EXHIBIT 10.12
VIVID TECHNOLOGIES, INC.
SERIES C AND SERIES D PREFERRED STOCK PURCHASE AGREEMENT
January 25, 1991
TABLE OF CONTENTS
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Section Page
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1. Authorization; Purchase and Sale of Securities........ 1
1.01 Authorization of the Securities................. 1
1.02 Sale of the Securities.......................... 1
1.03 The Closing..................................... 2
1.04 Use of Proceeds................................. 2
2. Representations and Warranties of the Company......... 2
2.01 Organization and Good Standing.................. 2
2.02 Capitalization.................................. 2
2.03 Financial Statements............................ 3
2.04 Absence of Changes.............................. 3
2.05 Compliance with Other Instruments............... 4
2.06 Authorization................................... 4
2.07 Finders......................................... 4
2.08 Taxes........................................... 4
2.09 Litigation...................................... 5
2.10 Properties...................................... 5
2.11 Compliance with Law............................. 5
2.12 Subsidiaries, Joint Ventures.................... 5
2.13 Contracts and Commitments....................... 5
2.14 Outstanding Indebtedness........................ 5
2.15 Patents, Trademarks............................. 6
2.16 Conflicting Agreements.......................... 6
2.17 Compliance with Securities Act of 1933.......... 6
2.18 Disclosure...................................... 6
2.19 Closing Date.................................... 7
3. Representations and Warranties of Founders............ 7
3.01 Conflicting Agreements.......................... 7
3.02 Conflict of Interests........................... 7
4. Representations and Warranties of Investor............ 8
4.01 Investment Intent............................... 8
4.02 Authorization................................... 8
4.03 Restricted Securities........................... 8
4.04 Finders......................................... 8
Section Page
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5. Covenants of the Company.............................. 9
5.01 Compliance with Law............................. 9
5.02 Accounting System............................... 9
5.03 Board of Directors.............................. 9
(a) Representatives of Preferred
Shareholders................................ 9
(b) Voting Agreement............................ 10
(c) Expense of Directors........................ 10
(d) Board Approval Requirements................. 10
5.04 Inspection...................................... 10
5.05 Financial Statements and Other
Information..................................... 11
5.06 Key Man and Other Insurance..................... 12
5.07 Proprietary Information Agreements.............. 12
5.08 Material Changes and Litigation................. 12
5.09 Executive Compensation.......................... 12
5.10 Transactions with Affiliates.................... 13
5.11 Dividends....................................... 13
5.12 Issuance of Stock............................... 13
5.13 Merger; Sale of Assets.......................... 13
6. Conditions to Obligations of Investors at
the Closing......................................... 13
6.01 Representations and Warranties Correct.......... 14
6.02 Performance of Covenants and Agreements......... 14
6.03 Opinion of Counsel to the Company............... 14
6.04 Legal Action.................................... 16
6.05 Filing of Articles of Amendment................. 16
6.06 Shareholders Agreement.......................... 16
6.07 Compliance Certificate.......................... 16
6.08 Proceedings Satisfactory........................ 16
7. Conditions to Obligations of the Company
at the Closing...................................... 16
8. Participation in Future Offerings..................... 17
8.01 Eligible Offerings; Notice...................... 17
8.02 Acceptance...................................... 17
8.03 Percentage Interest............................. 17
8.04 Excluded Offerings.............................. 17
8.05 No Accumulation................................. 18
8.06 Rights Personal................................. 18
8.07 Termination of Rights........................... 18
Section Page
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9. Registration Rights................................... 18
9.01 Certain Definitions............................. 18
9.02 Sale or Transfer of the Shares.................. 19
9.03 Required Registration........................... 20
9.04 Incidental Registrations........................ 20
9.05 Registration Procedures......................... 22
9.06 Allocation of Expenses.......................... 23
9.07 Indemnification................................. 23
9.08 Indemnification with Respect to
Underwritten Offering........................... 24
9.09 Rule 144 Reporting.............................. 25
10. Definitions........................................... 25
11. Miscellaneous Provisions.............................. 26
11.01 1989 Investor Consent and Waiver............... 26
11.02 Construction................................... 26
11.03 Notices........................................ 26
11.04 Assignment..................................... 27
11.05 Succession to Rights........................... 27
11.06 Amendments and Waiver.......................... 27
11.07 Counterparts................................... 28
11.08 Headings....................................... 28
11.09 Expenses....................................... 28
11.10 Confidential Information....................... 28
11.11 Knowledge and Absence of Personal
Liability of Certain Persons................... 28
Exhibits
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List of Investors..................................... Exhibit A
Articles of Amendment................................. Exhibit B
Amended Shareholders Agreement........................ Exhibit C
SERIES C AND SERIES D PREFERRED STOCK PURCHASE AGREEMENT
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This Agreement, made and entered into the 25th day of January, 1991 by and
among VIVID TECHNOLOGIES, INC., a corporation organized and existing under the
laws of the Commonwealth of Massachusetts (the "Company"), and the investors
listed on Exhibit A hereto (the "Investors"), which Investors shall include,
under the circumstances set forth in Section 1.02 below, Massachusetts Capital
Resource Company ("MCRC").
The parties hereto hereby agree as follows:
1. Authorization; Purchase and Sale of Securities.
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1.01 Authorization of the Securities. The Company will on or before the
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Closing Date (as defined in Section 1.04 below) file with the Secretary of the
Commonwealth of Massachusetts Articles of Amendment to the Articles of
Organization of the Company in the form of Exhibit B hereto (the "Articles of
Amendment"), authorizing 2,500,000 additional shares of Common Stock, $.01 par
value, and 313,333 additional shares of Preferred Stock, $.01 par value, of the
Company and establishing and designating the relative rights and preferences of
the Series C Preferred Stock (the "Series C Preferred") and the Series D
Preferred Stock (the "Series D Preferred") of the Company; and the Company will
have authorized the issuance to the Investors, pursuant to this Agreement, of up
to 180,000 shares of Series C Preferred and 133,333 shares of Series D
Preferred.
1.02 Sale of the Securities. Subject to the terms and conditions hereof,
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the Company hereby agrees to sell to each of the Investors, and each of the
Investors agrees to purchase from Company on the Closing Date, the number of
Shares of Series C Preferred and Series D Preferred set forth opposite his or
its name under "Closing Date" on Exhibit A hereto. The obligation of MCRC to
purchase the Shares of Series C Preferred and Series D Preferred set forth
opposite its name on Exhibit A hereto shall be conditioned upon and subject to
the approval of such purchase by the Investment Committee of MCRC on or before
February 28, 1991; and upon such approval, MCRC shall, on or before March 7,
1991, pay to the Company the purchase price for such Shares. If MCRC shall
notify the Company that the purchase of the Shares has not been approved by
MCRC's Investment Committee or MCRC shall, in any event, fail to pay for the
Shares on or before March 7, 1991, then the Company shall promptly notify each
of the other Investors, and each such other Investor hereby agrees to purchase
the number of additional Shares of Series C Preferred and Series D Preferred set
forth opposite his or its name on Exhibit A-1 hereto, payment for such Shares to
be made within ten (10) business days of such notice. Thereafter, for all
purposes under this Agreement, the Investors and the number of Shares purchased
by each Investor shall be as set forth on Exhibit A-2 hereto. The purchase
price for each share of Series C Preferred sold pursuant to this Agreement will
be $10.00. The purchase price
for each share of Series D Preferred sold pursuant to this Agreement will be
$1.50.
1.03 The Closing. The closing of the transactions contemplated by this
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Agreement (herein referred to as the "Closing") shall take place at the offices
of Brown, Rudnick, Freed & Gesmer, Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
at 10:00 A.M., on January 25, 1991, or at such other place or on such other date
or time as shall be mutually agreed to by the Company and counsel to the
Investors (hereinafter referred to as the "Closing Date"). At the Closing, the
Company will deliver to each Investor who is purchasing Shares at the Closing
certificates, in such denominations and registered in such name as each Investor
may designate by notice to the Company, representing the shares of Series C
Preferred and Series D Preferred to be purchased on the Closing Date by each
Investor from the Company, against payment of the purchase price for such Shares
in cash or by certified or bank cashier's check payable to the order of the
Company.
1.04 Use of Proceeds. Not less than 95% of the proceeds to the Company
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from the sale of the Shares shall be used by the Company for the development,
manufacturing and marketing of products described in the Company's Business Plan
dated December 1990 (the "Business Plan").
2. Representations and Warranties of the Company.
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The Company hereby represents and warrants to each Investor as follows:
2.01 Organization and Good Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts. The Company has all requisite corporate power
and authority, and holds all licenses, permits and other required authorizations
from governmental authorities, necessary to conduct its business as now
conducted and the business contemplated by this Agreement, and is duly qualified
and in good standing in each jurisdiction in the United States where the failure
to qualify would have a material adverse effect on its operations or financial
condition. The Company has delivered to counsel to the Preferred shareholder
true, correct and complete copies of the Company's Articles of Organization and
bylaws in effect on the date hereof.
2.02 Capitalization. The Company's authorized capitalization consists of
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5,000,000 shares of Common Stock, $.01 par value, of which 1,505,950 shares are
issued and outstanding and 484,375 shares of Preferred Stock, $.01 par value, of
which 484,375 shares are issued and outstanding. After giving effect to the
transactions contemplated hereby, the authorized capital of the Company will
consist of (i) 797,708 shares of Preferred Stock, $.01 par value, of which (a)
234,375 shares will be designated Series A Preferred Stock and will be
outstanding, (b) 250,000 shares will be designated Series B Preferred Stock and
will be outstanding; (c) 180,000 shares will be designated as Series C Preferred
Stock and will be outstanding; and (d) 133,333 shares will be designated as
Series D Preferred Stock and will be outstanding; and (ii) 7,500,000 shares of
Common Stock, of which 1,505,950 shares will be outstanding. All of the
outstanding shares of the Company's stock have been duly and validly authorized
and issued, and the issuance of the Shares pursuant to the terms of this
Agreement shall be, on the Closing Date, duly and validly authorized, and no
further approval or authority of the shareholders or the directors of the
Company or of any governmental authority or agency will be required by the
Company for the issuance and sale of the Shares as contemplated by this
Agreement. When issued and sold to the Investors, the Shares will be duly and
validly issued, fully paid and non-assessable, and the Articles of Amendment and
the certificates representing the Shares will be duly and validly authorized,
executed and delivered by the Company and will constitute valid and legally
binding obligations in accordance with their respective terms. Except for the
1989 Agreement, the holders of the capital stock of the Company are not entitled
to any preemptive rights with respect to the sale of the Shares or any other
equity securities of the Company and are not entitled to any registration
rights, with respect to the capital stock held by them, for registration under
the Securities Act. Except for options to purchase 386,300 shares under the
Company's 1989 Combination Stock Option Plan, there are no outstanding options,
warrants or other rights or commitments, written or oral, to purchase or
otherwise acquire any authorized but unissued shares of the capital stock of the
Company, or any security directly or indirectly convertible into or exchangeable
for shares of the capital stock of the Company, or any restricted stock
arrangements.
2.03 Financial Statements. The Company has furnished to counsel for the
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Investors balance sheets dated as of September 30, 1989 and 1990 and December
31, 1990, and statements of operations and of changes in financial condition for
the period from the Company's incorporation (May 11, 1989) through September 30,
1989, from October 1, 1989 to September 30, 1990, and from October 1, 1990 to
December 31, 1990) (which balance sheet and statements are hereinafter referred
to as the "Financial Statements"). The Financial Statements were prepared in
accordance with generally accepted accounting principles, are correct and
complete in all material respects and fairly present the financial condition and
operations of the Company at the date thereof and for the period covered
thereby.
2.04 Absence of Changes. Subsequent to the date of the December 31, 1990
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balance sheet contained in the Financial Statements (the "Statement Date"),
there has not been any material adverse change in the condition (financial or
otherwise), net worth or results of operations of the Company, nor, to the
knowledge of the Company, has there occurred any event which would require
disclosure in the Company's financial statements in order that they may
correctly, completely and fairly present its xxxxx-
cial condition in accordance with generally accepted accounting principles.
2.05 Compliance with Other Instruments. The Company is not in default in
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the performance of any material obligation, agreement or condition contained in
any bond or debenture or any other evidence of indebtedness or any indenture or
loan agreement of the Company which default affords to any Person the
unconditional right to accelerate any material indebtedness or terminate any
material right or agreement of the Company, and the Company is not in violation
of its Articles of Organization or bylaws. Neither the sale of the Shares, nor
the execution and delivery of this Agreement, nor the fulfillment of the terms
herein set forth and the consummation of the transactions contemplated hereby,
will (i) conflict with or constitute a breach of, default under or violation of
the Articles of Organization or bylaws of the Company, any agreement, indenture,
mortgage, deed of trust or other material instrument or undertaking by which the
Company is bound or to which it or any of its properties are subject, or, to the
best knowledge of the Company, a violation of any law, administrative
regulation, or court decree binding upon the Company, or (ii) result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Company.
2.06 Authorization. The Company has the corporate power and authority to
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enter into this Agreement and to perform all of its obligations hereunder. The
execution, delivery and performance of this Agreement by the Company have been
duly authorized by all necessary corporate action, and this Agreement
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditor's rights. No consent, approval,
authorization or order of any court or governmental agency or board is required
to consummate the same, except for acceptance for filing by the Secretary of the
Commonwealth of Massachusetts of the Articles of Amendment.
2.07 Finders. No person is entitled, directly or indirectly, to
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compensation from the Company by reason of any contract or understanding or
contact with the Company, as a finder or broker in connection with the sale and
purchase of the Shares contemplated by this Agreement.
2.08 Taxes. The Company has filed all necessary federal and state
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property, income and franchise tax returns and has paid all taxes shown as due
thereon or otherwise owed by it to any taxing authority except those contested
in good faith and for which appropriate amounts have been reserved in accordance
with generally accepted principles; and there is no tax deficiency which has
been, or to the knowledge of the Company might be, asserted against the Company
which would materially affect the business or operations of the Company.
2.09 Litigation. There is not now pending or, to the knowledge of the
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Company, threatened, any litigation, action, suit or proceeding to which the
Company is or will be a party before or by any court or governmental agency or
body, which might result in any material adverse change in the condition
(financial or otherwise), business or prospects of the Company, or which might
materially and adversely affect the property or assets of the Company; nor, to
the knowledge of the Company is there any basis for any of the foregoing; and no
labor disturbance by the employees of the Company exists or is imminent which
might be expected materially to affect the conduct of the business, operations,
financial condition or income of the Company.
2.10 Properties. The Company has good and marketable title to all of its
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real and tangible personal properties and assets shown on the balance sheet
included in the Financial Statements, free and clear of all liens, charges, and
encumbrances except as set forth on said balance sheet.
2.11 Compliance with Law. To the knowledge of the Company, the Company has
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complied in all material respects with all applicable statutes and regulations
of the United States and of all states, municipalities and agencies and of all
foreign countries in respect of the conduct of its business.
2.12 Subsidiaries, Joint Ventures. The Company does not have any
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investment or other ownership interest in any other corporation, joint venture,
general partnership, limited partnership or other business entity.
2.13 Contracts and Commitments. The Company is not a party to any written
-------------------------
or oral contract or agreement which is materially adverse to its present or
proposed business. Except for the Hologic License Agreement and the Hologic
Management Agreement, the Company is not a party to or bound by any agreements
which obligate the Company to pay (in the case of each agreement) in excess of
$25,000, or (in the aggregate) in excess of $50,000, or which are otherwise
material to the conduct and operation of its business (as conducted and proposed
to be conducted) and its properties, including without limitation all employment
and consulting agreements and employee benefit plans and arrangements to which
the Company is a party or by which it is bound. All of such agreements and
contracts are valid, binding and in full force and effect, and true and complete
copies thereof have been delivered to counsel to the Investors.
2.14 Outstanding Indebtedness. The Company has no indebtedness for
------------------------
borrowed money which the Company had directly or indirectly created, incurred,
assumed or guaranteed, or with respect to which the Company has otherwise become
directly or indirectly liable. The Company has no material liability or
obligation, absolute or contingent, which is not shown or provided for in the
Financial Statements or disclosed in the Exhibits to this Agreement.
2.15 Patents, Trademarks. The License and Technology Agreement dated June
-------------------
22, 1989 between the Company and Hologic, Inc. (the "Hologic License") is in
full force and effect and the Company is in compliance therewith. To the best
knowledge of the Company, the Hologic License provides to the Company all
intellectual property rights held by any third party reasonably necessary to
enable the company to develop the product described in the Business Plan. In
addition, the Company owns or possesses, or can obtain by payment of royalties
in amounts which, in the aggregate, do not materially adversely affect the
proposed business and the prospects of the Company, all of the patents,
trademarks, service marks, trade names, copyrights and licenses, or rights to
the foregoing, necessary for the conduct of the Company's business as proposed
to be conducted. To the best of the Company's knowledge, and subject to the
Hologic License, the business proposed by the Company will not cause the Company
to infringe rights of others under patents, trademarks, service marks, trade
names, copyrights and licenses.
2.16 Conflicting Agreements. To the best of the Company's knowledge,
----------------------
except for the Hologic Management Agreement, no officer, director, key employee,
prospective key employee or principal shareholder of the Company is a party to
or bound by any agreement, contract or commitment, or subject to any
restrictions in connection with any previous or current employment of any such
person, which materially and adversely affect the proposed business or
operations of the Company or such person's ability to perform his duties as an
officer, director or employee or to own stock in the Company.
2.17 Compliance with Securities Act of 1933. Within the past twelve
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months, neither the Company nor any person acting on behalf of the Company has,
directly or indirectly, offered any capital stock, including the Shares or any
part thereof, or any rights, warrants or options to purchase any capital stock
of the Company, for sale to, or solicited any offers to buy any of the same
from, or negotiated with respect to any of the foregoing with, any person other
than the Investors and existing holders of Common Stock and options to purchase
Common Stock.
Neither the Company nor any person acting on behalf of the Company has,
directly or indirectly, taken or will take any action which would subject the
issuance or sale of the Shares to the registration requirements of the
Securities Act. All shares of capital stock of the Company heretofore sold and
issued by it were sold and issued in compliance with all applicable Federal and
state securities laws.
2.18 Disclosure. Neither this Agreement, the Business Plan of the Company,
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nor any financial statement, certificate, list, exhibit or other written
statement pertaining to the Company or to any officer, director, key employee or
principal shareholder, made or delivered to the Investors by the Company or by
its officers, directors, shareholders or employees, or the authorized agents
thereof, contains (when read together) any untrue state-
ment of a material fact or omits to state any material fact necessary in order
to make the statements contained therein not misleading in light of the
circumstances under which they were made. There exists no fact or circumstance
not previously disclosed in writing to the Investors which, to the knowledge of
any officer of the Company, materially and adversely affects or will affect (so
far as such persons can now reasonably foresee) the business, properties or
assets, or condition, financial or otherwise, of the Company, both at the
present and as proposed.
2.19 Closing Date. The representations and warranties of the Company
------------
contained in this Agreement and all information contained in any exhibit,
schedule or attachment hereto will be true and correct in all material respects
on the Closing Date as though then made and as though the Closing Date were
substituted for the date of this Agreement throughout this Agreement, except as
affected by the transactions expressly contemplated by this Agreement.
3. Representations and Warranties of Founders. S. Xxxxx Xxxxxxxxxx
------------------------------------------
("Xxxxxxxxxx") and Xxx X. Xxxxx ("Xxxxx") (individually, the "Founder") each
represents and warrants to each Investor as follows:
3.01 Conflicting Agreements. Such Founder is not in violation of any term
----------------------
of any employment contract, patent or other proprietary information disclosure
or assignment agreement or any other contract, agreement, or any judgment,
decree or order of any court or administrative agency relating to or affecting
the right of such Founder to be employed by the Company because of the nature of
the business conducted or proposed to be conducted by the Company or for any
other reason. No such term, judgment, decree, or order conflicts with such
Founder's obligation to use his best efforts to promote the interests of the
Company nor does the execution and delivery of this Agreement, nor the carrying
on of the Company's business as an officer of the Company, conflict with any
such term, judgment, decree or order.
3.02 Conflicts of Interests. Such Founder, the members of such Founder's
----------------------
immediate family and any corporations, partnership or other business entity in
which such Founder and such persons have, in the aggregate, more than a five
percent (5%) equity or income interest are not a party to any transaction,
agreement or understanding to which the Company is also a party and do not have
any interest in any Person with whom the Company does or intends to do business,
other than Hologic.
While employed by the Company, such Founder will devote such time to the
business of the Company as may be appropriate consistent with the terms of the
Hologic Management Agreement and, except for his employment by Hologic, will not
engage in any other business activity, either on a full-time or part-time basis,
as an employee, a consultant or in any other capacity, and whether or not he
receives any compensation therefor; provided, however, that nothing herein shall
prohibit such Founder from
making and managing passive investments, which activities do not, in the
aggregate, materially interfere with such Founder's performance of his duties to
the Company.
4. Representations and Warranties of Investors.
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4.01 Investment Intent. Each Investor hereby represents and warrants to
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the Company that he or it is purchasing or acquiring the Securities for his or
its own account for investment and not with a present view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act.
Each Investor hereby consents to the imposition of a legend substantially
similar to the following on each certificate representing the Securities, and
each Investor agrees that he will abide by the restrictions contained therein:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") and may not be sold, transferred or assigned unless
such shares are registered under the Act or an opinion of
counsel, satisfactory to the corporation, is obtained to the
effect that such sale, transfer or assignment is exempt from
the registration requirements of the Act."
4.02 Authorization. Each Investor has the power and authority to enter
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into this Agreement and to perform all of his or its obligations hereunder, and
no consent, approval, authorization or order of any court or governmental agency
or board is required to consummate the same.
4.03 Restricted Securities. Each Investor is experienced in evaluating and
---------------------
investing in young, high technology companies such as the Company. Each
Investor understands that the Shares and Conversion Stock have not been
registered under the Securities Act by reason of a specific exemption from the
registration provision of the Securities Act which depends upon, among other
things, the bona fide nature of his or its investment intent as expressed
herein. Each Investor acknowledges that the Shares and Conversion Stock when
received, must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
Each Investor has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act, which rule permits limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions, contained therein. Each Investor understands that Rule 144
is not presently available for the resale of his or its Shares.
4.04 Finders. No person is entitled, directly or indirectly, to
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compensation from any Investor by reason of any contract or understanding or
contact with such Investor, as a finder or
broker in connection with the sale and purchase of the Shares contemplated by
this Agreement.
5. Covenants of the Company.
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So long as any Preferred Shareholder is the owner of any securities of the
Company or of any successor entity whose shares are issued in exchange for any
security of the Company, but not after the Company has filed a report with the
Securities and Exchange Commission pursuant to Section 13(a) of the Exchange Act
by reason of the Company having registered its Common Stock pursuant to Section
12(g) or 15(d) of the Exchange Act, the Company agrees that:
5.01 Compliance with Law. It will not knowingly contravene any material
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governmental laws, domestic or foreign, applicable to it, unless their validity
is contested reasonably and in good faith, and it will maintain and cause each
of its Subsidiaries to maintain, in good standing, their respective rights and
qualifications to do business in all United States jurisdictions in which they
may from time to time conduct business and own their respective properties and
where failure to qualify would have a material adverse effect on their
operations or financial condition, to the extent necessary therefor. The
Company will at all times remain a corporation incorporated under the laws of
the United States or of one of the States thereof.
5.02 Accounting System. It will maintain and cause each of its
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Subsidiaries to maintain a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
and will set aside on its books and cause each of its operating Subsidiaries to
set aside on its books all such proper reserves as shall be required under
generally accepted accounted principles consistently applied.
5.03 Board of Directors.
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(a) Representatives of Preferred Shareholders. The Company presently
-----------------------------------------
intends to maintain the authorized number of members of its Board of Directors
at not more than seven (7). The Preferred Shareholders shall have the right to
designate in writing (i) up to three (3) nominees to be included among
management's nominees to be elected as directors of the Company if the
authorized number of directors exceeds five (5), and (ii) up to two (2) nominees
to be so included if the authorized number of directors equals five (5) or less.
Two nominees shall be designees of Burr, Egan, Deleage & Co. and the third
designee, if any, shall be selected by the Preferred Shareholders. The
designees of the Preferred Shareholders shall be subject to approval by the
Company, which approval shall not be unreasonably withheld. The Company hereby
agrees to use its best efforts to cause such representatives to be elected to
the Company's Board of Directors and to be renominated and reelected annually
until the number of shares of capital stock then held by all of the Preferred
Shareholders represents less than five percent (5%) of
the total voting power of the Company. One of the initial designees of Burr,
Egan, Deleage & Co. shall be Xxxxx Xxxxx. The Company shall give notice of each
meeting of the Board of Directors to the Preferred Shareholders, shall permit a
representative of the Preferred Shareholders to attend such meeting as a guest
of the Board of Directors and shall provide to Preferred Shareholders who so
request, copies of minutes of all action taken by the Board of Directors,
whether at meetings or by written consent.
(b) Voting Agreement. The Preferred Shareholders agree to vote the
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shares of voting securities of the Company held or controlled by them, and will
otherwise use their best efforts to elect and maintain in office as a director
of the Company: (i) each of Xxxxxxxxxx and Xxxxx, such agreement to terminate
with respect to each such person when the number of shares of capital stock then
held by such person represents less than five percent (5%) of the total voting
power of the Company or such person is no longer employed by the Company or a
Subsidiary; and (ii) one (1) additional designee of Xxxxxxxxxx and Xxxxx, if the
authorized number of directors is five (5) or less, and two (2) additional
designees of Xxxxxxxxxx and Xxxxx, if the authorized number of directors exceeds
five (5), until the voting agreement under clause (i) with respect to both
Xxxxxxxxxx and Xxxxx has terminated. In any particular election of directors,
the foregoing agreement of the Preferred Shareholders will not apply to any of
the Preferred Shareholders unless Xxxxxxxxxx and Xxxxx first vote in favor of
themselves or each other and their designees the shares of the Company's voting
securities held or controlled by them. In addition, if in any particular
election of directors, the Preferred Shareholders exercise the foregoing right
to designate up to two (or three) persons to be included among management's
nominees, then the foregoing voting agreement of the Preferred Shareholders will
not apply until the Preferred Shareholders have first voted the shares of the
voting securities of the Company held or controlled by the Preferred
Shareholders in favor of such designees to the Board of Directors.
(c) Expenses of Directors. The representatives of the Preferred
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Shareholders who serve as Directors shall be reimbursed by the Company for
reasonable out-of-pocket travel and other expenses, if any, incurred by them in
attending Board of Directors' meetings and in performing their duties as
Directors.
(d) Board Approval Requirement. The minimum number of votes required
--------------------------
for the approval of actions and the adoption of resolutions by the Board of
Directors shall be a majority of the actual number of directors then in office.
5.04 Inspection. It shall permit each holder of Securities, or any
----------
authorized representative thereof, to visit and inspect the properties of the
Company and its Subsidiaries, including their respective corporate and financial
records, and to discuss the business and finances of the Company and its
Subsidiaries with their respective officers during normal business hours
fol-
lowing reasonable notice and as often as may be reasonably requested. Any holder
exercising his or its rights under this Section, and his or its representatives,
shall maintain the confidentiality of all financial, confidential and
proprietary information of the Company and its Subsidiaries acquired by them in
exercising such rights.
5.05 Financial Statements and Other Information. It will deliver to each
------------------------------------------
Preferred Shareholder:
(a) within 90 days after the end of each fiscal year of the Company,
an audited balance sheet of the Company as at the end of such year and audited
statements of operations and of changes in financial condition of the Company
for such year, certified (without qualification as to scope) by certified public
accountants of established national reputation selected by the Company, and
prepared in accordance with generally accepted accounting principles
consistently applied;
(b) within 30 days after then end of each month in each fiscal year of
the Company, an unaudited balance sheet of the Company as at the end of such
month and unaudited statements of operations and of changes in financial
condition of the Company for such month, together with a statement setting forth
a comparison between said actual balance sheet and statements and the projected
monthly balance sheet and statements of operations and financial condition for
such period previously delivered to the Preferred shareholder under clause (c)
hereof;
(c) within 30 days of their review by the Company's Board of
Directors, but not later than the beginning of each fiscal year, projected
balance sheets of the Company as of the end of each fiscal month of said fiscal
year, and projected statements of operations and of changes in financial
condition of the Company, covering the same fiscal periods, all in reasonable
detail, or such other form of projected statements as approved by a majority of
the directors then if office (provided that the cash flow projections for the
first twelve months of operations of the Company contained in the Business Plan
shall be deemed to be the initial projected statements delivered hereunder);
(d) within 30 days of their review by the Company's Board of
Directors, any material revision of projected financial statements provided
under clause (c) above;
(e) with reasonable promptness, such other notices, information and
data with respect to the Company as the Company delivers to the holders of its
Common Stock, and such other information and data as such Preferred Shareholder
may from time to time reasonably request at such Preferred Shareholder's cost.
The foregoing financial statements shall be prepared on a consolidated and
consolidating basis if the Company then has any Subsidiaries; provided that any
consolidating statements required by clause (a) need not be audited. The
financial statements
delivered pursuant to clauses (b) above shall be accompanied by a certificate of
the chief financial officer of the Company stating that such statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the financial condition of the Company
at the date thereof and for the period covered thereby, subject only to
nonrecurring year-end adjustments resulting from an audit of the Company, which
in the aggregate will not be materially adverse.
5.06 Key Man and Other Insurance. The Company will obtain, within ninety
---------------------------
(90) days from the date hereof, policies of term life insurance on the lives of
each of Xxxxxxxxxx and Xxxxx in amounts not less than $1,000,000 each; provided
that at such time as the aggregate amount of Series A Preferred and Series C
Preferred required to be redeemed is less than $2,000,000, the amount of each
policy may be reduced by an amount equal to the Series A and Series C Redemption
Price (as such term is defined in Section 4 of the Articles of Amendment) paid
from time to time to the Series A and Series C Preferred Shareholders. The
Company will maintain workers' compensation insurance and such insurance with
respect to its properties and business, including insurance against loss,
damage, fire, theft, public liability and other risks, of the kinds and in the
amounts which are standard for companies of similar size engaged in the business
in which the Company is engaged and intends to engage.
5.07 Proprietary Information Agreements. It will use its best efforts to
----------------------------------
enter into agreements, in a timely manner, with each of its employees and
consultants, requiring the assignment by them to the Company of all inventions
and discoveries of such employees and consultants during the course of their
employment or in connection with their activities as consultants, as the case
may be, and requiring that such persons maintain in confidence all proprietary
information of the Company and return to the Company, upon termination of
employment or engagement as a consultant, all proprietary information of the
Company then in their possession or under their control.
5.08 Material Changes and Litigation. The Company will promptly notify the
-------------------------------
Preferred Shareholders of any material adverse change in the business,
properties, assets or condition, financial or otherwise, of the Company and of
any litigation or governmental proceeding or investigation pending or, to the
best knowledge of the Company, threatened against the Company, or against any
officer, director, key employee or principal shareholder of the Company
materially affecting or which, if adversely determined, would materially
adversely affect its present or proposed business, properties, or assets taken
as a whole.
5.09 Executive Compensation. Services to the Company rendered by
----------------------
Xxxxxxxxxx and Xxxxx shall be paid for pursuant to the Hologic Management
Agreement, and no compensation shall be paid or accrued directly to Xxxxxxxxxx
or Xxxxx by the Company without the favorable vote of the Directors designated
by Burr, Egan, Deleage & Co.
5.10 Transactions with Affiliates. Except for the Hologic Management
----------------------------
Agreement and the Hologic License Agreement, without a vote by the Board of
Directors at a meeting at which the representatives of Xxxx, Xxxx Deleage & Co.
are present and vote in favor such action (not including in either case,
however, any Director having an interest in the proposed transaction), the
Company shall not engage in any transaction with, nor enter into any contract,
agreement or other arrangement providing for the employment of, furnishing of
services by, rental of real or personal property from, or otherwise requiring
payments to, any 10% shareholder, officer or director of the Company, nor any
"affiliate" or "associate" of such persons (as such terms are defined in the
rules and regulations promulgated under the Securities Act), and in no event
will any such transaction or agreement be on terms which, at the time such
transaction or agreement is approved, are less favorable to the Company than
would be similar transactions or agreements with unrelated third parties.
5.11 Dividends. Without a vote by the Board of Directors at a meeting at
---------
which the representatives of Burr, Egan, Deleage & Co. are present and vote in
favor of such action, it will not declare, set aside or pay any dividend on
(other than a dividend of capital stock of the Company), or declare or make any
distribution (other than liquidating distributions) with respect to, shares of
the capital stock of the Company junior in right of liquidation to the Series A
Preferred or the Series C Preferred.
5.12 Issuances of Stock. The Company has reserved 1,000,000 shares of
------------------
Common Stock for issuance to employees and consultants of the Company pursuant
to stock option or restricted stock arrangements, which vest such shares in
installments contingent on employment with the Company during a specified
period. The Board of Directors of the Company may authorize, from time to time,
the issuance of such shares, on such terms including price, payment and vesting
restrictions as the Directors deem appropriate; provided that a representative
affiliated with Burr, Egan, Deleage & Co. consents to such actions or is present
and votes in favor thereof at a meeting of the Board.
5.13 Merger; Sale of Assets. Without the prior approval in writing or
----------------------
favorable vote at a duly called stockholders' meeting by Preferred Shareholders
holding a majority of the shares of Series A Preferred and Series C Preferred,
there shall be no merger or consolidation of the Company with or into another
entity, in which the Company is not the surviving entity, nor shall there be a
sale of all or substantially all of the assets of the Company to another entity.
6. Conditions to Obligations of Investors at the Closing.
-----------------------------------------------------
The obligations of each Investor under this Agreement at the Closing are
subject to satisfaction of the following conditions at or prior to the Closing,
any of which may be waived by such Investor:
6.01 Representations and Warranties Correct. All of the representations
--------------------------------------
and warranties of the Company contained in this Agreement shall be true and
correct on the Closing Date with the same effect as if made on the Closing Date.
6.02 Performance of Covenants and Agreements. All of the covenants and
---------------------------------------
agreements of the Company contained in this Agreement and required to be
performed on or before the Closing Date shall have been performed.
6.03 Opinion of Counsel to the Company. The Investors shall have received
---------------------------------
an opinion of counsel to the Company, Brown, Rudnick, Freed & Gesmer, addressed
to the Investors, in form and substance reasonably satisfactory to the Investors
and dated the Closing Date, substantially to the following effect:
(a) This Agreement, the Articles of Amendment and the certificates
representing the Shares to be purchased at the Closing have been duly and
validly authorized, executed, and delivered by the Company and constitute valid
and legally binding obligations of the Company enforceable in accordance with
their terms, except as such may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights, and except that no opinion need by expressed
with respect to the availability of equitable remedies or the enforceability of
Section 9.07 or 9.08 hereof (to the extent that the Company agrees to indemnify
directors, officers and controlling persons for liabilities arising under the
Securities Act);
(b) All corporate proceedings required by law or by the provisions of
this Agreement to be taken by the Company at or prior to the Closing in
connection with the transactions contemplated by this Agreement have been duly
and validly taken;
(c) The Company is validly existing and in good standing under the
laws of the Commonwealth of Massachusetts and has all requisite corporate power
and authority to own its properties and conduct its business;
(d) The Company has secured all governmental consents, approvals,
authorizations and, to the best knowledge of such counsel, has obtained such
other consents, approvals and authorizations, and has complied with all similar
requirements prescribed by any law, rule or regulation which must be obtained or
satisfied by the Company and which are necessary for the consummation of the
transactions contemplated by this Agreement at or prior to the Closing;
(e) The Company has the corporate right, power and authority to enter
into this Agreement and to issue, sell and deliver the Shares and to consummate
all other transactions contemplated hereby;
(f) The outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, and, to
the best knowledge of such counsel, except as set forth in Section 2.02, there
are no outstanding options for the purchase of, or any agreements providing for
the issuance of (contingent or otherwise), or any commitments or claims of any
character relating to, any such capital stock or any shares of stock or
securities convertible into or exchangeable for any such capital stock;
(g) The Company is not in violation of its Articles of Organization,
as amended, or bylaws or, to the best knowledge of such counsel, in default in
the performance of any material obligation, agreement or condition contained in
any bond, debenture or other evidence of indebtedness or any indenture or loan
agreement of the Company. Neither the sale of the Shares, nor the execution and
delivery of this Agreement, the consummation of the transactions herein
contemplated and the compliance with the terms of this Agreement do, or will,
(i) conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the Articles of Organization, as amended, or the
bylaws of the Company, or, to the best knowledge of such counsel, any material
indenture, mortgage or other agreement or instrument of which they have
knowledge to which the Company is as party or by which it or any of its
properties are bound, or (ii) to the best knowledge of such counsel, result in
the creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Company;
(h) Holders of the shares of Series C Preferred and Series D Preferred
have the respective rights, reference and privileges set forth in the Articles
of Amendment, which have been duly and properly adopted and filed in all places
where they are required to be filed;
(i) Based on the accuracy of the representations of the Company and of
the Investors contained in this Agreement, the offer, issuance and sale of the
Shares to the Preferred shareholder pursuant to this Agreement are exempt from
registration under the Securities Act; and
(j) To the best knowledge of such counsel, there is no litigation or
governmental proceeding or investigation pending or threatened against the
Company, relating to the present or proposed business, property or assets of the
Company.
In rendering such opinion, such counsel may rely to a reasonable extent upon
certificates of public officials and upon certificates of officers of the
Company as to matters of fact. Such opinion may be based on existing laws,
rules and regulations.
6.04 Legal Action.
------------
(a) There shall not have been instituted or threatened any material
legal proceeding seeking to prohibit the consumma-
tion of the transactions contemplated by this Agreement, or to obtain damages
from any Investor with respect thereto.
(b) None of the parties hereto shall be prohibited by any order, writ,
injunction or decree of any governmental body of competent jurisdiction from
consummating the transactions contemplated by this Agreement, and no material
action or proceeding shall then be pending which questions the validity of this
Agreement, any of the transactions contemplated hereby or any action which has
been taken by either of the parties in connection herewith or in connection with
any of the transactions contemplated hereby.
6.05 Filing of Articles of Amendment. The Articles of Amendment shall have
-------------------------------
been filed with the Secretary of the Commonwealth of Massachusetts; and except
as so amended, the Company's Articles of Organization will not have been amended
or modified.
6.06 Shareholders Agreement. Xxxxxxxxxx and Xxxxx shall have executed and
----------------------
delivered to the Preferred Shareholders an Amended Shareholder Agreement
substantially in the form of Exhibit C hereto (the "Shareholders Agreement").
6.07 Compliance Certificate. The Company shall have delivered to each
----------------------
Investor at the Closing, an officer's certificate dated the Closing Date and
signed by the President and the Vice President of the Company stating that (i)
the conditions specified in Sections 6.01, 6.02 and 6.04 through 6.06 have been
satisfied, (ii) they have made, or have caused to be made, such investigations
as are necessary in order to permit them to verify the accuracy of the
information set forth in such certificate, and (iii) to the best of their
knowledge, such certificate does not misstate any material fact or omit any fact
necessary to make the certificate not misleading in any material respect.
6.08 Proceedings Satisfactory. All corporate and other proceedings taken
------------------------
prior to or at the Closing in connection with the transactions contemplated by
this Agreement, and all documents and instruments incident thereto, shall be
reasonably satisfactory in form and substance to counsel for the Investors.
7. Conditions to Obligations of the Company at the Closing. The obligations of
-------------------------------------------------------
the Company under this Agreement at the Closing are subject to satisfaction of
the condition (which may be waived by the Company) that all of the
representations and warranties of the Investors contained in this Agreement
shall be true and correct on the Closing Date with the same effect as if made on
the Closing Date.
8. Participation in Future Offerings. In order to afford the Preferred
---------------------------------
Shareholders the opportunity to maintain their percentage ownership interest in
the Company, the Company agrees to offer to the Preferred Shareholders, and to
issue and sell to accepting offerees, such other securities of the Company, that
evidence shares of Common Stock or other Voting Stock or that
bear rights to acquire, convert into or be redeemed or exchanged for shares of
Common Stock or Voting Stock, including without limitation, any rights, options,
warrants or convertible debt or equity instruments that provide any right to
subscribe for, purchase or otherwise acquire shares of Common Stock or other
Voting Stock, as may be offered by the Company from time to time after the
Closing Date (any such shares being herein referred to as "New Shares"), all
pursuant to the terms and conditions of this Section 8.
8.01 Eligible Offerings; Notice. The Company shall deliver written notice
--------------------------
to the Preferred Shareholders of the terms and conditions of each offering,
borrowing or other similar transaction, not intended to be registered under the
Securities Act, pursuant to which the Company intends to issue New Shares. Such
notice shall be delivered to the Preferred Shareholders not later than twenty
(20) business days prior to the date upon which any such transaction closes. By
such notice, the Company shall offer to sell to the Preferred Shareholders the
applicable amount of securities calculated pursuant to Section 8.03.
8.02 Acceptance. Each Preferred Shareholder may accept any such offer in
----------
whole or in part by delivering to the Company a written agreement to make such
purchase, executed by such Preferred Shareholder specifying the amount of the
securities to be purchased by such Preferred Shareholder not later than ten (10)
business days following the date of delivery of the offer to such Preferred
Shareholder by the Company. The terms and conditions, price, timing of closing
and other provisions of such agreement by such Preferred Shareholder shall be
not less favorable to the Company than those of the other agreement to purchase
such New Shares.
8.03 Percentage Interest. The amount of New Shares to be offered to each
-------------------
Preferred Shareholder for purchase pursuant to this Section 8 shall, with
respect to each transaction subject hereto, be calculated by multiplying (a) the
aggregate number of New Shares offered, times (b) the percentage ownership of
Voting Stock of the Company held by such Preferred Shareholder immediately after
the Closing hereunder, as set forth opposite such Preferred Shareholder's name
on Exhibit A hereto.
8.04 Excluded Offerings. The provisions of this Article 8 shall not apply
------------------
to any issuance by the Company of New Shares:
(a) in connection with an acquisition by the Company or any Subsidiary
of the assets or securities of another business entity or the merger of any
business entity with or into the Company or any Subsidiary; or
(b) to employees or consultants of the Company or any Subsidiary
pursuant to Section 5.12 hereof or otherwise;
provided, however, that any such issuance of New Shares and the terms thereof
have been approved by the Board of Directors of the
Company by unanimous written consent or at a meeting at which a majority of the
representatives of the Preferred Shareholders are present and vote in favor
thereof.
8.05 No Accumulation. Each transaction or proposed issuance under this
---------------
Section 8 is a separate transaction. The failure of a Preferred Shareholder to
exercise in whole or in part any prior offer shall not increase his or its
rights with respect to any future transaction subject hereto and the rights of
any Preferred Shareholder under this Section 8 with respect to any transactions
are reduced pro rata to the extent that such Preferred Shareholder acquires
securities of the Company by participating directly in such transaction.
8.06 Rights Personal. The rights created by this Section 8 are personal to
---------------
the Preferred Shareholders and may not be assigned, except in connection with a
transfer of Securities purchased hereunder by any Preferred Shareholder which is
a corporation or partnership to its respective shareholders or partners.
8.07 Termination of Rights. The rights provided to the Preferred
---------------------
Shareholders in this Section 8 shall terminate upon the effectiveness of any
Registration Statement (as defined in Section 9.01 hereof) filed by the Company
under the Securities Act covering any shares of its Common Stock.
9. Registration Rights.
-------------------
9.01 Certain Definitions. As used in this Section 9, the following terms
-------------------
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
----------
other Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
-------- ---
or any similar Federal statute, and the rules and regulations of the Commission
issued under the Act, as they each may, from time to time, be in effect.
"Securities Act" means the Securities Act of 1933, as amended, or any
---------- ---
similar Federal statute, and the rules and regulations of the Commission issued
under that Act, as they each may, from time to time, be in effect.
"Person" means an individual, a corporation, a partnership, a trust,
------
an unincorporated organization, and a government or any department, agency, or
political subdivision thereof.
"Registration Statement" means (a) a registration statement (other
----------------------
than a registration statement on Form S-1 solely with respect to employee
benefit plans, on Form S-8, or on Form S-4 solely with respect to Rule 145
transactions, or any successor form or forms used for the purpose specified by
such forms), or (b) an offering circular or offering statement pursuant to
Regulation A under the Securities Act (provided that if such form is not
available for the transaction for which it is proposed to be utilized, it shall
not be deemed to be a "Registration Statement"), in either event filed by the
Company with the Commission for a public offering and sale of securities of the
Company.
"Registration Expenses" means the expenses described in paragraph (f)
---------------------
of this Section 9.
"Registrable Shares" means (i) the shares of Conversion Stock issued
------------------
or issuable to the Preferred Shareholders upon conversion of their Series B
Preferred or Series D Preferred, and (ii) any other shares of Common Stock of
the Company issued in respect of such shares because of stock splits, stock
dividends, reclassifications, recapitalizations, mergers, consolidations, or
similar events); provided, however, that any shares previously sold by a
-------- -------
Preferred Shareholder to the public pursuant to a registered public offering or
Rule 144 under the Securities Act shall cease to be Registrable Shares.
Whenever reference is made in this Agreement to a request or consent in writing
from the holders of a certain percentage of the Registrable Shares, such
reference shall include shares of Conversion Stock issuable upon conversion of
the Series B Preferred or Series D Preferred, even though such conversion has
not then been effected.
"Stockholders" means the Preferred Shareholders and any persons or
------------
entities to whom shares of Series B Preferred, Series D Preferred or Conversion
Stock are transferred by an Preferred Shareholder or any subsequent transferee
thereof.
9.02 Sale or Transfer of the Shares. The Shares shall not be sold or
------------------------------
transferred unless either (a) they first shall have been registered under the
Securities Act, (b) such shares are sold in compliance with Rule 144 under the
Securities Act, or (c) the Company first shall have been furnished with an
opinion of legal counsel, reasonably satisfactory to the Company or its counsel,
stating that such sale or transfer is an exempted transaction under the
Securities Act and, unless such opinion states that such Shares may be
transferred by the transferee immediately after acquisition without registration
under the Securities Act, a written agreement by the transferee thereof not to
sell or transfer such Shares without complying with the requirements provided
for in this Section 9.02. The Company or its transfer agent may require, as a
condition to registration of transfer following any sale pursuant to Rule 144
under the Securities Act, that it be furnished with an opinion of counsel
satisfactory to it to the effect stated in the preceding sentence. The fees and
expenses of such counsel in routine Rule 144 transactions not involving unusual
circumstances shall be borne by the Company.
9.03 Required Registration.
---------------------
(a) At any time after June 22, 1994, a Stockholder or Stockholders
holding in the aggregate at least 51% of the Registrable Shares may request the
Company, in writing, to effect the
registration under the Securities Act of Registrable Shares having an aggregate
offering price of at least $5,000,000. Upon receipt of any such request, the
Company shall promptly give written notice of such proposed registration to all
Stockholders. Such Stockholders shall have the right, by giving written notice
to the Company within 20 days from receipt of the Company's notice, to elect to
have included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration, on the requested form of Registration Statement, of all
Registrable Shares which the Company has been requested to register. If such
request is in connection with an underwritten public offering, the underwriters
will be selected by the Company, subject to the approval of a majority of the
requesting holders, which approval will not be unreasonably withheld.
The Company shall not be required to effect more than one registration
pursuant to this paragraph (a). In addition, the Company shall not be required
to effect any registration within six months after the effective date of any
other Registration Statement of the Company.
(b) If at the time of any request to register Registrable Shares
pursuant to paragraph (a), (i) the Company is engaged or has fixed plans to
engage within 30 days of the time of the request in a registered public offering
as to which the Stockholders may include Registrable Shares pursuant to
paragraph (a), or (ii) is engaged in any other activity which, in the good faith
determination of the Company's Board of Directors, would be adversely affected
by the requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of six months from the effective date of such offering or the date of
commencement of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any two
year period. In an event described in clause (i), the Company may, within the
period stated therein, file a Registration Statement, which Registration
Statement, at the Company's option, shall be deemed to be a Registration
Statement filed under paragraph (b) of Section 9.04 hereof.
9.04 Incidental Registrations.
------------------------
(a) If the Company at any time proposes to file a Registration
Statement covering any of its securities, whether of its own accord or at the
request or demand of any holder or holders of such securities, and if the
Registration Statement proposed to be used may be used for the registration of
Registrable Shares (an "Incidental Registration"), the Company will thereupon
give prompt written notice to all Stockholders of its intention to do so, and,
upon the written request of any such Stockholder made within 15 days after the
receipt of any such notice (which request will specify the Registrable Shares
intended to be disposed of by such Stockholder and state the intended
method of disposition thereof), the Company will use its best efforts to cause
all such Registrable Shares, the holders of which have so requested the
registration thereof, to be registered under the Securities Act to the extent
requisite to permit the disposition (in accordance with the intended methods
thereof as aforesaid) by the holders of the Registrable Shares to be so
registered; provided, however, that the Company shall not be obligated to use
its best efforts to cause all Registrable Shares of requesting holders to be
registered unless the aggregate proposed selling price of such Registrable
Shares is $250,000.
(b) If an Incidental Registration is a primary registration on behalf
of the Company and is in connection with an underwritten public offering, and if
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration (whether
by the Company, the holders of Registrable Shares pursuant to paragraph (a) of
this Section 9.04 or other holders of securities pursuant to any other rights
granted by the Company to demand inclusion of any such securities which can be
sold in such offering, the Company will include in such registration the number
of securities requested to be included which in the opinion of such underwriters
can be sold in the following order (i) first, all of the shares the Company
proposes to sell, (ii) second, all of the Registrable Shares requested to be
included in such registration, pro rata among the holders of Registrable Shares,
and (iii) third, any other securities requested to be included in such
registration.
(c) If an Incidental Registration is a secondary registration on
behalf of holders of the Company's securities and is in connection with an
underwritten public offering, and if the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration (whether by such holders, by holders of
Registrable Shares pursuant to Section 9.03 of this Section 9 or by holders of
its securities pursuant to any other rights granted by the Company to demand
inclusion of securities in such registration) exceeds the number of securities
which can be sold in such offering, the Company will include in such offering
the number of securities requested to be included which in the opinion of such
underwriters can be sold in the following manner (i) first, the securities
requested to be included by the holders demanding such registration, and (ii)
second, any other securities (including the Registrable Shares, if the
Stockholders did not demand such registration pursuant to Section 9.03 requested
to be included in such registration, pro rata among the holders of all such
securities on the basis of the number of shares of such securities held by each
such holder.
(d) The rights given to the holders of Registrable Shares pursuant to
this Section 9.04 shall terminate, with respect to a particular holder, when
such holder may sell an unlimited number of Registrable Shares without regard to
any limitation on the number of securities to be sold, the manner of
sale or any other aspects of the proposed transfer, as such may be limited by
Rule 144 or any other similar rule or regulation of the Commission promulgated
under the Securities Act.
9.05 Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than 90 days from the
effective date and to comply with the provisions of the Securities Act (to the
extent applicable to the Company) with respect to the disposition of all
Registrable Shares registered hereby in accordance with the intended methods of
disposition by the selling Stockholders thereof set forth in such Registration
Statement;
(c) as expeditiously as possible furnish to each selling Stockholder
such numbers of copies of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
instruments as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states or jurisdictions as each selling
Stockholder shall reasonably request, and do any and all other acts and things
that may be necessary or desirable to enable the selling Stockholder to
consummate the public sale or other disposition in such jurisdictions of the
Registrable Shares owned by the selling Stockholder; provided, however, that the
-------- -------
Company shall not be required in connection with this paragraph (d) to qualify
as a foreign corporation or execute a general consent to service of process in
any jurisdiction.
(e) notify each selling Stockholder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act within the
period mentioned in paragraph (b) above, of the happening of any event as a
result of which the prospectus included in such Registration Statement, as then
in effect, include an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and as
expeditiously as possible
prepare and furnish to such selling Stockholder a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Shares, such
prospectus will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(f) cause all such Registrable Shares covered by such Registration
Statement to be listed on securities exchanges on which similar securities
issued by the Company are then listed, if any;
(g) provide a transfer agent for all such Registrable Shares covered
by such Registration Statement not later than the effective date of such
Registration Statement; and
(h) take such other customary actions as the holders of a majority of
Registrable Shares being sold may reasonably request in order to expedite or
facilitate the disposition of such Registrable Shares.
If the number of holders requesting registration of Registrable Shares
exceeds three, the Company may, in its discretion, require the holders who have
requested registration to appoint an attorney-in-fact to represent them in the
registration proceedings and who shall have the power to execute on their behalf
the Registration Statement, any amendments to the Registration Statement, the
underwriting agreement, if any, and, to the extent permitted by law, any other
forms or letters required from such holders by the Commission.
9.06 Allocation of Expenses. "Registration Expenses" shall mean all
----------------------
expenses incurred by the Company in complying with this Section 9, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company and of one counsel for all selling
Stockholders, state securities or Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any such registration, but
excluding underwriting discounts and selling commissions. The Company will pay
all Registration Expenses in connection with the registration pursuant to
paragraph (a) of Section 9.03 and in connection with all registrations pursuant
to Section 9.04.
9.07 Indemnification. In the event of any registration of any of the
---------------
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the seller of such Registrable Shares,
each underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, such underwriter, and each such controlling
person for any legal or any other expenses reasonably incurred by such seller,
underwriter, or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
-------- -------
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in the Registration Statement, preliminary prospectus or
prospectus, or the amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by or on behalf of such seller or underwriter specifically for use in
the preparation thereof.
In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of the Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, to the same extent and
against the same losses, claims, damages, liabilities, costs and expenses
described in the preceding paragraph, in respect of any untrue statement (or
alleged untrue statement) in or omission (or alleged omission) from any
Registration Statement or preliminary or final prospectus, if the statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of such seller, specifically for use
in connection with the preparation of the Registration Statement or prospectus.
9.08 Indemnification with Respect to Underwritten Offering. In the event
-----------------------------------------------------
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 9.03, the Company agrees to enter into
an underwriting agreement containing customary representations and warranties
with respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including, without limiting the generality of the foregoing, customary
provisions with respect to indemnification by the Company of the underwriters of
such offering.
9.09 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission
which may at any time permit the sale of restricted securities 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) 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 effect date of the first registration under the Securities Act filed by the
Company for an offering of its securities to the general public;
(b) Use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) So long as a Preferred Shareholder owns any restricted securities,
as such term is defined in Rule 144, to furnish to such Preferred shareholder
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 (at any time after 90 days
after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as a
Preferred Shareholder may reasonably request to avail himself or itself of any
rule or regulation of the Commission allowing a Preferred Shareholder to sell
any such securities without registration.
10. Definitions.
-----------
For purposes of this Agreement, the following terms have the respective
meanings set forth below:
10.01 "Affiliate" means any Person which directly or indirectly controls, is
---------
controlled by, or is under common control with, the indicated Person.
10.02 "Conversion Stock" means the total number of shares of the Company's
----------------
Common Stock, and any other securities issued or issuable upon conversion of the
Series B Preferred and the Series D Preferred.
10.03 "1989 Agreement" means the Series A and Series B Preferred Stock
--------------
Purchase Agreement dated June 22, 1989 by and among the Company, the Founders
and the Investors.
10.04 "1989 Investors" means investors who were parties to the 1989
--------------
Agreement.
10.05 "Person" means an individual, a partnership, a joint venture, a
------
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
10.06 "Preferred Shareholders" means the holders of shares of Series A
----------------------
Preferred, Series B Preferred, Series C Preferred and Series D Preferred.
10.07 "Series A Preferred" means shares of Series A Preferred Stock, $.01
------------------
par value, of the Company.
10.08 "Series B Preferred" means shares of Series B Preferred Stock, $.01
------------------
par value, of the Company.
10.09 "Shares" means the shares of Series C Preferred and Series D Preferred
------
being purchased hereunder.
10.10 "Subsidiary" means any corporation at least a majority of the Voting
----------
Stock of which is, at the time as of which any determination is being made,
owned by the Company either directly or through Subsidiaries.
10.11 "Voting Stock" means any shares of stock having general voting power
------------
in electing the Board of Directors of the Company (irrespective of whether or
not at the time stock of any other class or classes has or might have voting
power by reason of the happening of any contingency).
11. Miscellaneous Provisions.
------------------------
11.01 1989 Investor Consent and Waiver. The 1989 Investors hereby agree
--------------------------------
that (a) effective upon the execution of this Agreement, Sections 5, 8 and 9 in
their entirety of the 1989 Agreement are amended and superseded in full by
Sections 5, 8 and 9 respectively of this Agreement; and (b) any and all
preemptive rights that each 1989 Investor has or may have pursuant to Section 8
of the 1989 Agreement are hereby waived with respect to the issuance of the
Series C Preferred Stock and Series D Proposed Stock to be issued hereunder.
Each of the 1989 Investors hereby consents to the granting of registration
rights to the Series D Preferred holders pursuant to Section 9 of this Agreement
(in accordance with Section 9 of the 1989 Agreement), and, (ii) the execution
and delivery of the Amended Shareholder Agreement.
11.02 Construction. This Agreement shall be construed and enforced in
------------
accordance with and governed by the laws of the Commonwealth of Massachusetts.
11.03 Notices. All notices, requests, demands and other communications
-------
called for or contemplated hereunder shall be in writing and shall be deemed
duly given when deposited in the U.S. mail, certified mail, or registered mail,
postage prepaid, with return receipt requested, or when transmitted by wire or
telex, addressed to the parties at the following addresses, or at such
other addresses as the parties may designate by written notice in the manner
aforesaid:
If to Preferred Shareholders: At the addresses listed on
Exhibit A hereto.
If to the Company: Vivid Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
11.04 Assignment. This Agreement shall be binding upon and shall inure to
----------
the benefit of the Company and the Preferred Shareholders and their respective
successors and assigns.
11.05 Succession to Rights. The rights and powers of each Preferred
--------------------
Shareholder hereunder are granted to such Preferred Shareholder as an owner of
the Shares. Consequently, the parties agree that, except as limited by Section
8.05, such rights and powers exist separately and distinctly with respect to
each share of the Securities and as to each such share shall pass with it so
that any owner of any shares of the Securities whether becoming such by
transfer, assignment, operation of law or otherwise, shall have all of the
rights and powers of such Preferred Shareholder hereunder, and shall be entitled
to exercise them in full, with or without the agreement or consent of other such
owners, and no transfer or assignment shall divest such Preferred Shareholder or
any subsequent owner of such rights and powers unless all shares of the
Securities owned by such persons are transferred or assigned.
11.06 Amendments and Waiver. This Agreement and all exhibits hereto set
---------------------
forth the entire understanding of the parties with respect to the transactions
contemplated hereby, and no party shall be bound by or deemed to have made any
representations or warranties except those contained herein. The provisions of
this Agreement may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company has obtained the written consent of the holders of at least
60% of the Series B Preferred and 60% of the Series D Preferred (including for
purposes hereof Conversion Stock into which shares of Series B Preferred and
Series D Preferred have been converted). Notwithstanding anything to the
contrary in this Section 11.05, no holder of Registrable Shares will be bound by
any consent authorized by this Section 11.05 to the extent that such consent
relates to the rights of such holder under Section 9 hereof, unless the holders
of at least a majority of the Registrable Shares then outstanding have so
consented or agreed in writing to be so bound. No breach of any covenant,
agreement, warranty or representation shall be deemed waived unless expressly
waived in writing by the party who might assert such breach.
11.07 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument.
11.08 Headings. The headings and the table of contents of this Agreement
--------
are for reference purposes only and shall not be deemed to have any substantive
effect.
11.09 Expenses. Whether or not the transactions contemplated by this
--------
Agreement are consummated, the Company shall pay the reasonable expenses and
legal fees of Xxxx and Xxxx, counsel to the Preferred Shareholders, in
connection with the negotiation and drafting of this Agreement and the
transactions contemplated hereby.
11.10 Confidential Information. Each of the Preferred Shareholders agrees
------------------------
that it will treat all proprietary information received by it at any time
concerning the Company or its present or proposed business as confidential
information and that it will not, directly or indirectly, disclose such
information to any third party.
11.11 Knowledge and Absence of Personal Liability of Certain Persons. In
--------------------------------------------------------------
any provision of this Agreement or any certificate or other instrument delivered
pursuant hereto in which a fact or matter is stated to be to the best of the
party's knowledge or that the party has no reason to believe the existence or
nonexistence of a fact or matter, such statements shall be deemed to be limited
to the actual knowledge and state of mind of the officer or employee executing
and/or initialing and delivering such agreement or instrument on behalf of such
party. Each officer or individual who executes and/or initials and delivers
this Agreement or any certificate or other instrument pursuant hereto on behalf
of any party hereto, shall be deemed to be acting in a representative capacity,
and no such individual shall have any personal liability hereunder as a result
of so acting in the absence of fraud or gross negligence on the part of such
officer or individual.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
VIVID TECHNOLOGIES, INC.
By:_________________________
S. Xxxxx Xxxxxxxxxx,
President
For the purposes of Article 3 hereof only, each of the undersigned Founders
has executed this Agreement as of the date first written above.
_____________________________
S. Xxxxx Xxxxxxxxxx
_____________________________
Xxx X. Xxxxx
THE INVESTORS AND THE ALTA III Limited Partnership
1989 INVESTORS By: Alta III Management
Partners Limited
Partnership
By:____________________________
General Partner
XXXXXXX PARTNERS II
By: Golden Coins, N.V.,
Investment General Partner
By: ABN Trustcompany (Curacao) N.V., Managing
Director
By:____________________________
Attorney-in-Fact
XXXX XXXX C.V.
By: Golden Coins N.V., Managing General
Partner
By: ABN Trustcompany (Curacao) N.V., Managing
Director
By:____________________________
Under Power of Attorney
C.V. SOFINNOVA PARTNERS FOUR
By: Sofinnova (International)
Four N.V., General Partner
By:____________________________
Under Power of Attorney
PIONEER VENTURES LIMITED
PARTNERSHIP
By:____________________________
XXXXXXX CAPITAL IV
By:____________________________
XXXXXXX CAPITAL V
BY:_____________________________
BETA PARTNERS LIMITED PARTNERSHIP
BY: Beta Management Limited
Partnership, General
Partner
By:_____________________________
General Partner
MASSACHUSETTS CAPITAL RESOURCE
COMPANY
By:_____________________________
Xxxxxxx X. Xxxxxxxx,
Senior Vice President
LPP PARTNERSHIP
By:_____________________________
Xxxxxxxxxxx X. Xxxxx, Partner
EXHIBIT A
---------
INVESTORS
---------
Number of No. of
Series C Aggregate Series D Aggregate
Shares Considera- Shares Considera-
Name and Address Purchased tion Purchased tion
---------------- --------- ---------- --------- ----------
Alta III 51,030 $510,300 37,800 $56,700
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxxxxx Partners II 8,100 $ 81,000 6,000 $ 9,000
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxx Xxxx C.V. 8,910 $ 89,100 6,600 $ 9,900
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
C.V. Sofinnova 12,960 $ 129,600 9,600 $ 14,400
Partners Four
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Pioneer Ventures 25,650 $256,500 19,000 $28,500
Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxx
Xxxxxxx Capital IV 9,000 $ 90,000 6,666 $ 9,999
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Xxxxxxx Capital V 9,000 $ 90,000 6,667 $10,001
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Beta Partners Limited 27,000 $270,000 20,000 $30,000
Partnership
c/o Beta Partners, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Massachusetts Capital
Resource Company 27,000 $270,000 20,000 $30,000
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
LPP Partnership 1,350 $ 13,500 1,000 $ 1,500
x/x Xxxxxxx Xxxxxxx
Xxxxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
======= ======== =======
180,000 $1,800,000 133,333 $200,000
EXHIBIT A-1
-----------
INVESTORS
---------
Number of No. of
Series C Aggregate Series D Aggregate
Shares Considera- Shares Considera-
Name and Address Purchased tion Purchased tion
---------------- --------- ---------- --------- ----------
Alta III 9,006 $90,060 6,670 $10,005
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxxxxx Partners II 1,429 $14,290 1,060 $ 1,590
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxx Xxxx C.V. 1,572 $15,720 1,164 $ 1,746
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
C.V. Sofinnova 2,287 $22,870 1,694 $ 2,541
Partners Four
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Pioneer Ventures 4,527 $45,270 3,354 $ 5,031
Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxx
Xxxxxxx Capital IV 1,588 $15,880 1,176 $ 1,764
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Xxxxxxx Capital V 1,588 $15,880 1,176 $ 1,764
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Beta Partners Limited 4,765 $47,650 3,530 $ 5,295
Partnership
c/o Beta Partners, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
LPP Partnership 238 $ 2,380 176 $ 264
c/o Pioneer Capital
Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
====== ======= ======
27,000 $ 270,000 20,000 $ 30,000
EXHIBIT A-2
-----------
INVESTORS
---------
Number of No. of
Series C Aggregate Series D Aggregate
Shares Considera- Shares Considera-
Name and Address Purchased tion Purchased tion
---------------- --------- ---------- --------- ----------
Alta III 60,036 $600,360 44,470 $66,705
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxxxxx Partners II 9,529 $ 95,290 7,060 $10,590
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Xxxx Xxxx C.V. 10,482 $104,820 7,764 $11,646
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
C.V. Sofinnova 15,247 $152,470 11,294 $16,941
Partners Four
c/o Burr, Egan,
Deleage & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Pioneer Ventures 30,177 $301,770 22,354 $33,531
Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx Xxxxx
Xxxxxxx Capital IV 10,588 $105,880 7,842 $11,763
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Xxxxxxx Capital V 10,588 $105,880 7,843 $11,765
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Beta Partners Limited 31,765 $317,650 23,530 $35,295
Partnership
c/o Beta Partners, Inc.
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
LPP Partnership 1,588 $ 15,880 1,176 $ 1,764
x/x Xxxxxxx Xxxxxxx
Xxxxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
======= ========= =======
180,000 $1,800,000 133,333 $200,000
