVIDED, HOWEVER,
that the Company shall not utilize this right more than once in any twelve month
period; (4) if the Company has, within the twelve (12) month period preceding
the date of such request, already effected two registrations on Form S-3 for the
Holders pursuant to this Section 2.4; (5) if the Company has already effected
three registrations on Form S-3 for the Holders pursuant to this Section 2.4; or
(6) 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.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 2.4 shall not be counted as demands for registration or registrations
effected pursuant to Sections 2.2 or 2.3, respectively.
2.5 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 2 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days.
The Company shall not be required to file, cause to become effective or maintain
the effectiveness of any registration statement that contemplates a distribution
of securities on a delayed or continuous basis pursuant to Rule 415 under the
Act.
(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 Act with respect to the disposition of all securities covered
by such registration statement for up to one hundred twenty (120) days.
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(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter 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 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, such
obligation to continue for one hundred twenty (120) days.
(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) Use its best efforts to furnish, at the request of any
Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 2, 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 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, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated 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,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
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2.6 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 2
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities. The Company shall have no obligation with respect to
any registration requested pursuant to Section 2.2 or Section 2.4 of this
Agreement if, as a result of the application of the preceding sentence, the
number of shares or the anticipated aggregate offering price of the Registrable
Securities to be included in the registration does not equal or exceed the
number of shares or the anticipated aggregate offering price required to
originally trigger the Company's obligation to initiate such registration as
specified in subsection 2.2(a) or subsection 2.4(b)(2), whichever is applicable.
2.7 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 2.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one independent counsel for the selling
Holders shall be borne by the Company; PROVIDED, HOWEVER, that the Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2.2 if the registration request is subsequently withdrawn at
the request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 2.2 or such
withdrawal is based upon a material adverse change in the condition, business or
prospects of the Company of which the Initiating Holders were not aware at the
time of such request and the Initiating Holders have withdrawn the request with
reasonable promptness following disclosure by the Company of such material
adverse change.
(b) COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 2.3 for each Holder (which right may be assigned as provided
in Section 2.12), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees relating or apportionable
thereto and the reasonable fees and disbursements of one counsel for the selling
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, but excluding underwriting discounts and
commissions relating to Registrable Securities.
(c) REGISTRATION ON FORM S-3. All expenses incurred in
connection with a registration requested pursuant to Section 2.4, including
(without limitation) all registration, filing, qualification, printers' and
accounting fees and the reasonable fees and disbursements of one independent
counsel for the selling Holder or Holders and counsel for the
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Company, but excluding any underwriters' discounts or commissions associated
with Registrable Securities, shall be borne by the Company.
2.8 UNDERWRITING REQUIREMENTS. In connection with any
offering involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 2.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, that the underwriters determine in their sole discretion
will not jeopardize the success of the offering (the securities so included to
be apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders) but in no event shall the amount of securities of the
selling Holders included in the offering be reduced below fifteen percent (15%)
of the total amount of securities included in such offering, unless such
offering is the initial public offering of the Company's securities in which
case the selling stockholders may be excluded entirely if the underwriters make
the determination described above; and PROVIDED FURTHER that the Founders shall
be excluded entirely from selling shares in a public offering before selling
holders of Registrable Securities other than the Founders are excluded
therefrom. For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder that is a holder of Registrable
Securities and that is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "SELLING STOCKHOLDER," and
any pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
2.9 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
2.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 2:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, any underwriter (as defined in the
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), against any
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losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the 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"): (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 Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Act, the Exchange
Act or any state securities law; and the Company will pay to each such Holder,
underwriter or controlling person, as incurred, 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 subsection 2.10(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 any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the 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 expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 2.10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
subsection 2.10(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, that, in no event shall any indemnity under this subsection 2.10(b)
exceed the net proceeds from the offering received by such Holder, except in the
case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 2.10 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 2.10, deliver to
the indemnifying party a written notice of the
-9-
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 (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the reasonable 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 prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 2.10, 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 2.10.
(d) If the indemnification provided for in this
Section 2.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense 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 statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations; provided, that, in no event shall any contribution by
a Holder under this Subsection 2.10(d) exceed the net proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder.
The relative fault of the indemnifying party and of the indemnified party shall
be determined by reference to, among other things, whether the untrue or 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 2.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
2.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the
-10-
Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public so long as the
Company remains subject to the periodic reporting requirements under Sections 13
or 15(d) of the Exchange Act;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
2.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 2 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of at least 1,000,000 shares of such securities, provided the Company
is, within a reasonable time after such transfer, furnished with 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 PROVIDED,
FURTHER, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Act, and PROVIDED, FURTHER, that, except for
transfers of such shares as a result of distributions to its partners or for
estate planning purposes, without the consent of the Board of Directors, the
Holder may only assign such rights to a person or entity that is primarily in a
financial or investment business until the closing of the Company's initial
public offering, PROVIDED FURTHER that after the closing of such initial public
offering Holder shall not sell such shares in a private transaction (ie not an
open market sale or pursuant to a registration statement) to an entity that,
itself or through a subsidiary, is primarily engaged in the business of
developing and manufacturing automated instrumentation systems for clinical,
research and drug development applications (a
-11-
"COMPETITOR") unless the Holder holds less than 5% of the outstanding capital
stock. For the purposes of determining the number of shares of Registrable
Securities held by a transferee or assignee, the holdings of transferees and
assignees of a partnership who are partners or retired partners of such
partnership (including spouses and ancestors, lineal descendants and siblings of
such partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) shall be aggregated together and with the partnership;
PROVIDED that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under Section 2.
2.13 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that, during the period of duration (up to, but not exceeding, 180 days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the effective date of a registration statement of the
Company filed under the Act, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period except Common Stock included in such registration;
provided, however, that:
(a) such agreement shall be applicable only to the first
such registration statement of the Company that covers Common Stock (or other
securities) to be sold on its behalf to the public in a firm commitment
underwritten public offering yielding gross proceeds of at least $15,000,000 and
with a per share offering price of at least $3.00 per share (a "QUALIFIED
INITIAL PUBLIC OFFERING"); and
(b) all officers and directors of the Company and all
Founders (including affiliates) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 2.13.
Notwithstanding the foregoing, the obligations described in this
Section 2.13 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
2.14 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 2 after the earlier
of (i) four (4) years following the consummation of the sale of securities
pursuant to a registration statement filed by the Company under the Act in
connection with the initial firm commitment underwritten offering of
-12-
its securities to the general public, or (ii) such time as Rule 144 or another
similar exemption under the Act is available for the sale of all of such
Holder's shares during a three (3)-month period without registration and the
Company's Common Stock is traded on a national exchange or the Nasdaq National
Market.
3. COVENANTS OF THE COMPANY.
3.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall
deliver to each Investor holding, and to transferees of, at least 1,500,000
shares of Series A Preferred Stock:
(a) as soon as practicable after the end of each fiscal
year of the Company, an income statement for such fiscal year, a balance sheet
of the Company and statement of stockholder's equity as of the end of such year,
and a statement of cash flows for such year, such year-end financial reports to
be in reasonable detail, prepared in accordance with generally accepted
accounting principles ("GAAP"), and audited and certified by an independent
public accounting firm of nationally recognized standing selected by the
Company;
(b) as soon as practicable after the end of each of the
first three (3) quarters of each fiscal year of the Company, an unaudited profit
or loss statement, a statement of cash flows for such fiscal quarter and an
unaudited balance sheet as of the end of such fiscal quarter;
(c) as soon as practicable prior to the end of each
fiscal year, a budget for the next fiscal year, prepared on a monthly basis,
including balance sheets and sources and applications of funds statements for
such months;
(d) with respect to the financial statements called for
in subsection (b) of this Section 3.1, an instrument executed by the Chief
Financial Officer or President of the Company and certifying that such
financials were prepared substantially in accordance with GAAP consistently
applied with prior practice for earlier periods (with the exception of footnotes
that may be required by GAAP) and fairly present the financial condition of the
Company and its results of operation for the period specified, subject to
year-end audit adjustment, PROVIDED that the foregoing shall not restrict the
right of the Company to change its accounting principles consistent with GAAP,
if the Board of Directors determines that it is in the best interest of the
Company to do so; and
PROVIDED, HOWEVER, that the Company shall not be obligated under any subsection
of Section 3.1 to provide information that it deems in good faith to be a trade
secret or similar confidential information.
3.2 BOARD OBSERVER RIGHTS. If an Investor is not directly
represented on the Company's Board of Directors and such Investor holds at least
1,500,000 shares of Series A Preferred Stock,
(a) the Company shall invite one representative of
Investor to attend all regular meetings of its Board of Directors in a nonvoting
observer capacity, and, in this
-13-
respect, shall give such representative copies of all notices and information
that the Company provides to its directors for Board of Directors meetings;
PROVIDED, HOWEVER, that the Company reserves the right to exclude such
representative from any meeting or portion thereof, and deny such representative
access to any material, if the Company believes that such exclusion or denial of
access is reasonably necessary to preserve the attorney-client privilege, to
protect confidential proprietary information, material non-public information or
for other similar reasons. The Company shall promptly notify Investor of any
actions taken by the Board of Directors in lieu of a meeting.
(b) Investor agrees, and will require any representative
of Investor to agree in writing, to hold in confidence and trust and not use or
disclose any confidential information provided to Investor or learned in
connection with Investor's rights under this Agreement, PROVIDED HOWEVER, that
parties may disclose such information to partners, parents, subsidiaries or
affiliates (provided that none of such third persons is a competitor of the
Company) solely for the purpose of evaluating the investment in the Company and
PROVIDED that such person is subject to an agreement with such party that
requires such person to keep such information confidential. Confidential
information does not include information, technical data or know-how that (i) is
in the possession of Investor at the time of disclosure as shown by Investor's
files and records immediately prior to the time of disclosure; (ii) prior or
after the time of disclosure becomes public knowledge, not as a result of any
action or inaction of the receiving party; (iii) is approved for release by
Company; or (iv) is required to be produced by Investor pursuant to statute,
regulation, subpoena, criminal or civil investigative demand or similar process,
PROVIDED that Investor provides the Company with prompt written notice of such
requirement so that the Company may seek (with the cooperation and reasonable
efforts of Investor) a protective order, confidential treatment or other
appropriate remedy.
(c) The confidentiality provisions hereof with respect to
any confidential information shall survive for a period of five years after the
disclosure of such confidential information.
3.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 3.3, the Company hereby grants to each Major Investor
(as hereinafter defined) a right of first offer with respect to future sales by
the Company of its Shares (as hereinafter defined). For purposes of this
Section 3.3, a "MAJOR INVESTOR" shall mean any person who holds at least
1,000,000 shares of Series A Preferred Stock (or the Common Stock issued upon
conversion thereof) issued pursuant to the Purchase Agreement. For purposes of
this Section 3.3, Major Investor includes any general partners and affiliates of
a Major Investor. A Major Investor who chooses to exercise the right of first
offer may designate as purchasers under such right itself or its partners or
affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("SHARES"), the Company shall first make an offering of such
Shares to each Major Investor in accordance with the following provisions:
-14-
(a) The Company shall deliver a notice by certified mail
("NOTICE") to the Major Investors stating (i) its bona fide intention to offer
such Shares, (ii) the number of such Shares to be offered, and (iii) the price
and terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the Notice,
the Major Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which equals
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion and exercise of all convertible or exercisable
securities then held, by such Major Investor bears to the total number of shares
of Common Stock then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities).
(c) The Company may, during the 45-day period following
the expiration of the period provided in subsection 3.3(b) hereof, offer the
remaining unsubscribed portion of the Shares to any person or persons at a price
not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for
the sale of the Shares within such period, or if such agreement is not
consummated within 60 days after the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 3.3 shall
not be applicable (i) to the issuance or sale of capital stock (or options
therefor) to employees, consultants or directors, pursuant to plans or
agreements approved by the Board of Directors for the primary purpose of
soliciting or retaining their services, or (ii) to the consummation of the
Company's Qualified Initial Public Offering, or (iii) to the issuance of
securities pursuant to the conversion or exercise of convertible or exercisable
securities, or (iv) to the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise, or (v) to the issuance
of securities to financial institutions or other lenders or lessors in
connection with loans, commercial credit arrangements, equipment financings, or
similar transactions, or (vi) to the issuance or sale of the Series A Preferred
Stock and warrants to purchase shares of Series A Preferred Stock to be issued
to Xxxxxxxxxx Securities on or before the date hereof, or (vii) to the issuance
of securities that, with unanimous approval of the Board of Directors of the
Company, are not offered to any existing stockholder of the Company.
3.4 TERMINATION OF COVENANTS. The covenants set forth in
Section 3 shall terminate as to Investors and be of no further force or effect
upon the earliest of: (i) the closing of the Company's Qualified Initial Public
Offering, (ii) the consummation of a merger, acquisition or other change of
control of the Company pursuant to which a Public Market exists for the
Company's capital stock (or other stock issued in exchange therefor) immediately
thereafter. For the purpose of this Agreement, a "PUBLIC MARKET" shall be
deemed to exist if (a) such stock is listed on a national securities exchange
(as that term is used in the Securities Exchange Act of 1934, as amended) or
(b) such stock is traded on the over-the-counter market
-15-
and prices are published daily on business days in a recognized financial
journal; or (iii) when the Company first becomes subject to the periodic
reporting requirements of Sections 13 or 15(d) of the Exchange Act.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any of the Series A Preferred Stock or any Common
Stock issued upon conversion thereof). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.2 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws.
4.3 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 NOTICES. Unless otherwise provided, any notice required
or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier or
sent by fax, or forty-eight (48) hours after being deposited in the U.S. mail,
as certified or registered mail, with postage prepaid, and addressed to the
party to be notified at such party's address as set forth below or on EXHIBIT A
hereto or as subsequently modified by written notice.
4.6 EXPENSES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
4.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, other than the
Founders' Stock; PROVIDED that if such amendment has the effect of affecting the
Founders' Stock (i) in a manner different than securities issued to the
Investors and (ii) in a manner adverse to the interests of the holders of the
Founders' Stock, then such amendment shall require the consent of the holder or
holders of a majority of the Founders' Stock. Any
-16-
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company.
4.8 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(x) such provision shall be excluded from this Agreement, (y) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (z) the
balance of the Agreement shall be enforceable in accordance with its terms.
4.9 AGGREGATION OF STOCK. All shares of the Preferred Stock
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. For the purpose of this Agreement, Chancellor LGT Private Capital
Partners III, L.P., Chancellor LGT Private Capital Offshore Partners II, L.P.
and Citiventure 96 Partnership, L.P. shall be deemed to be affiliates; Alta
California Partners, L.P. and Alta Embarcadero Partners, LLC shall be deemed to
be affiliates; H&Q Healthcare Investors and H&Q Life Sciences Investors shall be
deemed to be affiliates; and MK GVD Fund and Xxxxxxx X. Xxxxxxx shall be deemed
to be affiliates.
[Signature Page Follows]
-17-
The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY: INVESTORS:
LJL BioSystems, Inc. CHANCELLOR LGT PRIVATE CAPITAL
PARTNERS III, L.P.
By: CPCP Associates, L.P., its General
Partner
By: /s/ Xxx Xxxxxx By: Chancellor LGT Venture Partners, Inc.,
----------------------------- its General Partner
Xxx Xxxxxx, President
Address: 404 Tasman By: /s/ Xxxxxxxx X. Xxxxx
Xxxxxxxxx, XX 00000 ---------------------------------------
Name: Xxxxxxxx X. Xxxxx
--------------------------------
Title: Managing Director
--------------------------------
FOUNDERS: CHANCELLOR LGT PRIVATE CAPITAL
OFFSHORE PARTNERS II, L.P.
/s/ Xxx Xxxxxx By: CPCO Associates, L.P., its General
------------------------------- Partner
Xxx Xxxxxx By: Chancellor LGT Venture Partners, Inc.,
its General Partner
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------------- ----------------------------------------
Xxxxxx Xxxxxx Name: Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
---------------------------------
CITIVENTURE 96 PARTNERSHIP, L.P.
By: Chancellor LGT Asset Management, Inc.,
its Investment Adviser
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
---------------------------------
Title: Managing Director
---------------------------------
ALTA CALIFORNIA PARTNERS, L.P.
By: Alta California Management Partners,
L.P.
By: /s/ Xxxx Xxxxxxx
----------------------------------------
General Partner
ALTA EMBARCADERO PARTNERS, LLC
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Member
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THE XXXXXXX X. XXXXXX LIVING
TRUST U/A DD 1/21/93
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
THE XXXXXXX X. XXXXXX
CHARITABLE REMAINDER UNITRUST
DATED 11/23/94
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx, Trustee
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxx
VLG INVESTMENTS 1997
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Partner
---------------------------------
PMSV L.P.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: G.P.
---------------------------------
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx
-------------------------------------------
Xxxx X. Xxxxx
GC&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: Executive Partner
---------------------------------
XXXXXX XXXXXX, AS TRUSTEE OF
XXXX X. XXXXXX IRREVOCABLE
TRUST U/A DD 6/21/96
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------
Title: Trustee
---------------------------------
XXXXXX XXXXXX, AS TRUSTEE OF
XXXX X. XXXXXX IRREVOCABLE
TRUST U/A DD 6/21/96
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------
Title: Trustee
---------------------------------
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
H&Q HEALTHCARE INVESTORS
By: /s/ Xxxx X. Xxxx
----------------------------------------
Its: President
---------------------------------------
H&Q LIFE SCIENCES INVESTORS
By: /s/ Xxxx X. Xxxx
----------------------------------------
Its: President
---------------------------------------
MK GVD FUND, a California limited
partnership
By: MK GVD Management, a California
limited partnership
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
General Partner
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
INVESTORS
NAME/ADDRESS NO. OF SHARES
------------ -------------
Chancellor Private Capital III, L.P. 456,154
c/o Chancellor LGT Asset Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Citiventure 96 Partnership, L.P. 1,756,924
c/o Chancellor LGT Asset Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Chancellor LGT Private Capital Offshore Partners II, 863,846
L.P.
c/o Chancellor LGT Asset Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Alta California Partners, L.P. 1,906,445
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Alta Embarcadero Partners, LLC 43,555
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
The Xxxxxxx X. Xxxxxx Living Trust 30,000
c/o Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
The Xxxxxxx X. Xxxxxx Charitable Remainder 50,000
Unitrust Dated 11/23/94
Tax ID#00-0000000
Xxxxx X. Xxxx, Trustee
c/o X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
NAME/ADDRESS NO. OF SHARES
------------ -------------
Xxxxxx Xxxxxx, as Trustee of 40,000
Xxxx X. Xxxxxx Irrevocable Trust
u/a dd 6/21/96
000 Xxxxxxxx
Xxxx Xxxx, XX 00000
Xxxxxx Xxxxxx, as Trustee of 40,000
Xxxx X. Xxxxxx Irrevocable Trust
u/a dd 6/21/96
000 Xxxxxxxx
Xxxx Xxxx, XX 00000
Xxxxxxx Xxxxxxx 76,000
c/o MK Global Ventures
0000 Xxxx Xxxxxxxx Xx., Xxxxx 000
Xxxx Xxxx, XX 00000
PMSV L.P. 19,000
x/x Xxxx Xxxxxx
Xxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
VLG Investments 1997 15,200
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx 1,900
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxx X. Xxxxx 1,900
c/o Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
GC&H Investments 19,000
0 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
NAME/ADDRESS NO. OF SHARES
------------ -------------
H&Q Healthcare Investors 923,077
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
H&Q Life Sciences Investors 615,385
x/x Xxxxxxxxx & Xxxxx Capital Management, Inc.
00 Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
MK GVD Fund 384,615
c/o MK Global Ventures
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
TOTAL 7,243,001
