BIEX, INC.
AMENDED INVESTORS' RIGHTS
AGREEMENT
AUGUST 28, 1997
TABLE OF CONTENTS
PAGE
ARTICLE 1 INFORMATION; OBSERVER; AND OTHER RIGHTS AND COVENANTS OF THE
COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Financial And Other Information. . . . . . . . . . . . . . . . . . . . . 1
1.2 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Confidentiality Of Information . . . . . . . . . . . . . . . . . . . . . 3
1.4 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.5 Meetings Of Board Of Directors . . . . . . . . . . . . . . . . . . . . . 3
1.6 Board Of Directors' Visitation Rights. . . . . . . . . . . . . . . . . . 3
1.7 No Purchases Of Stock, Etc . . . . . . . . . . . . . . . . . . . . . . . 4
1.8 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.10 Insider Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.11 Annual Presentation. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.12 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.13 Termination Of Covenants . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 2 RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Exercise Of Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Issuance To Others . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Oversubscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Purchase Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Demand Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2 Piggyback Registration . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Form S-3 Registration. . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.4 State Qualification. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5 Expenses Of Registration . . . . . . . . . . . . . . . . . . . . . . . . 9
3.6 Legal Opinion; Accountant's Letter . . . . . . . . . . . . . . . . . . . 10
3.7 Sale Of Preferred To Underwriter . . . . . . . . . . . . . . . . . . . . 10
3.8 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.9 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.10 Transfer Of Registration Rights. . . . . . . . . . . . . . . . . . . . . 12
3.11 Information by Holder. . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.12 Rule 144 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.13 Other Registration Rights. . . . . . . . . . . . . . . . . . . . . . . . 13
3.14 "Market Stand-Off" Agreement . . . . . . . . . . . . . . . . . . . . . . 14
3.15 Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4 VOTING AGREEMENT WITH RESPECT TO ELECTION OF DIRECTORS;
REPURCHASE OPTION; RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT . . . . 15
4.1 Voting Agreement With Respect To Election Of Directors . . . . . . . . . 15
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TABLE OF CONTENTS
(CONTINUED)
PAGE
4.2 Right Of First Refusal And Co-Sale Agreement . . . . . . . . . . . . . . 16
4.3 Restrictions On Transfer . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 No Adverse Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.5 Term Of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.6 Legend On Stock Certificates . . . . . . . . . . . . . . . . . . . . . . 19
4.7 Company Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 5 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.1 Termination Of Prior Agreement . . . . . . . . . . . . . . . . . . . . . 20
5.2 Assignment; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . 20
5.3 Costs Of Enforcement; Remedies . . . . . . . . . . . . . . . . . . . . . 20
5.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.5 Amendments And Waivers . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 6 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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AMENDED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED INVESTORS' RIGHTS AGREEMENT (this "Agreement") is made as
of the 28th day of August, 1997, by and among Biex, Inc., a Delaware
corporation (the "Company"), the holders of the Series A Preferred Stock of
the Company (the "Series A Holders"), the holders of the Series B Preferred
Stock (the "Series B Holders"), the holders of the Series C Preferred Stock
of the Company (the "Series C Holders"), the holders of the Series D
Preferred Stock of the Company (the "Series D Holders") and the purchasers of
the Series E Preferred Stock (the "Series E Purchasers") (the Series A
Holders, the Series B Holders, the Series C Holders and the Series D Holders,
the Series E Purchasers as set forth on Exhibit A hereto are referred to
collectively herein as the "Stockholders" and individually as a
"Stockholder"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxx Xxxxxxx ("Xxxxxxx"),
Xxxxx X. Xxxxxx ("Xxxxxx") and the Colorado Incubator Fund, L.P. ("CIF").
Capitalized terms used in this Agreement not otherwise defined herein shall
have the meanings set forth in Article 6.
RECITALS
WHEREAS, the Company, the Series A Holders, the Series B Holders, the
Series C Holders, the Series D Holders, Xxxxxxx, Dullien and CIF are parties
to the Amended Investors' Rights Agreement dated as of August 15, 1996 (the
"Investors' Rights Agreement");
WHEREAS, the Company is issuing shares of its Series E Preferred Stock
to the Series E Purchasers pursuant to a certain Series E Preferred Stock
Purchase Agreement of even date herewith;
WHEREAS, it is anticipated that future sales of securities of a similar
nature may occur; and
WHEREAS, the Company, the Stockholders, Feldman, Dullien, Xxxxxx and CIF
desire to set forth in a single agreement the rights granted to, and the
obligations of, the Stockholders, Xxxxxxx, Dullien and CIF which were
previously set forth in the Investors' Rights Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties mutually agree as follows:
ARTICLE 1
INFORMATION; OBSERVER; AND OTHER RIGHTS AND COVENANTS OF THE COMPANY
1.1 FINANCIAL AND OTHER INFORMATION. The Company will furnish the
reports and information specified in this Section 1.1 to 5% Holders or to
each Holder that is a "Small Business Investment Company" as defined in the
Small Business Investment Act of 1958, as amended, and that requests such
information from the Company in writing.
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(a) ANNUAL REPORTS. As soon as practicable after the end of each
fiscal year, and in any event within 120 days thereafter, a consolidated
balance sheet of the Company and its Subsidiaries (as defined below)(if any)
as of the end of such fiscal year, and a consolidated statement of
operations, and a consolidated statement of cash flows for such year,
prepared in accordance with generally accepted accounting principles in
reasonable detail including all supporting schedules and notes and
accompanied by the opinion of independent public accountants of national
standing selected by the Company. A "Subsidiary" shall mean a corporation or
partnership with respect to which the Company owns, directly or indirectly,
shares or partnership interests entitling the Company, in the absence of
events of default, to elect a majority of the board of directors.
(b) QUARTERLY REPORTS. As soon as practicable after the end of the
first, second and third quarterly accounting periods and in any event within 60
days thereafter, a consolidated balance sheet of the Company and its
Subsidiaries (if any) as of the end of such quarter, a consolidated statement of
operations, and a consolidated statement of cash flows for such quarter and for
the current fiscal year to date, prepared in accordance with generally accepted
accounting principles (except that all footnotes need not be included in
quarterly statements and quarterly statements shall be subject to changes
resulting from year-end audit adjustments), setting forth, in each case,
comparisons with the corresponding periods of the previous fiscal year, together
with a comparison of such statements to the Company's operating plan, all in
reasonable detail and signed by the principal financial officer of the Company.
(c) MONTHLY REPORTS. As soon as practicable after the end of each
month and in any event within 30 days thereafter, (i) a consolidated balance
sheet of the Company and its Subsidiaries (if any) as of the end of such
month, and a consolidated statement of operations, and a consolidated
statement of cash flows for such month and for the current fiscal year to
date, prepared in accordance with generally accepted accounting principles
(except that all footnotes need not be included in monthly statements and
monthly statements shall be subject to changes resulting from year end audit
adjustments), and (ii) a pro forma cash flow statement of anticipated cash
flow for the next succeeding 90 day period of the Company and its
Subsidiaries (if any), all in reasonable detail and signed, by the principal
financial officer of the Company.
(d) ANNUAL BUDGET AND PLAN. As soon as available after submission
and approval by the Board of Directors and in any event within 30 days before
the commencement of each fiscal year of the Company, a copy of the operating
budget and plan for such fiscal year prepared and approved by the Board. Any
modifications in such operating plan shall be delivered to the 5% Holders as
promptly as practicable after such changes have been approved by the Board.
The budget and plan shall include monthly capital and operating expense
budgets, cash flow statements and profit and loss and quarterly balance sheet
projections.
(e) OTHER DIRECTORS' INFORMATION. Promptly after it is available,
any additional financial information and all materials distributed to members
of the Board of Directors.
(f) OTHER INFORMATION. Such other information relating to the
financial condition, business, prospects or corporate affairs of the Company
as any 5% Holder may, from time to time, reasonably request.
2
1.2 INSPECTION. Any 5% Holder shall have the right, at its
expense, to visit any of the properties of the Company or any of its
Subsidiaries, inspect any of its books and records and discuss its affairs,
finances and accounts with its officers, all at such reasonable times and as
often as may be reasonably requested.
1.3 CONFIDENTIALITY OF INFORMATION. Each Holder agrees that any
information obtained by such Holder pursuant to Section 1.1 or 1.2, which is
proprietary to the Company or otherwise confidential, will be held in
confidence and will not be used or disclosed without the prior written
consent of the Company; provided, however, that a Holder may disclose such
information without the prior written consent of the Company to its partners,
employees or agents for purposes of evaluating, or otherwise taking action,
in respect of its investment if in connection with such disclosure to such
partners, employees or agents the Holder protects the confidentiality of such
information to the same extent as it protects the confidentiality of its own
confidential information.
1.4 INSURANCE. The Company will use its best efforts to maintain
a key man level term life insurance policy on the life of Xxxxxx Xxxxxxx in
the face amount of at least $1,000,000, naming the Company as beneficiary.
The Company will pay or cause to be paid all premiums on such life insurance
as the same from time to time become payable. The Company will request the
insurer on such policy on life insurance to provide that it may not be
canceled unless the insurance carrier gives the Holders (or if the insurer
requires, a designated representative of the Holders) at least 20 days' prior
written notice thereof. If requested by the holders of at least 65% of the
Purchaser Common (assuming conversion of the Preferred Stock into Common
Stock at the conversion rate then in effect, but excluding Public Shares),
the Company will use its best efforts to obtain and maintain, level term life
insurance on the lives of such other officers and employees and in such face
amounts as may be requested by such Holders, naming the Company as
beneficiary. Within 30 days after the Closing Date, the Company will obtain
and will thereafter maintain such casualty and liability insurance as is
customarily maintained by companies engaged in the same or similar businesses.
1.5 MEETINGS OF BOARD OF DIRECTORS. The Company shall hold
regular meetings of the Board of Directors at least once per quarter. The
Company will pay all reasonable out-of-pocket expenses incurred by each
representative of a Stockholder who is on the Board of Directors in
connection with his or her attendance at such meetings and in connection with
his or her performing any service or conducting any business of the Company
at the request of the Company.
1.6 BOARD OF DIRECTORS' VISITATION RIGHTS. The Company will give
to each Holder who together with its general partners and affiliates holds at
least 20% (such Holders to be referred to as "20% Holders") of the number of
shares of Purchaser Common (assuming conversion of the Preferred Stock into
Common Stock at the conversion rate then in effect, but excluding Public
Shares) whose representative is not a director at least five business days'
prior written notice of each meeting (including any held by conference
telephone) of the Board of Directors of the Company, specifying the time and
place of such meeting and, to the extent then known, the matters to be
discussed thereat. So long as it remains a Holder, Hickory Capital
Corporation shall be invited to have a representative attend meetings of the
Board of Directors. Each 20% Holder's representative shall be invited to
attend all such meetings (and to participate
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in any meeting held by conference telephone). The Company will not be
required to pay any expenses incurred or paid by such 20% Holders' or Hickory
Capital Corporation's representatives in connection with their attendance of
board meetings other than representatives who are members of the Board of
Directors. In the case of an emergency, the persons having visitation rights
under this Section 1.6 will be given the same notice of the meeting that is
given to the directors.
1.7 NO PURCHASES OF STOCK, ETC. The Company will not directly or
indirectly, purchase, or redeem any share of its outstanding capital stock or
any securities or options exercisable for, or convertible into, its capital
stock except (i) redemption of the Preferred in accordance with the Amended
and Restated Certificate of Incorporation of the Company and (ii) the
repurchase of stock at cost upon termination of engagement of an officer,
director, employee or consultant.
1.8 INVESTMENTS. Without the approval of the Board of Directors,
the Company will not acquire any corporation or other entity, nor purchase
nor lease (as lessee) all or a substantial portion of the assets, property,
business, stock or other securities or interest of another corporation or
entity. Without Board approval, the Company will not invest (as a
shareholder, partner, lender or otherwise) in any corporation, partnership,
joint venture or any other entity, provided, however, the foregoing
prohibition shall not prevent the Company from purchasing short-term money
market instruments.
1.9 SUBSIDIARIES. The Company will not create, own or otherwise
acquire or hold any Subsidiary.
1.10 INSIDER TRANSACTIONS. The Company will not engage in any
transaction with any of the Company's directors, officers, employees or
stockholders except (i) as provided in this Agreement; (ii) reimbursement of
reasonable expenses incurred in the ordinary course of business including
attendance at board meetings; (iii) the issuance of options and Common Stock
reserved for such issuance on the date hereof to employees and consultants
pursuant to a stock option or purchase plan approved by the directors (and
stockholders if required by the Internal Revenue Code) of the Company and
administered by the Board of Directors or a Compensation Committee approved
by it, provided that each grant of such options or Common Stock will be
issued subject to such exercise or vesting schedule (if any) as may be
determined by the Board of Directors and provided further that the number of
shares available for such plan may be increased with Board approval; and (iv)
as provided in employment contracts which are approved by the Board of
Directors.
1.11 ANNUAL PRESENTATION. The Company shall, at the request of any
20% Holder, make a presentation to such 20% Holder and its partners or
employees at such 20% Holder's annual meeting, describing the Company and its
past, present and future objectives and strategies; provided that the Company
shall not be required to make such presentation to any one 20% Holder on more
than one occasion during any calendar year period.
1.12 COMPLIANCE WITH LAWS. The Company shall comply with all
applicable laws, rules and regulations of all governmental authorities the
violation of which might have a material adverse affect upon its business or
financial condition.
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1.13 TERMINATION OF COVENANTS. The covenants contained in this
Article 1 shall terminate upon sale of securities by the Company pursuant to
a Public Offering.
ARTICLE 2
RIGHT OF FIRST REFUSAL
2.1 EXERCISE OF RIGHT. If prior to a Public Offering the Company
should desire to issue any equity securities or debt securities or any other
evidence of indebtedness ("Offered Securities") for cash in a transaction not
registered under the Securities Act, it shall give each Holder the first
right to purchase all or any portion of such Offered Securities as provided
below. Such purchase shall be made on the same terms as the Company is
willing to sell such Offered Securities to any other person. Prior to any
sale or issuance by the Company of Offered Securities, the Company shall
notify each Holder, in writing, of its intention to sell and issue such
Offered Securities, setting forth the amount of Offered Securities it desires
to sell and the terms under which it proposes to make such sale. Each Holder
shall have 20 days after the Company gives its aforesaid notice to notify the
Company of the maximum number of the Offered Securities that it desires to
purchase upon the terms set forth in the Company's notice. Each Holder
exercising the option shall also specify in its notice whether its purchase
is contingent upon the Company consummating the sale of all of the Offered
Securities (or any portion thereof) which it has proposed to sell as set
forth in the Company's notice. A Holder may assign its rights to purchase
(in whole or in part) to an Affiliate.
2.2 ISSUANCE TO OTHERS. Following the end of the 20-day period
that the Holders have to exercise their option, the Company may sell any
Offered Securities with respect to which the Holders did not indicate a
desire to purchase, provided that all such sales described in this sentence
shall be made within 90 days following the Company's notice and shall be upon
terms and conditions no more favorable to the purchaser than those set forth
in the Company's notice. Any Offered Securities described in the Company's
Notice which are not sold within such 90-day period may not be sold
thereafter unless the Company again follows the provisions of this Article 2.
2.3 OVERSUBSCRIPTION. If the Holders oversubscribe for the
Offered Securities, each Holder who notifies the Company that it desires to
purchase Offered Securities shall have a right to purchase a pro rata portion
of such Offered Securities based on the percentage that the Purchaser Common
held by it bears to the shares of Purchaser Common held by all Holders who
notify the Company of their desire to purchase any of the Offered Securities,
assuming, for purpose of such allocation that all Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock
and Series E Preferred Stock has been converted into Common Stock at the then
current conversion price but excluding all Public Shares; provided, however,
that no Holder shall be allocated more of the Offered Securities than the
maximum number it indicated it was willing to purchase in its notice and any
of the Offered Securities which would otherwise be allocated to it will be
allocated among the other Holders in accordance with this sentence. The
Company shall promptly advise each Holder of the amount of Offered Securities
it is entitled to purchase as a result of the allocation.
5
2.4 PURCHASE PROCEDURES. Each Holder who gives the Company notice
that it desires to purchase any of the Offered Securities shall pay for the
Offered Securities which it has notified the Company that it will purchase by
check against delivery of the Offered Securities at the executive office of
the Company within ten days after the expiration of the 20-day period
referred to above unless such Holder made its purchase contingent upon the
sale of all Offered Securities (or any portion thereof) specified in the
Company's notice in which event such purchase and sale will take place upon
satisfaction of such contingency with at least ten days prior written notice
to such Holder.
2.5 EXCLUSIONS. The provisions of this Article 2 shall not apply
to (i) the issuance from and after the Closing Date of the shares of Common
Stock reserved for issuance (a) upon conversion of the Preferred Stock, (b)
options to purchase up to 2,290,610 shares of Common Stock reserved for
issuance under the Company's Stock Option Plan, or any additional shares
subsequently reserved for issuance to employees, directors and consultants
with approval by the Board of Directors, or (c) rights to acquire capital
stock of the Company existing on the date hereof and set forth on the
Schedule of Exceptions delivered at the closing under the Purchase Agreement,
(ii) warrants or other rights to purchase Common Stock (and the issuance of
shares of Common Stock on the exercise thereof) issued to the Company's
suppliers, customers or equipment lessors or to lenders providing financing
used solely to purchase equipment, provided that any transaction under this
clause (ii) has received approval by the Board of Directors, (iii) the
issuance of securities pursuant to a Public Offering, (iv) the issuance of
securities in connection with a bona fide acquisition of or by the Company of
any business or property, whether by merger, consolidation, sale of assets,
sale or exchange of stock or otherwise, or (v) the issuance of shares of
Preferred Stock reserved for issuance upon exercise of warrants initially to
purchase an aggregate of 465,584 shares of Series B Preferred Stock.
ARTICLE 3
REGISTRATION RIGHTS
3.1 DEMAND REGISTRATION.
(a) EXERCISE OF RIGHT. If at any time after the earlier of
the Company's Public Offering or June 26, 1999 and prior to June 26, 2005
(but not within three months after the effective date of a Registration
Statement pursuant to which securities of the Company were sold to the
public) the Company receives a request from Initiating Holders for the
registration of least 30% of the Underlying Common Stock held by the
Initiating Holders (if any lesser percentage of the anticipated aggregate
offering price, net of underwriting discounts and commissions, is more than
$2,000,000), the Company will prepare and file with the Securities and
Exchange Commission a Registration Statement with respect to a public
offering of the Underlying Common Stock which the Holders making such request
desire to include in a public offering. In the event that a request for
registration is made by less than all of the Holders, the Company will notify
all other Holders of such request and any other Holder must notify the
Company within 30 days after such notice from the Company if it wishes to
join in the request. The Company shall cause a Registration Statement to be
filed as soon as practicable but in no event later than 90 days after receipt
of the initial request for registration, provided that the Company
6
may defer the filing of a Registration Statement for up to 120 days after the
request for registration is made if the Board of Directors of the Company
determines in good faith that it would be seriously detrimental to the
Company to file the Registration Statement without such deferral. The Company
shall use its best efforts to cause such Registration Statement to become
effective as promptly as practicable and to ensure the availability of a
prospectus meeting the requirements of the Securities Act for a period of 180
days following the effective date of such Registration Statement.
(b) UNDERWRITING. If the Initiating Holders intend to
distribute the Underlying Common Stock covered by their request by means of
an underwriting, they shall so advise the Company as a part of their request
made pursuant to subsection (a) and the Company shall include such
information in its written notice to the other Holders. The right of any
Holder to registration pursuant to this Section 3.1 shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Underlying Common Stock in the underwriting (unless otherwise
mutually agreed by 65% in interest of the Initiating Holders, the managing
underwriter and such Holder) to the extent provided herein. The Company
shall (together with all Holders proposing to distribute their Underlying
Common Stock) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by 65% in interest of the
Initiating Holders.
(c) MARKETING LIMITATIONS. Notwithstanding any other
provision of this Section 3.1, if the managing 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 Underlying Common Stock and the number of shares of
Underlying Common Stock that may be included in the registration and
underwriting shall be allocated among all Holders desiring to participate in
such registration in proportion, as nearly as practicable, to the respective
shares of Underlying Common Stock held by such Holders at the time of filing
the Registration Statement and no securities held by any person other than a
Holder shall be included therein. No Underlying Common Stock or other
securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. Except with the
consent of the Holders who own at least the 65% of the Underlying Common
Stock to be included in the registration, the Company shall not include
securities for its own account or for the account of any person (other than
the shares of Common Stock held by the Holders that are included in the
registration in accordance with the provision of this Section 3.1) in any
registration undertaken pursuant to this subsection and neither the Company
nor any person or Holder whose shares were not included in the registration
shall sell any such securities in a public offering until at least 90 days
following completion of the offering of the securities included in the
registration or, upon the request of the managing underwriter, up to an
additional 180 days.
(d) WITHDRAWAL. Any Holder may, at any time, prior to the
effectiveness of a Registration Statement withdraw its Underlying Common
Stock therefrom. The Company shall be obligated to register Underlying Common
Stock pursuant to this Section 3.1 on only two occasions; provided that if
prior to the effectiveness of a Registration Statement, the number of Holders
participating or the number of shares of Underlying Common Stock included
would not be sufficient to initiate a registration pursuant to this Section
3.1, the Company may withdraw its Registration Statement and, unless such
insufficiency resulted from shares of Underlying
7
Common Stock being withdrawn as a result of a materially adverse event or
circumstance relating to the Company which was not known to the Initiating
Holders at the time of their request for registration, the Company will be
deemed to have satisfied one of its obligations to register Underlying Common
Stock under this Section 3.1.
3.2 PIGGYBACK REGISTRATION.
(a) RIGHT TO JOIN IN REGISTRATION. If at any time prior to
August 15, 2006, the Company proposes to file a Registration Statement under
the Securities Act seeking registration of any securities of the Company for
sale for cash to the public either for its own account or for the account of
any holder of securities of the Company, the Company shall notify, in
writing, each Holder of its intention to file such Registration Statement and
in addition to, and independent of, the rights afforded by Section 3.1, will
afford each Holder the opportunity to request inclusion in such Registration
Statement of all or any part of its Underlying Common Stock. If any Holder
desires to join in such Registration Statement, it shall, within 30 days
after the date of mailing such notice by the Company, notify the Company, in
writing, of the number of shares of Underlying Common Stock it desires to
include in any such Registration Statement. If a Holder requests inclusion of
any Underlying Common Stock in such Registration Statement and if such public
offering is to be underwritten, the Company will request the underwriters of
the offering to purchase and sell such Underlying Common Stock. The right of
any Holder to registration pursuant to this Section 3.2 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of
such Holder's Underlying Common Stock in the underwriting unless otherwise
agreed to by the Company.
(b) MARKETING LIMITATION. If the managing underwriter
determines that marketing factors require a limitation of the number of
shares to be underwritten, the Company shall so advise the Holders and the
other persons distributing their securities through such underwriting and (i)
Common Stock held (or issuable upon conversion or exercise of securities
held) by any person who does not have contractual rights of registration
shall first be excluded and (ii) if such exclusion is not sufficient, Common
Stock held (or issuable upon conversion or exercise of securities held) by
any person other than a Holder and shares of Underlying Common Stock held by
the Holders shall be excluded to the extent required to permit the number of
shares of Underlying Common Stock and Common Stock held by such other persons
that may be included in the registration and underwriting to be allocated
among all such Holders and other persons in proportion, as nearly as
practicable, to the number of shares of Underlying Common Stock held by all
such Holders and shares of Common Stock held (or issuable upon conversion or
exercise of securities held) by such other persons at the time of filing the
Registration Statement, provided that (i) no such inclusion of Underlying
Common Stock or Common Stock by the underwriter may reduce the securities
being offered by the Company for its own account in the first such
underwriting and may not reduce such securities being offered by the Company
for its own account by more than 20% in any subsequent underwriting, and (ii)
no securities held by an employee (or former employee) of the Company may be
included in the registration without the prior written consent of Holders of
at least 65% of the Underlying Common Stock to be included in the
registration. No Common Stock, Underlying Common Stock or other securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. Holders who hold
securities of the Company which were
8
not included in the registration shall not sell such securities in a public
offering until at least 180 days following the completion of the offering of
the securities included in the registration.
(c) WITHDRAWAL. The Company may decline to file a Registration
Statement after notice to each Holder, or withdraw a Registration Statement
after filing and after such notice, but prior to the effectiveness thereof,
provided that it shall promptly notify each Holder, in writing of any such
action. Any Holder may, at any time prior to the effectiveness of a
Registration Statement filed pursuant to this Section 3.2, withdraw its
Underlying Common Stock therefrom. The fact that any Underlying Common Stock
has been the subject of a request for registration pursuant to this Section
3.2 shall not prevent such Common Stock from being the subject of future
requests for registration pursuant to this Section 3.2 or Section 3.1 or 3.3
if such Underlying Common Stock was not sold in a public offering pursuant to
the Registration Statement with respect to which the prior request was made.
3.3 FORM S-3 REGISTRATION. The Company will use its best efforts
to qualify for registration on Form S-3 (references to Form S-3 to include
any equivalent successor form) and to that end, the Company shall register
(whether or not required by law to do so) its Common Stock under the Exchange
Act within 12 months following the effective date of the first registration
of any securities of the Company on Form S-1 or SB-2 (including any successor
forms), provided that securities have been sold to the public pursuant to
such registration. After the Company has qualified for the use of Form S-3,
the Holders of Underlying Common Stock shall have the right to request an
unlimited number of registrations on Form S-3 under this Section 3.3 (each
such request shall be in writing and shall state the number of the shares of
Underlying Common Stock to be disposed of and the intended method of
disposition of such share by such Holder or Holders), provided that the
Company shall not be required to effect more than two registrations pursuant
to this Section 3.3 in any 12-month period, and shall not be required to
effect a registration unless the Holders requesting registration propose to
dispose of shares of Underlying Common Stock that they reasonably anticipate
will have an aggregate disposition price (before deduction of underwriting
discounts and expenses of sale) of at least $500,000. The Company shall give
notice to all Holders of the receipt of a request for registration pursuant
to this Section 3.3 and shall provide a reasonable opportunity for other
Holders to participate in the registration. Subject to the foregoing the
Company shall use its best efforts to effect promptly the registration of ALL
shares of Underlying Common Stock on Form S-3, to the extent requested by the
Holders.
3.4 STATE QUALIFICATION. In connection with any registration of
Underlying Common Stock pursuant to Section 3.1, 3.2 or 3.3 or the sale of
Underlying Common Stock pursuant to Rule 144 under the Securities Act, the
Company will use its best efforts to qualify the offering under such state
securities laws as the Holders requesting registration shall reasonably
request or to otherwise satisfy the requirements of such state securities
laws.
3.5 EXPENSES OF REGISTRATION. In connection with any Registration
Statements prepared and filed in accordance with Section 3.1, 3.2 or 3.3, the
Company will bear the entire expense of the (i) preparation and filing of
such Registration Statement, (ii) furnishing of such number of copies of the
prospectus included therein as may be reasonably required in connection with
the offering, (iii) qualification of such offering under such state
securities laws as the Holders requesting registration shall request, (iv)
the fees and expenses of counsel for the
9
Company and the fees and expenses of one counsel for the Holders. The Holders
shall pay all selling expenses attributable to their Underlying Common Stock
that is included in the Registration Statement, including underwriting
commissions and discounts.
3.6 LEGAL OPINION; ACCOUNTANT'S LETTER. In an underwritten
offering, the Company shall furnish to each Holder of Underlying Common Stock
included in a Registration Statement a signed counterpart, addressed to each
such Holder and their underwriters, if any, of:
(a) an opinion of counsel for the Company, dated the
effective date of the Registration Statement; and
(b) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial statements included in
the Registration Statement; covering substantially the same matters with
respect to the Registration Statement (and the prospectus included therein)
and (in the case of the accountants' letter) with respect to the events
subsequent to the date of the financial statements, as are customarily
covered (at the time of such registration) in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in connection with
underwritten public offering of securities.
3.7 SALE OF PREFERRED TO UNDERWRITER. Notwithstanding any
provision in this Agreement to the contrary, in lieu of converting any share
of Preferred Stock prior to the filing of any Registration Statement filed
pursuant to this Agreement, the holder of such shares may sell them to the
underwriters of the offering being registered upon the undertaking of such
underwriters to convert the Preferred Stock on or prior to the closing date
of the offering. The Company agrees to cause the Common Stock issuable on the
conversion of the Preferred Stock to be issued within such time as will
permit the underwriters to make and complete the distribution contemplated by
the underwriting.
3.8 INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY. In the event of any
registration of any of its securities under the Securities Act pursuant to
this Agreement, the Company shall indemnify and hold harmless each Holder
requesting or joining in a registration of such securities, each of its
officers, directors and partners and such Holder's legal counsel and
accountants, each underwriter (as defined in the Securities Act) and each
controlling person of each of the foregoing, if any, (within the meaning of
the Securities Act) against any losses, claims, damages or liabilities, joint
or several (or actions in respect thereof), including any of the foregoing
incurred in the settlement of any litigation, commenced or threatened, to
which any of them may be subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(A) any untrue statement (or alleged untrue statement) of any material fact
contained in any offering circular or Registration Statement under which such
securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any summary prospectus
issued in connection with any securities being registered, or any amendment
or supplement thereto, or any other document, or (B) any 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 (C) any violation
by the Company of the Securities Act or any Blue Sky law
10
or any other statute or common law, or any rule or regulation promulgated
under the Securities Act or any Blue Sky law or any other law, applicable to
the Company in connection with any such registration, qualification or
compliance, and shall reimburse each such person entitled to indemnification
under this subsection (a) for any legal or other expenses reasonably incurred
by such person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable to any such person 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 offering circular, Registration Statement,
preliminary prospectus, summary prospectus, prospectus, or amendment or
supplement thereto, or any other document, in reliance upon and in conformity
with written information furnished to the Company by such person,
specifically for use therein. The indemnity provided for herein shall remain
in full force and effect regardless of any investigation made by or on behalf
of the person seeking indemnification and shall survive transfer of such
securities by such Holder.
(b) INDEMNIFICATION BY HOLDERS. The Company may require as a
condition to having the Underlying Common Stock included among the securities
as to which such registration is being effected that each Holder requesting
or joining in a registration agree (severally and not jointly) to indemnify
the Company, its directors and officers and its legal counsel and
accountants, each underwriter (as defined in the Securities Act), each
controlling person of each of the foregoing and each other such Holder, each
of its officers, directors and partners and each controlling person of such
Holder, against any losses, claims, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in the settlement
of any litigation, commenced or threatened, joint or several, to which any of
them may become subject under the Securities Act or under any other statute
or at common law, 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
offering circular or Registration Statement under which such securities were
registered under the Securities Act at the request of such Holder pursuant to
this Agreement, any preliminary prospectus or final prospectus contained
therein, or any summary prospectus issued in connection with any securities
being registered, or any amendment or supplement thereto, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) was made in such Registration Statement,
preliminary prospectus, summary prospectus, prospectus or amendment or
supplement thereto, solely in reliance upon and in conformity with written
information furnished to the Company by such Holder specifically for use
therein, and to reimburse such persons for any legal or other expenses
reasonably incurred in connection with investigating or defending any such
loss, claim, damage, liability or action, provided that a Holder's total
liability under any indemnity given pursuant to this subsection (b) shall not
exceed the net proceeds received by such Holder from the sale of stock
pursuant to the registration.
(c) NOTICE OF CLAIM. Each party entitled to indemnification
under this Agreement (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has written notification 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
11
or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at the Indemnified Party's expense, 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
subsection (c). Notwithstanding the foregoing, an Indemnified Party shall
have the right to retain its own counsel, with the fees and expenses to be
paid by the Indemnifying Party, if representation of such Indemnified Party
by the counsel retained by the Indemnifying Party would be inappropriate due
to actual or potential differing interests between such Indemnified Party and
any other party represented by such counsel in such proceeding. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation.
3.9 CONTRIBUTION. If the indemnification provided for in Section
3.8 is for any reason held to be unavailable, or insufficient to hold
harmless an indemnified party with respect to any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claim, damage or liabilities 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 losses, claims, damages or
liabilities as well as any other relevant equitable considerations; provided,
however that each Holder's liability under this Section 3.9 shall not exceed
such Holder's gross proceeds from the offering of securities made in
connection with a registered offering pursuant to this Agreement. The
relative fault of this 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 or alleged
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. For purposes of this Section 3.9 each
person, if any, who controls, within the meaning of the Securities Act, any
Indemnified Party shall have the same rights to contribution as such
Indemnified Party, and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
3.9, will notify such party or parties from whom contribution may be sought,
but the omission so to notify such party or parties from whom contribution
may be sought shall not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have hereunder or
otherwise than under this Section 3.9. 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 be controlling.
3.10 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register Underlying Common Stock granted to the Holders may only
be assigned to a transferee in
12
connection with the transfer or assignment by a Purchaser or Holder of Series
A Preferred Stock, Series B Preferred Stock, warrants initially to purchase
up to an aggregate of 465,584 shares of Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or
Underlying Common Stock.
3.11 INFORMATION BY HOLDER. The Holder or Holders of Underlying
Common Stock included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration referred to in this Agreement.
3.12 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Securities and Exchange
Commission which may at any time permit the sale of the Underlying Common
Stock to the public without registration, after such time as a public market
exists for the Common Stock of the Company, the Company agrees to:
(a) PUBLIC INFORMATION. Make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times after the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public and to use its best efforts to cause its
Common Stock to be quoted in the National Association of Securities Dealers,
Inc.'s electronic interdealer quotation system known as Nasdaq.
(b) FILINGS. File with the Securities and Exchange
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and Exchange Act (at any time after it has
become subject to such reporting requirements).
(c) EVIDENCE OF COMPLIANCE. So long as a Holder owns any
Underlying Common Stock to furnish to the Holder forthwith upon request (i) 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 effective
date of the first registration statement filed by the Company for an offering
of its securities to the general public) and of the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such
other reports and documents of the Company as a Holder may reasonably request
in availing itself of any rule or regulation of the Commission allowing a
Holder to sell any such securities without registration.
(d) OTHER ACTION. The Company, at its expense, will also
take such other action necessary or desirable to permit the Holders to sell
the Underlying Common Stock pursuant to the requirements of Rule 144 and all
applicable securities laws of such states as the Holders desiring to sell the
Underlying Common Stock shall request.
3.13 OTHER REGISTRATION RIGHTS. The Company will not grant to any
existing or future purchaser of its securities any rights to require the
Company to register such securities under the Securities Act that are more
favorable than those provided for herein and will not grant any registration
rights that diminish or adversely affect the registration rights of Holders
hereunder or that could result in a reduction in the amount of any securities
of the Holders that are
13
included in any registration if the managing underwriter in any offering
determined that marketing factors required the limitation of the number of
shares of Common Stock or other securities to be included in the offering,
provided that the foregoing shall not prohibit the Company from granting
future purchasers of securities the right to participate with the Holders on
a pro rata basis in the exercise of "piggyback" registration rights.
3.14 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that
such Holder shall not sell or otherwise transfer or dispose of any Common
Stock (or other securities) of the Company held by such Holder (other than
those included in the registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities) of
the Company not to exceed one hundred eighty (180) days following the
effective date of a registration statement of the Company filed under the
Securities Act, provided that:
(i) such agreement shall apply only to the Company's
Public Offering; and
(ii) all officers and directors of the Company and enter
into similar agreements.
Each Holder agrees to execute and deliver such other agreements as may
be reasonably requested by the Company or the underwriter which are
consistent with the foregoing or which are necessary to give further effect
thereto. The obligations described in this Section 3.14 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form
S-8 or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of said
one hundred eighty (180) day period.
3.15 RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or
any portion of the Preferred Stock or Underlying Common Stock unless and
until:
(i) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound
by the terms of this Agreement, (B) such Holder shall have notified the
Company of its intention to effect such transfer, indicating the
circumstances of the proposed transfer and, if reasonably requested by the
Company, furnishes the Company with an opinion of such Holder's counsel, in
form and substance reasonably satisfactory to counsel for the Company, to the
effect that the proposed transfer may be made without registration under the
Securities Act or qualification under any applicable state securities laws.
The Company will promptly notify the Holder if the opinion of counsel
furnished to the Company is reasonably satisfactory to counsel for the
Company. Unless the Company notifies the Holder within ten (10) days after
the Holder furnishes it with
14
such opinion that such opinion is not reasonably satisfactory to counsel for
the Company, the Holder may proceed to effect the transfer. Notwithstanding
the foregoing provisions, no such registration statement or opinion of
counsel will be necessary for a distribution without consideration by a
Holder that is a partnership, to a partner of such partnership or a retired
partner of such partnership who retires after the date hereof, or to the
estate of any such partner or retired partner or the transfer by gift, will
or intestate succession of any partner to his spouse or to the siblings,
lineal descendants or ancestors of such partner or his or her spouse, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if he or she were the Holder hereunder and, in particular, agrees
to be bound by this Article 3.
ARTICLE 4
VOTING AGREEMENT WITH RESPECT TO ELECTION
OF DIRECTORS; REPURCHASE OPTION; RIGHT OF FIRST
REFUSAL AND CO-SALE AGREEMENT
4.1 VOTING AGREEMENT WITH RESPECT TO ELECTION OF DIRECTORS. Each
Purchaser agrees to vote all shares of Preferred Stock and Purchaser Common
then held by it, Dullien agrees to vote all shares of Shareholder Stock,
Xxxxxxx agrees to vote all shares of Xxxxxxx Stock and Xxxxxx agrees to vote
all shares of Xxxxxx Stock, as follows:
(a) NUMBER OF DIRECTORS. Against any proposal presented to
the stockholders for amendment of either the Amended and Restated Certificate
of Incorporation or the Bylaws of the Company to change the number of
authorized directors of the Company from seven unless a vacancy on the Board
of Directors has not been filled within a reasonable period of time, in which
event the number of authorized directors shall be reduced to equal the number
of persons actively serving as directors, subject to future increase upon the
filling of such vacancy.
(b) DESIGNATION OF MEMBERS. At any stockholder vote for the
election of directors for:
(i) one member (the "Series A Nominee") nominated by the
holders of a majority of the outstanding Series A Preferred Stock (calculated
without counting the shares of Series A Preferred Stock held by Columbine
Venture Fund II, L.P. and its affiliates) ("CVF") (initially to be Xxxxx
Xxxxxxx);
(ii) one member (the "Series B Nominee") nominated by the
holders of a majority of the outstanding Series B Preferred (calculated
without counting the shares of Series B Preferred held by CVF and its
affiliates) (initially to be Xxxxxxx Xxxxxx);
(iii) one member nominated by CVF (initially to be Xxxxxxx
Xxxxxx); and
(iv) one member (the "Series E Nominee") nominated by the
holders of a majority of the outstanding Series E Preferred (calculated
without counting the shares of Series E Preferred held by Existing Holders)
(initially to be Xxxxxx X. Xxxxxxxxx); and
15
(v) two members (if a six person board is constituted), three
members (if a seven person board is constituted) or four members (if a eight
person board is constituted) nominated by a majority of the Company's
outstanding Preferred Stock (on an as-converted basis) and Common Stock, all
voting together as a single class, one of which nominees shall be the Chief
Executive Officer (initially to be Xxxxx Xxxxxx, Xxxxxx Xxxxxxx and Xxxxxxx X.
Xxxxxxx).
(c) REMOVAL OF DIRECTORS. At any stockholder vote with respect to
the removal of directors, to vote as directed by the person(s) which designated
the director proposed to be removed.
(d) VACANCY. In the event that a vacancy on the Board of Directors
occurs, at the written request of the person(s) entitled by this Agreement to
designate a director to fill the vacancy, the Stockholders, CIF, Dullien,
Xxxxxxx and Xxxxxx agree to join in calling a special meeting of stockholders
for the purpose of filling the vacancy, and to vote at such meeting (either in
person or by proxy) as directed in writing by the person(s) entitled by this
Agreement to designate the director to fill such vacancy.
(e) INSTRUCTIONS TO BE IN WRITING. At least one day prior to any
vote for:
(i) the election of directors, the party or parties entitled to
designate each director's position shall notify the other parties to this
Agreement in writing of the name of the person designated by it or them to fill
each such position. If any party fails to designate directors as set forth in
this Section, the parties to this Agreement shall vote for the person last
designated by such party, unless such director declines to serve for an
additional term, has resigned or has been removed from office.
(ii) the removal of a director, the party or parties which
designated the director who is proposed to be removed shall give the other
parties written voting instructions.
(f) AFFIRMATIVE OBLIGATION TO VOTE. Each party to this Agreement
shall have an affirmative obligation to vote, either in person or by proxy, in
accordance with the terms of this Agreement at any vote taken of the
stockholders for the election or removal of directors, and to participate in any
written consent for the election of directors.
(g) EXPENSES OF REPRESENTATIVE DIRECTORS. The Company will reimburse
the non-employee directors for their reasonable expenses incurred in connection
with their attendance at board meetings.
(h) MEETINGS. The Board of Directors will meet regularly at least
every other month.
4.2 RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT.
(a) OFFER TO PURCHASE. During such times as a transfer of the
Shareholder Stock is not restricted under the provisions of Section 4.3, Dullien
may sell or transfer for cash consideration the Shareholder Stock or such
portion thereof that is allocated to her under the
16.
provisions of subsection 4.2(c), provided that Dullien first complies with the
provisions of this Section 4.2. The provisions of this Section 4.2 shall
supersede any right of first refusal that may be contained in the Bylaws of the
Company after the date hereof. Dullien shall first obtain an unconditional, bona
fide written offer ("Offer") from the contemplated purchaser, setting forth in
reasonably precise details the terms and conditions of purchase or transfer,
including the number of shares of Shareholder Stock, purchase price per share
and terms of payment, and transmit a copy of the Offer to each of the Existing
Holders. Upon request of any of the Existing Holders, Dullien shall promptly
furnish such information as may be reasonably requested in order to establish
that the Offer is bona fide.
(b) RIGHT OF FIRST REFUSAL. The receipt of the Offer by the Existing
Holders shall give the Existing Holders an option to purchase all of the stock
covered by the Offer ("Offered Stock") at the same price and upon the equivalent
terms and conditions as set forth in the Offer. Within 30 days after the receipt
of the Offer, each Existing Holder shall notify Dullien and the Company whether
it exercises its right to purchase the Offered Stock and the maximum number of
shares it agrees to purchase. Unless the Existing Holders oversubscribe for the
Offered Stock, each Existing Holder shall purchase the maximum number of shares
specified in its notice. In the event the Existing Holders oversubscribe for the
Offered Stock, each Existing Holder shall be entitled to purchase a fraction of
the Offered Stock, the numerator of which is the number of shares of Purchaser
Common then held by such Holder and the denominator of which is the number of
shares of Purchaser Common then held by all Existing Holders exercising the
right of purchase assuming all Preferred Stock has been converted into Common
Stock at the then current conversion ratio, but excluding Public Shares;
provided that no Holder shall be allocated more of the Offered Stock than the
maximum amount it indicated it was willing to purchase in its notice, and any
Offered Stock which would otherwise be allocated to it, will be allocated among
the other Existing Holders in accordance with this sentence. Upon expiration of
the aforesaid 30-day period, the Company shall promptly advise each Existing
Holder which exercises the right of purchase of the Offered Stock allocated to
it in accordance with the aforesaid procedure. Nothing contained herein shall
prevent any two or more Existing Holders from agreeing on an alternative
allotment among themselves at any time prior to purchase and so advising Dullien
and the Company, provided that such agreeing Existing Holders as a group
purchase all of the stock that was allocated to all of the agreeing Existing
Holders under this Section. If upon the expiration of the 30-day period after
receipt of the Offer by the Existing Holders, the Existing Holders have not
notified Dullien and the Company that they desire to purchase all of the Offered
Stock upon the terms and conditions set forth in the Offer, then all of the
Offered Stock may thereafter be sold by Dullien upon the terms and conditions
set forth in the Offer, provided that the Existing Holders who elect to
participate in the sale may do so under the provisions of subsection (c) and
provided further that if Dullien and any Existing Holders participating under
subsection (c) do not consummate the sale of the Offered Stock within 120 days
after expiration of the 30-day period described above, such stock may not be
sold unless the provisions of this Section are complied with again in connection
with such sale. Payment for the shares of Offered Stock purchased pursuant to
this subsection (b) shall be made to Dullien at the principal office of the
Company against delivery of duly endorsed certificates representing the Offered
Stock. Payment shall be made by check in an amount based on the per share price
stipulated in the Offer. Payment shall be made by a Holder within ten days after
delivery of the Company's allocation notice, unless the Offer provided for
extended payment terms in which event payment shall be made as comparable as
17.
possible to the terms set forth in the Offer. The foregoing provisions shall not
prevent a Holder and Dullien from agreeing on alternative terms of payment.
(c) CO-SALE AGREEMENT. Within 30 days after receipt of the Offer
delivered under subsection (a) each Existing Holder shall also notify Dullien
and the Company (which notice may be included in the notice under subsection
(b)) whether it exercises its right of co-sale under the provisions of this
subsection (c) in the event all of the Offered Stock is not purchased by the
Existing Holders pursuant to the right of first refusal under subsection (b). If
all of the Offered Stock is not purchased by the Existing Holders pursuant to
the right of first refusal under the provisions of subsection (b), then Dullien
and the Existing Holders who have so exercised their right of co-sale shall be
entitled to participate in the proposed sale or transfer pro rata based on the
number of shares of Shareholder Stock and Purchaser Common (assuming all
Preferred Stock has been converted into Common Stock at the then current
conversion ratio, but excluding Public Shares) held by Dullien and each Existing
Holder who exercised the right of co-sale but only to the extent a Holder owns,
or can obtain upon conversion, the stock which is the subject of the Offer. Any
Holder who notified the Company during such 30-day period that it elected to
exercise its right of co-sale, shall in the event all of the Offered Stock is
not sold to the Existing Holders pursuant to subsection (b) be obligated to sell
his portion of the Offered Stock in accordance with the terms of the Offer and
Dullien may only sell his portion of the Offered Stock. In the event all of the
Offered Stock is not purchased by the Existing Holders pursuant to subsection
(b) and none of the Existing Holders exercise their right of co-sale pursuant to
this subsection (c), Dullien may consummate the sale in accordance with the
terms of the Offer and upon no more favorable terms, provided that if Dullien
does not consummate the sale of the Offered Stock in accordance with the terms
of the Offer within 120 days after the expiration of the last 30-day period
referred to in subsection (b), such stock may not be sold unless the provisions
of this Section 4.2 are complied with again in connection with such sale.
4.3 RESTRICTIONS ON TRANSFER.
(a) Each holder of Founder Stock agrees that until termination of
this Agreement or such earlier date upon which all Purchaser Common has been
sold to the public, if the Company or the managing underwriter of any public
offering of securities of the Company requests, the Founder Stock will not be
offered or sold to the public in accordance with Rule 144 (promulgated under the
Securities Act) or otherwise during the time that any of the Purchasers (or
other Holders) may be offering securities to the public pursuant to registration
rights granted to them under the Amended Investors' Rights Agreement, or the
Company may be offering securities to the public pursuant to a Registration
Statement, and in each case for a period of at least 180 days following the
closing of the offering.
(b) Whenever the restrictions contained in subsection (a) do not
apply, Dullien may sell or transfer for cash consideration the Shareholder Stock
free from the provisions of this Agreement in accordance with Section 4.2;
provided that the shares she is permitted to sell may be reduced under the
provisions of Section 4.2.
(c) The Company shall not (i) transfer on its books any shares of the
Founder Stock which shall have been sold or transferred in violation of any of
the provisions set forth
18.
in this Agreement, or (ii) treat as owner of such shares or accord the right to
vote as such owner or pay dividends to any purchaser, transferee or pledgee to
whom any such shares have been so sold, transferred, pledged or encumbered.
4.4 NO ADVERSE AMENDMENTS. Until the termination of this Agreement or
unless specifically contemplated by this Agreement, the Purchasers and the
Founders agree to vote all shares of Preferred Stock, Purchaser Common and
Founder Stock held by each of them, respectively, against any proposed amendment
of the Amended and Restated Certificate of Incorporation or the Bylaws of the
Company which would adversely affect the rights of the Stockholders under this
Agreement including, but not limited to, amendments affecting (a) quorum and
voting requirements at meetings of stockholders, (b) the identity of persons who
may call a special meeting of stockholders, (c) the method by which stockholders
may take action without a meeting, (d) election and removal of directors, (e)
the number of directors, and (f) notices to stockholders and to the
Stockholders. The Stockholders shall be entitled to a temporary restraining
order, injunctive relief, damages and attorneys' fees incurred by them in any
litigation relating to any amendment or proposed amendment violating the
provisions of this paragraph, it being agreed that the Stockholders would have
no adequate remedy at law in such event.
4.5 TERM OF AGREEMENT. Article IV of this Agreement shall terminate and
be of no further force and effect upon the occurrence of any of the following
events:
(a) the determination to terminate this Agreement or any provision of
this Agreement by the Holders of at least 65% of the total number of shares of
Purchaser Common (assuming conversion of the Preferred Stock into Common Stock
at the conversion rate then in effect, but excluding Public Shares), evidenced
by written notice given collectively by such persons to the other parties
hereto; or
(b) August 15, 2006.
In addition, Sections 4.1, 4.2 and 4.4 shall terminate upon a Public
Offering or a Sale of the Company and Section 4.1 will terminate if all Holders
as a group do not hold an aggregate of at least 679,987 shares of Purchaser
Common (assuming conversion of the Preferred Stock at the then current
conversion rate, but excluding Public Shares), as adjusted for stock dividends,
stock splits, combinations of shares and recapitalizations.
Termination of this Agreement shall not affect any rights or obligations
accruing prior thereto.
4.6 LEGEND ON STOCK CERTIFICATES.
(a) The certificates representing shares of Founder Stock and Xxxxxx
Stock issued to or otherwise held by any Founder or Xxxxxx or their transferees
(including certificates issued prior to the date hereof) shall have a legend in
substantially the following form marked thereon:
19.
"THE VOTING AND TRANSFER OF THE SHARES REPRESENTED HEREBY ARE SUBJECT
TO THE TERMS OF AN INVESTORS' RIGHTS AGREEMENT DATED AUGUST 28, 1997,
AS SUCH AGREEMENT MAY BE AMENDED OR RESTATED FROM TIME TO TIME, A COPY
OF WHICH MAY BE EXAMINED AT THE PRINCIPAL OFFICE OF THE CORPORATION."
(b) The certificates representing shares of Preferred Stock and
Purchaser Common (except Public Shares) issued to or otherwise held by the
Stockholders or their respective transferees except transferees who purchase
such shares in a public offering shall have a legend in substantially the
following form marked thereon:
"THE VOTING OF THESE SHARES IS SUBJECT TO THE TERMS OF AN INVESTORS'
RIGHTS AGREEMENT DATED AUGUST 28, 1997, AS SUCH AGREEMENT MAY BE
AMENDED OR RESTATED FROM TIME TO TIME, A COPY OF WHICH MAY BE EXAMINED
AT THE PRINCIPAL OFFICE OF THE CORPORATION."
4.7 COMPANY OBLIGATIONS. The Company shall assure compliance with the
provisions of Section 4.7. The parties agree that no person shall acquire any
shares of stock from any Stockholder, Founder or any subsequent holder of
Founder Stock, Preferred Stock or Purchaser Common (except Public Shares and
except acquisitions pursuant to a public offering registered under the
Securities Act of 1933) unless such party becomes a party to this Agreement by
executing an agreement to be bound by its terms. The Company shall forthwith
notify the other parties hereto of the name and address of any additional party.
ARTICLE 5
MISCELLANEOUS
5.1 TERMINATION OF PRIOR AGREEMENT. This Agreement amends and supersedes
the Amended Investors' Rights Agreement dated August 16, 1996.
5.2 ASSIGNMENT; BINDING EFFECT. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective transferees, heirs,
executors, legal representatives and successors.
5.3 COSTS OF ENFORCEMENT; REMEDIES. If any action or proceeding is
instituted by any party to enforce or construe any provision of this Agreement,
the prevailing party in such action or proceeding shall be entitled to recover
from such other party (or parties) all of its reasonable attorneys' fees and
disbursements. The rights of the parties under this Agreement are unique and,
accordingly, the parties intend that in addition to all other legal or equitable
remedies available, injunctive relief and the remedy of specific performance may
be utilized in the event of the breach or threatened breach of this Agreement.
20.
5.4 ENTIRE AGREEMENT. This Agreement contains the sole and entire
understanding of the parties with respect to its subject matter, and all prior
negotiations, discussions, commitments and understandings heretofore had between
them with respect thereto are merged herein.
5.5 AMENDMENTS AND WAIVERS. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally or in writing, except
that any term of this Agreement may be amended and the observance of any such
term may be waived (either generally or in a particular instance either
retroactively or prospectively) with (but only with) the written consent of the
Company and the Holders of at least 65% of the Underlying Common Stock. No such
waiver shall extend to or affect any obligation not expressly waived.
5.6 COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each of which shall be deemed to be an original and which,
together, shall constitute one and the same instrument.
5.7 GOVERNING LAW. The validity, legality, enforceability and
interpretation of this Agreement shall be governed by the laws of the State of
Delaware, without giving effect to principles of conflicts of laws.
5.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified; (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; (c) two
(2) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to (i) to any initial
Holder at its address as set forth in Exhibit B hereto (ii) to any subsequent
Holder at its address which it gives in the manner herein specified to the other
parties to this Agreement and (iii) to the Company, at its address set forth
below:
BIEX INC.
0000 XXXXXX XXXX, XXXXX X
XXXXXX, XX 00000
ATTENTION: XXXXX X. XXXXXX, PRESIDENT
FACSIMILE: (000) 000-0000
WITH A COPY TO:
XXXXXX GODWARD LLP
XXX XXXXXXXX XXXXX, 00XX XXXXX
XXX XXXXXXXXX, XX 00000-0000
ATTENTION: XXXXXX X. XXXXX
FACSIMILE: (000) 000-0000
or such other address as any party may designate to the other parties hereto in
accordance with the aforesaid procedure.
21.
ARTICLE 6
DEFINITIONS
6.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Xxxxxx Stock" shall mean all shares of Common Stock and other
equity securities now held or hereafter acquired by Xxxxx Xxxxxx.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder.
(c) "Existing Holder" shall mean the record owner of (i) shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, (ii) the shares of Common Stock issuable upon
conversion of such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock or (iii) shares of Common Stock
held by a Series A Holder, Series B Holder, Series C Holder, Series D Holder or
CIF on the date of this Agreement, other than Public Shares.
(d) "Five Percent Holder" or "5% Holder" shall mean each Stockholder
and CIF, and each Holder of at least 5% of the number of shares of Purchaser
Common (assuming conversion of the Preferred Stock into Common Stock at the
conversion rate then in effect, but excluding Public Shares, subject to
proportional adjustment for stock splits, stock dividends, and combinations of
shares). In determining 5% Holders, shares of Purchaser Common held by any
affiliate or general partners of a Holder shall be considered to be held by such
Holder.
(e) "Xxxxxxx Stock" shall mean all shares of Common Stock and other
equity securities now held or hereafter acquired by Xxxxxxx X. Xxxxxxx or a
trust for the benefit of Xxxxxxx X. Xxxxxxx.
(f) "Founder Stock" shall mean all shares of Xxxxxxx Stock and
Shareholder Stock.
(g) "Holder" shall mean (i) the record owner of shares of Preferred
Stock, the Common Stock issuable upon conversion of such Preferred Stock, or
shares of Purchaser Common, other than Public Shares, or (ii) for purposes of
Article 3 only, shall mean any record owner of Underlying Common Stock but only
if such record owner is a Purchaser or a transferee of registration rights as
permitted under Section 3.10, and shall include a registered owner of all or any
portion of the Preferred Stock to the extent of the shares of Common Stock
remaining issuable upon conversion thereof.
(h) "Initiating Holders" shall mean Holders of at least sixty-five
percent (65%) of the Underlying Common Stock.
22.
(i) "Preferred Stock" shall mean the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock and the Series E Preferred Stock.
(j) "Public Offering" shall mean the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act.
(k) "Public Shares" shall mean shares of Common Stock sold by a
Holder in an offering registered under the Securities Act or eligible for sale
by a Holder under Rule 144 thereunder.
(l) "Purchaser" shall mean each of the Series A Holders, the Series B
Holders, the Series C Holders, the Series D Holders the Series E Purchasers and
CIF.
(m) "Purchaser Common" shall mean Preferred Stock, Common Stock
issuable upon conversion of Preferred Stock or Common Stock held by a
Stockholder or CIF on the date of this Agreement as set forth on Exhibit B
hereto.
(n) "Purchasers" shall mean the Series A Holders, the Series B
Holders, the Series C Holders, the Series D Holders, the Series E Purchasers and
CIF, collectively.
(o) "Sale of the Company" shall mean (i) a merger or consolidation or
any other corporate reorganization or business combination in each case in which
fifty percent (50%) or more of the Company's outstanding voting stock (or the
stock of the surviving entity in the event of a transaction in which the Company
does not survive) is transferred from the then present holders to different
holders (not including an issuance by the Company of stock to raise investment
funds) in a single transaction or series of related transactions; or (ii) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company.
(p) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder.
(q) "Shareholder Stock" shall mean all shares of Common Stock and
other equity securities now held or hereafter acquired by Xxxxxx Xxxxxxx.
(r) "Underlying Common Stock" shall mean (i) the shares of Common
Stock held by a Purchaser on the date of this Agreement; (ii) shares of Common
Stock issued upon conversion of the Preferred Stock; and (iii) the shares of
Common Stock remaining issuable upon conversion of the outstanding Preferred
Stock, (iv) together with all shares of Common Stock and other securities issued
or issuable in respect of the Common Stock referred to in clauses (i), (ii) and
(iii) by reason of stock splits, stock dividends, combinations, mergers,
exchanges or other reclassifications or recapitalizations provided that the term
"Underlying Common Stock" shall exclude Public Shares.
23.
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
-------------------------------------------
[Print Name of Entity]
By:
---------------------------------------
[Signature]
-------------------------------------------
[Name of Signatory]
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Columbine Venture Fund II, L.P.
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
[Signature]
Columbine Venture Fund II, L.P. by
Columbine Venture Mgt II, its general
partner, by Xxxxxxx X. Xxxxxx, its
general partner
-------------------------------------------
[Name of Signatory]
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Technology Funding Partners III, L.P.
By Technology Funding Inc.,
Managing General Partner
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Signature)
Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Print Name)
General Partner
-------------------------------------------
(Title, if applicable)
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Technology Funding Venture Partners IV,
an Aggressive Growth Fund, L.P.
By Technology Funding Inc., Managing
General Partner
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Signature)
Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Print Name)
General Partner
-------------------------------------------
(Title, if applicable)
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Technology Funding Venture Partners V,
an Aggressive Growth Fund, L.P.
By Technology Funding Inc.,
Managing General Partner
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Signature)
Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Print Name)
General Partner
-------------------------------------------
(Title, if applicable)
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Technology Funding Medical Partners I, L.P.
By Technology Funding Inc.,
Managing General Partner
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Signature)
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
(Print Name)
General Partner
-------------------------------------------
(Title, if applicable)
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
APA Excelsior III L.P.
By: APA Excelsior III Partners,
General Partner
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
[Signature]
Xxxxx Xxxxxxx
-------------------------------------------
[Name of Signatory]
General Partner
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Xxxxxx & Co. (Jersey) Ltd.,
Custodian for APA Excelsior III/
Offshore, L.P.
-------------------------------------------
[Print Name of Entity]
By: APA Excelsior III Partners,
General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
[Signature]
Xxxxx Xxxxxxx
-------------------------------------------
[Name of Signatory]
General Partner
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Pathfinder Venture Capital Fund III,
A Limited Partnership
-------------------------------------------
[Print Name of Entity]
By: Pathfinder Partners III, A Limited
Partnership
Its General Partner
By: /s/ Xxxx Xxxxxxx
---------------------------------------
[Signature]
Xxxx Xxxxxxx
-------------------------------------------
[Name of Signatory]
a General Partner
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Capstone Ventures, A Delaware
Limited Partnership
-------------------------------------------
[Print Name of Entity]
By: Capstone Management LLC, Its General
Partner
By: /s/ Xxxx Xxxxxxx
---------------------------------------
[Signature]
Xxxx Xxxxxxx
-------------------------------------------
[Name of Signatory]
Managing Member
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Hickory Capital Corporation
-------------------------------------------
[Print Name of Entity]
By: /s/ Monro X. Xxxxxx, III
---------------------------------------
[Signature]
Monro X. Xxxxxx, III
-------------------------------------------
[Name of Signatory]
Vice President
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Xxxxx Xxxxxx California SBIC, L.P.
A Delaware limited partnership
By: Xxxxx Xxxxxx California SBIC General
Partner, L.P.
Its general partner
By: Xxxxx Xxxxxx Management SBIC, Inc.
Its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Bayview Investors, Ltd.
-------------------------------------------
[Print Name of Entity]
By: /s/ [Illegible]
---------------------------------------
[Signature]
-------------------------------------------
[Name of Signatory]
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Clariden Bank
-------------------------------------------
[Print Name of Entity]
By: /s/ X. Xxxxx, /s/ X. Xxxxxxxx
---------------------------------------
[Signature]
-------------------------------------------
[Name of Signatory]
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Clarion Capital Corp.
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
[Signature]
Xxxxxx X. Xxxxx
-------------------------------------------
[Name of Signatory]
Chairman, CEO
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Xxxxxx Partners L.P.
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
[Signature]
Xxxx X. Xxxxxx
-------------------------------------------
[Name of Signatory]
General Partner
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
X.X. Xxxx Co., Inc. as Nominee 1997-42
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
[Signature]
Xxxxx X. Xxxxxxxx
-------------------------------------------
[Name of Signatory]
Secretary
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
-------------------------------------------
[Print Name of Entity]
By: /s/
---------------------------------------
[Signature]
-------------------------------------------
[Name of Signatory]
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
XxXxx Investment Group
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxxxxx XxXxx
---------------------------------------
[Signature]
Xxxxxx XxXxx
-------------------------------------------
[Name of Signatory]
General Manager
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
Closefire Ltd
-------------------------------------------
[Print Name of Entity]
By: /s/ Xxx X. Xxxxx
---------------------------------------
[Signature]
Xxx X. Xxxxx for Closefire Ltd
-------------------------------------------
[Name of Signatory]
President
-------------------------------------------
[Title of Signatory]
Xxxxx Capital Management
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
AMENDED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed on the date
hereinabove set forth.
BIEX, INC.
By:
---------------------------------------
Xxxxx Xxxxxx, President
PURCHASERS:
XXXXXXXXX, XXXXXXXX & CO.
By: /s/ Xxxxxx X. Xxxxxx, III
---------------------------------------
[Signature]
Xxxxxx X. Xxxxxx, III
-------------------------------------------
[Name of Signatory]
Managing Director
-------------------------------------------
[Title of Signatory]
AMENDED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
XXXXX X. XXXXXX
AMENDED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
STOCKHOLDERS
Columbine Venture Fund II, L.P.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Technology Funding Partners III, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Technology Funding Venture Partners IV,
An Aggressive Growth Fund, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Technology Funding Venture Partners V,
An Aggressive Growth Fund, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
APA Excelsior III L.P.
c/o Xxxx Xxxxxxxx Associates, Inc.
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Courts & Co. (Jersey) Ltd.,
Custodian for APA Excelsior III/Offshore, L.P.
c/o Xxxx Xxxxxxxx Associates, Inc.
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Capstone Ventures, A Delaware
Limited Partnership
Capstone Management, L.L.C.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxx 000
Pathfinder Venture Capital Fund III,
A Limited Partnership
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Technology Funding Medical Partners I
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
Hickory Capital Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
GC&H Partners
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
GC&H Investments
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Bayview Investors
c/x Xxxxxxxxx Xxxxxxxx & Company
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxx Xxxxxx California SBIC, L.P.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Dr. Xxxxx Xxxxxxxx
c/x Xxxxxxxxxx Capital
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Clariden Bank
Xx. Xxxxxxxx x. 00, 00.x Xxxxx
Xxx Xxxxx, Xxxxxx CEP 00000000
Fax: 00-00-000-0000
X.X. Xxxx & Company
000 Xxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
1.
XxXxx Investment Group-BX
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Clarion Capital Corp.
Ohio Savings Plaza, Suite 510
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxx Partners LP
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Closefire Ltd.
c/o Pogne Capital Management
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xxxxxxxxx, Xxxxxxxx & Co.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
2.
EXHIBIT B
PURCHASER COMMON
STOCKHOLDER NAME NUMBER OF
SHARES OF COMMON
Columbine Venture Fund II, L.P. 450,000
Colorado Incubator Fund 30,000
