EXHIBIT 10.4
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this "Agreement")
is made and entered into as of September 19, 2001 by and among ADEZA BIOMEDICAL
CORPORATION (the "Company"), the undersigned holders of capital stock of the
Company (the "Investors") and the undersigned purchasers of Series 5 Preferred
Stock of the Company (the "Purchasers"). The Investors and the Purchasers are
sometimes collectively referred to as the "Stockholders."
RECITALS
A. The Company will issue to the Purchasers an aggregate of up to
3,250,000 shares of Series 5 Preferred Stock pursuant to a Series 5 Preferred
Stock Purchase Agreement of even date herewith (the "Series 5 Agreement").
B. The Investors hold shares of: (i) Series 1 Preferred Stock issued as
part of a recapitalization of the Company in which all shares of Series A,
Series B, Series C, Series D, Series E and Series F Preferred Stock were
converted into shares of Series 1 Preferred Stock; (ii) Series 2 Preferred Stock
issued pursuant to a Series 2 Preferred Stock Purchase Agreement dated December
21, 1994; (iii) Series 3 Preferred Stock issued pursuant to a Series 3 Preferred
Stock Purchase Agreement dated November 8, 1996; (iv) Series 4 Preferred Stock
issued pursuant to a Series 4 Preferred Stock Purchase Agreement dated September
29, 2000; and (v) shares of Common Stock of the Company issued or issuable upon
conversion of the foregoing Series 1 Preferred Stock, Series 2 Preferred Stock,
Series 3 Preferred Stock and Series 4 Preferred Stock. The Company and the
Investors are also parties to an Amended and Restated Investors' Rights
Agreement dated September 29, 2000 (the "Prior Rights Agreement"), pursuant to
which the Company granted to such Investors certain registration rights and
rights of first offer.
C. The Purchasers have required that certain registration rights be
granted to them with respect to the securities of the Company to be acquired.
D. The Company, the Investors and the Purchasers wish to amend and
replace the Prior Rights Agreement with this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties agree as follows:
1. Integration. Effective upon the execution of this Agreement by
Investors holding the requisite number of shares of Preferred Stock necessary to
terminate the Prior Rights Agreement and the closing of the sale and issuance of
Series 5 Preferred Stock pursuant to the Series 5 Agreement, and subject only to
the conditions set forth therein, all rights and covenants contained in the
Prior Rights Agreement shall be terminated and replaced in their
entirety by the rights and covenants in this Agreement. The rights and covenants
of this Agreement set forth the sole and entire agreement among the Company, the
Investors and the Purchasers on the subject matter hereof and supersede any
prior agreements; provided that this Agreement does not amend or replace those
certain side letters entered into by and among the Company and certain
Purchasers dated as of September 29, 2000 or of even date herewith.
2. Restrictions On Transfer; Registration Rights.
2.1 Definitions. As used herein:
(a) The terms "register", "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of the effectiveness of such
registration statement.
(b) For the purposes hereof, the term "Registrable
Securities" means shares of (i) any and all Common Stock of the Company issued
or issuable (A) upon conversion of shares of the Series 1 Preferred Stock,
Series 2 Preferred Stock, Series 3 Preferred Stock, Series 4 Preferred Stock, or
Series 5 Preferred Stock of the Company, which have not been previously resold
to the public in a registered public offering, (B) upon exercise of those
certain Stock Purchase Warrants issued to certain of the Investors pursuant to
the transactions in connection with the Series 3 Preferred Stock Purchase
Agreement dated November 8, 1996, among the Company and such Investors, or upon
the conversion of the shares of Series 3 Preferred Stock issued or issuable upon
exercise of such warrants, or (C) upon exercise of those certain Stock Purchase
Warrants issued to certain other of the Investors pursuant to a Note and Warrant
Purchase Agreement dated December 22, 1998, among the Company and such
Investors, or upon the conversion of the shares of Series 3 Preferred Stock
issued or issuable upon exercise of such warrants, (ii) stock issued with
respect to or in any exchange for or in replacement of stock included in
subparagraph (i) above which have not been previously resold to the public in a
registered public offering, or (iii) stock issued in respect of the stock
referred to in (i) and (ii) above as a result of a stock split, stock dividend
or the like, which have not been previously resold to the public in a registered
public offering.
(c) For the purposes of Sections 2.2(c) and 6.1 hereof, the
term "Series 3, 4 and 5 Registrable Securities" means shares of (i) any and all
Common Stock of the Company issued or issuable upon conversion of shares of
Series 3 Preferred Stock, Series 4 Preferred Stock or Series 5 Preferred Stock
of the Company, which have not been previously resold to the public in a
registered public offering, (ii) stock issued with respect to or in any exchange
for or in replacement of stock included in subparagraph (i) above which have not
been previously resold to the public in a registered public offering, or (iii)
stock issued in respect of the stock referred to in (i) and (ii) above as a
result of a stock split, stock dividend or the like, which have not been
previously resold to the public in a registered public offering.
(d) The terms "Holder" or "Holders" mean any person or
persons to whom Registrable Securities (and with regard to Section 2.2(c) only,
the Holder or Holders of
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Series 3, 4 and 5 Registrable Securities) were originally issued and who execute
this Agreement or qualifying transferees under Section 5 hereof who hold
Registrable Securities.
(e) The term "Initiating Holders" means any Holder or
Holders of in the aggregate at least 40% of the Registrable Securities which
have not been previously resold to the public in a registered public offering.
2.2 Requested Registration.
(a) Request for Registration. In case the Company shall
receive from the Initiating Holders a written request that the Company effect
any registration with respect to Registrable Securities the reasonably expected
aggregate offering price of which equals or exceeds $7,500,000 including
underwriting discounts and commissions, the Company will:
(i) within ten (10) days after its receipt thereof
give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, preparation of a
registration statement and prospectus complying as to form with the requirements
of the Securities Act, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other
state securities laws and appropriate compliance with exemptive regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Registrable
Securities as is specified in such request, together with all or such portion of
the Registrable Securities of any Holder or Holders joining in such request as
are specified in a written request given within 20 days after receipt of such
written notice from the Company; provided, that the Company shall not be
obligated to take any action to effect such registration pursuant to this
Section 2.2(a):
(A) Prior to the earlier of (i) two years after
the date hereof, or (ii) one hundred and twenty (120) days following the
effective date of the Company's first registered offering to the general public
of its securities for its own account (the "IPO"); or
(B) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act; or
(C) After the Company has effected two such
registrations pursuant to this subsection 2.2(a) and such registrations have
been declared or ordered effective.
Subject to the foregoing clauses (A) through (C), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practical, but in any event within seventy-five (75) days
after receipt of the request or requests of the Initiating Holders; provided,
however, that if the Company shall furnish to such Holders a
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certificate signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company for such registration statement to be filed
at the date filing would be required and it is therefore essential to defer the
filing of such registration statement, the Company shall be entitled to delay
the filing of such registration statement not more than once in any twelve month
period for an additional period of up to ninety (90) days.
(b) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 2.2 and the Company shall include such information in the
written notice referred to in subsection 2.2(a)(i). The right of any Holder to
registration pursuant to Section 2.2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. The Company shall (together with all Holders proposing to
distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, provided, however, that the managing underwriter shall be approved by
the Company, which approval shall not be unreasonably withheld. Notwithstanding
any other provision of this Section 2.2, if the underwriter advises the
Initiating Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, the Initiating Holders shall so advise all
Holders of Registrable Securities who have elected to participate in such
offering, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all such
Holders thereof in proportion as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders. If any Holder of
Registrable Securities disapproves of the terms of the underwriting, he may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders. Any Registrable Securities which are excluded from
the underwriting by reason of the underwriter's marketing limitation or
withdrawn from such underwriting shall be withdrawn from such registration. If
the underwriter has not limited the number of Registrable Securities to be
underwritten, the Company, employees of the Company and other holders of the
Company's Common Stock may include securities for its (or their) own account in
such registration if the underwriter so agrees and if the number of Registrable
Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited by the underwriter.
(c) Shelf Registration. Beginning the earlier of (i) 120
days following the IPO or (ii) 60 days prior to the expiration of the IPO
lock-up provision (as described in Section 2.8) applicable to officers and
directors of the Company, in case the Company shall receive from Holders of at
least 50% of the Series 3, 4 and 5 Registrable Securities a written request that
the Company effect the registration of securities described in this Section
2.2(c), the Company shall use its best efforts to cause the Series 3, 4 and 5
Registrable Securities held by each such Holder to be registered under the
Securities Act so as to permit the sale thereof, and in connection therewith
shall prepare and file with the Securities and Exchange Commission (the "SEC")
and shall use its best efforts to cause to become effective on the earlier of
180 days following the IPO or the expiration of the IPO lock-up
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provision (as described in Section 2.8) applicable to officers and directors, a
registration statement in such form as is then available under the Securities
Act covering the Series 3, 4 and 5 Registrable Securities; provided, however,
that each such Holder shall provide all such information and materials and take
all such action as may be required in order to permit the Company to comply with
all applicable requirements of the SEC and to obtain any desired acceleration of
the effective date of any such registration statement, such provision of
information and materials to be a condition precedent to the obligations of the
Company pursuant to this Section 2.2(c) with respect to the Series 3, 4 and 5
Registrable Securities held by such Holder. The Company shall not be required to
effect more than one (1) registration under this Section 2.2(c). The offering
made pursuant to such registration shall not be underwritten, unless
specifically requested in writing by the holders of at least ninety percent
(90%) of the Series 3, 4 and 5 Registrable Securities then outstanding.
(ii) Postponement of Registration. The Company shall be
entitled to postpone the initial declaration of effectiveness of the
registration statement prepared and filed pursuant to this Section 2.2(c) for a
reasonable period of time, but not in excess of twenty (20) calendar days, if
the Board of Directors of the Company, acting in good faith, determines that it
would be seriously detrimental to the Company and its stockholders for such
registration statement to become effective and it is therefore essential to
defer the filing of such registration statement.
(iii) Delay of Sale. Each Holder of Series 3, 4 and 5
Registrable Securities agrees that the Company may refuse to permit such Holder
to resell any Series 3, 4 and 5 Registrable Securities, pursuant to Section
2.2(c); provided, however, that in order to exercise this right, the Company
must deliver a certificate in writing to such Holder to the effect that a delay
in such sale is necessary because a sale pursuant to the Registration Statement
in its then current form could reasonably constitute a violation of the federal
securities laws. In no event shall such delay exceed twenty (20) calendar days;
provided, however, that if, prior to the expiration of such twenty (20) calendar
day period, the Company delivers a certificate in writing to such Holder to the
effect that a further delay in such sale beyond such twenty (20) calendar day
period is necessary because a sale pursuant to such Registration Statement in
its then current form could constitute a violation of the federal securities
laws, the Company may refuse to permit such Holder to resell any shares of
Series 3, 4 and 5 Registrable Securities for an additional period not to exceed
twenty (20) calendar days (an "Additional Delay"). Notwithstanding the
foregoing, if the Company has exercised its right to a postponement pursuant to
Section 2.2(c)(ii) above, the Company must wait a period of one hundred ten
(110) days following the effectiveness of the registration statement filed
pursuant to this Section 2.2(c), plus such additional number of days during
which the Company postponed the declaration of effectiveness pursuant to Section
2.2(c)(ii) above, before exercising an Additional Delay. After suspending
trading, in accordance with this Section 2(c)(iii), the Company may not suspend
trading for ninety (90) calendar days following the end of such suspension
period, except and only to the extent necessary to allow the Company to file any
and all appropriate disclosure documents with the SEC. During any suspension as
contemplated by this Section 2(c)(iii), the Company will not allow any of its
officers or directors to buy or sell shares of the Company's securities.
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(iv) Representations of Holders. Each Holder hereby
represents to and covenants with the Company that, while any registration
statement effected pursuant to this Section 2.2(c) remains effective, such
Holder will:
(A) not engage in any stabilization activity in
connection with any of the Company's securities;
(B) cause to be furnished to any purchaser of
the Series 3, 4 and 5 Registrable Securities and to the broker-dealer, if any,
through whom Series 3, 4 and 5 Registrable Securities may be offered, a copy of
the Prospectus; and
(C) not bid for or purchase any securities of
the Company or any rights to acquire the Company's securities, or attempt to
induce any person to purchase any of the Company's securities or any rights to
acquire the Company's securities other than as permitted under the Exchange Act.
2.3 Company Registration.
(a) Right to Include. If at any time or from time to time,
the Company proposes to register any of its securities, for its own account or
the account of any of its stockholders other than the Holders (other than a
registration relating solely to employee stock option or purchase plans, or a
registration relating solely to an SEC Rule 145 transaction, or a registration
on any other form, other than Form X-0, X-0 or S-3, or any successor to such
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registrable Securities), the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance with applicable laws), and
in any underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made within 20 days after receipt of such
written notice from the Company, by any Holder or Holders to be included in any
such registration, except as set forth in subsection 2.3(b) below.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subsection 2.3(a)(i). In such event the right of any Holder to
registration pursuant to Section 2.3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall (together with the Company and the other holders distributing
their Registrable Securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 2.3, if the underwriter determines that marketing
factors require a limitation of the number of shares to
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be underwritten, the underwriter may limit the number of Registrable Securities
to be included in the registration and underwriting (i) completely, in the case
of the Company's IPO, or (ii) to not less than 25% of the shares to be included
in any other registration. In the event of a cutback by the underwriters of the
number of Registrable Securities to be included in the registration and
underwriting, the Company shall advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all of such Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held, or requested to be registered, by such Holders. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration. The Company may not include any securities
other than Registrable Securities held by Holders in a registration statement
pursuant to Section 2.3 if, and to the extent that, the amount of Registrable
Securities held by Holders that otherwise qualify for inclusion in such
registration statement would thereby be diminished.
2.4 Form S-3. After its IPO, the Company shall use its best
efforts to qualify for registration on Form S-3 or any comparable or successor
form. After the Company has qualified for the use of Form S-3, Holders of the
outstanding Registrable Securities shall have the right to request an unlimited
number of registrations on Form S-3 (such requests shall be in writing and shall
state the number of shares of Registrable Securities to be disposed of and the
intended method of disposition of Shares by such Holders), subject only to the
following:
(a) The Company shall not be required to effect a
registration pursuant to this Section 2.4 within 120 days of the effective date
of any registration referred to in Sections 2.2 or 2.3 above (other than a
registration pursuant to Section 2.2(c)).
(b) The Company shall not be required to effect a
registration pursuant to this Section 2.4 unless the Holder or Holders
requesting registration propose to dispose of shares of Registrable Securities
having an aggregate disposition price (before deduction of underwriting
discounts and expenses of sale) of at least $500,000.
(c) The Company shall not be required to effect more than
one registration pursuant to this Section 2.4 in any consecutive 12 month
period.
The Company shall promptly give written notice to all Holders of
Registrable Securities of the receipt of a request for registration pursuant to
this Section 2.4 and shall provide a reasonable opportunity for other Holders to
participate in the registration, provided that if the registration is for an
underwritten offering, the terms of subsection 2.2(b) shall apply to all
participants in such offering. Subject to the foregoing, the Company will use
its best efforts to effect promptly the registration of all shares of
Registrable Securities on Form S-3 to the extent requested by the Holder or
Holders thereof for purposes of disposition; provided, however, that if the
Company shall furnish to such Holders a certificate signed by the President or
Chief Executive Officer of the Company stating that in the good faith judgment
of the Board of Directors it would be seriously detrimental to the Company for
such registration statement to be
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filed at the date filing would be required and it is therefore essential to
defer the filing of such registration statement, the Company shall be entitled
to delay the filing of such registration statement for a period of up to ninety
(90) days from the date of the request. Any registration pursuant to this
Section 2.4 shall not be counted as a registration pursuant to Section 2.2.
2.5 Expenses of Registration. All expenses incurred in connection
with any registration, qualification or compliance pursuant to this Section 2,
including without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company and one
counsel for the selling Holders and expenses of any special audits incidental to
or required by such registration, shall be borne by the Company except as
follows:
(a) The Company shall not be required to pay for expenses of
any registration proceeding begun pursuant to Section 2.2 or 2.4, the request
for which has been subsequently withdrawn by the Initiating Holders, in which
such case, such expenses shall be borne by the Holders requesting such
withdrawal; provided, however, that in lieu of paying such expenses a majority
in interest of the Initiating Holders may elect to forfeit their right to
request one registration pursuant to Section 2.2 (if such registration was being
effected under Section 2.2); provided further, however, that if at the time of
such withdrawal the Holders have learned of a material adverse change in the
business, condition or prospects of the Company different from that known to the
Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Company of such change, then
the Holders shall not be required to pay any such expenses and shall retain
their rights to such registration pursuant to Section 2.2.
(b) The Company shall not be required to pay for expenses of
any registration proceeding pursuant to Section 2.4 after the first three such
registrations pursuant to Section 2.4 have been effected by the Company and such
registrations have been declared or ordered effective.
(c) The Company shall not be required to pay fees of legal
counsel of any individual Holder, except for a single counsel acting on behalf
of all selling Holders.
(d) The Company shall not be required to pay underwriters'
fees, discounts or commissions relating to the Registrable Securities.
2.6 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance
pursuant to Sections 2.2, 2.3 or 2.4 effective for a period of 120 days
(excluding the number of days the registration statement is withdrawn, suspended
or otherwise delayed) or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto,
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whichever first occurs; provided, that with respect to a registration statement
filed pursuant to Section 2.2(c), the Company shall keep such registration
statement open through the earlier of (a) the completion of the distribution of
securities thereunder, (b) the date agreed to by the consent of the Holders of
at least 50% of the unsold Series 3, 4 and 5 Registrable Securities registered
under such registration statement; provided, however, that until such time as
the Sprout Group no longer holds any shares of the Company's Series 3 Preferred
Stock, such consent must include the consent of a majority-in-interest of the
Sprout Group, (c) such time as the Holders can sell all of their Series 3, 4 and
5 Registrable Securities without registration pursuant to Rule 144 within a
three (3) month period, or (d) such other date on which registration rights
would terminate as may be set forth in Section 2.12 below. For purposes of this
Agreement "Sprout Group" shall mean any of Sprout Capital VII, L.P., Sprout CEO
Fund, L.P., Sprout Growth II, L.P., DLJ Capital Corp., or DLJ First ESC L.L.C.
or any affiliates of such entities to whom Registrable Securities have been
transferred.
(b) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them;
(c) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(d) Use its best efforts to register and qualify the
Registrable Securities covered by such registration statement under such other
securities or Blue Sky laws of such United States jurisdictions as shall be
reasonably requested by the Holders; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(e) Cause all such Registrable Securities registered under
this Section 2 to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
(f) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering, and each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(g) Provide a transfer agent and registrar for all
Registrable Securities registered hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration; and
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(h) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 2, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with such registration, if such Registrable Securities are being sold
through underwriters or, if such Registrable Securities are not being sold
through underwriters, on the date that the registration statement with respect
to such Registrable Securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities, and (ii) a letter
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
2.7 Indemnification.
(a) The Company will indemnify and hold harmless each Holder
of Registrable Securities, each of its officers, directors and partners, and
each person controlling such Holder, with respect to which such registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereto)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any preliminary or final prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation or alleged violation by the Company
relating to action or inaction required of the Company in connection with the
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any rule or regulation promulgated under the
Securities Act, Exchange Act or any state securities law applicable to the
Company and will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any reasonable legal and any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company in an
instrument duly executed by such Holder or underwriter specifically for use
therein, and provided further that the agreement of the Company to indemnify any
underwriter and any person who controls such underwriter contained herein with
respect to any such preliminary prospectus shall not inure to the benefit of any
underwriter, from whom the person asserting any such claim, loss, damage,
liability or action purchased the stock which is the subject thereof, if at or
prior to the written confirmation of the sale of such stock, a copy of the
prospectus (or the prospectus as amended or supplemented) was not sent or
delivered to such person, excluding the documents incorporated therein by
reference, and the untrue statement or omission of a material fact contained in
such
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preliminary prospectus was corrected in the prospectus (or the prospectus as
amended or supplemented).
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify and hold
harmless the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company within the meaning of the Securities Act, and
each other such Holder, each of its officers, directors and partners and each
person controlling such Holder, against all claims, losses, expenses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary or final prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, partners,
persons or underwriters for any reasonable legal or any other expenses incurred
in connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company in an instrument duly executed by such Holder
specifically for use therein, and provided further that the agreement of the
Holder to indemnify any underwriter and any person who controls such underwriter
(or to indemnify the Company and each person who controls the Company if the
Company is selling directly and not through an underwriter) contained herein
with respect to any such preliminary prospectus shall not inure to the benefit
of any underwriter, from whom the person asserting any such claim, loss, damage,
liability or action purchased the stock which is the subject thereof (or the
Company if such stock was purchased directly from the Company), if at or prior
to the written confirmation of the sale of such stock, a copy of the prospectus
(or the prospectus as amended or supplemented) was not sent or delivered to such
person, excluding the documents incorporated therein by reference, and the
untrue statement or omission of a material fact contained in such preliminary
prospectus was corrected in the prospectus (or the prospectus as amended or
supplemented). Notwithstanding the foregoing, in no event shall the
indemnification provided by any Holder hereunder exceed the net proceeds
received by such Holder for the sale of such Holder's Registrable Securities
pursuant to such registration.
(c) Each party entitled to indemnification under this
Section 2.7 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought. The Indemnified Party shall promptly permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not be unreasonably be withheld). The Indemnified Party may
participate in such defense and hire counsel at such party's own expense;
provided, however, that the Indemnified Party shall have
11
the right to retain its own counsel with the fees and expenses to be paid by the
Indemnifying Party if the Indemnifying Party refuses to assume the defense
thereof or if representation of such Indemnified Party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations hereunder, except to the extent that such failure is
materially prejudicial to an Indemnifying Party's ability to defend such action.
No Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. No
Indemnified Party shall be entitled to indemnification hereunder if such
Indemnified Party consents to entry of any judgment or enters into any
settlement without the consent of the Indemnifying Party. Any Indemnified Party
shall cooperate with the Indemnifying Party in the defense of any claim or
litigation brought against such Indemnified Party.
2.8 Lock-Up provision. Upon receipt of a written request by the
Company or by its underwriters, the Holders shall not sell, sell short, grant an
option to buy, or otherwise dispose of shares of the Company's Common Stock or
other securities (except for any such shares included in the registration) for a
period of up to one hundred and eighty (180) days following the effective date
of a conversion of all shares of the Company's Preferred Stock into shares of
the Company's Common Stock (an "AUTOMATIC CONVERSION") pursuant to Section 4(b)
of Article IV of the Company's Amended and Restated Certificate of
Incorporation, as amended from time to time (the "RESTATED CERTIFICATE"), in
connection with an IPO; provided, however, that such Holder shall have no
obligation to enter into the agreement described in this Section 2.8 unless all
executive officers and directors enter into similar agreements. The Company may
impose stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restriction until the end of such lock-up period.
2.9 Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may reasonably request in writing and
as shall be required in connection with any registration, qualification or
compliance referred to herein.
2.10 Rule 144A and Rule 144 Reporting.
(a) If the Company receives a request for the information
required in Rule 144A(d)(4) from Initiating Holders on or after two years after
the date hereof, then the Company shall, within 30 days after the date of such
request, provide such information to such Initiating Holders and any person or
persons designated by an Initiating Holder as a prospective buyer in a
transaction pursuant to Rule 144A. The Company's obligations pursuant to this
Section 2.10(a) shall extend to any permitted transferee of Registrable
Securities under Section 5.
12
(b) With a view to making available to Holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, at all times after the effective date of the IPO the Company
agrees to:
(i) Make and keep public information available, as
those terms are understood and defined in SEC Rule 144 under the Securities Act;
(ii) File with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(iii) So long as a Holder owns any Registrable
Securities, to furnish to such Holder forthwith upon such Holder's 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 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 so filed by the Company as such Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing such
Holder to sell any such securities without registration.
2.11 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 2.2, 2.3 or 2.4
hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the extent
that the inclusion of its securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
2.2(a)(ii)(A) or within 120 days of the effective date of any registration
effected pursuant to Section 2.2 hereof.
2.12 Termination. The rights of a Holder under this Agreement
(other than rights under Section 2.7) shall terminate on the earlier to occur of
(a) the fifth anniversary of the effective date of an Automatic Conversion
pursuant to Section 4(b) of Article IV of the Restated Certificate in connection
with an IPO, or (b) the date on which a Holder can sell all of its Registrable
Securities without registration pursuant to Rule 144 within a three (3) month
period, unless at the time the Holder's Registrable Securities represent more
than one percent (1%) of the outstanding capital stock of the Company.
3. Covenants of the Company.
3.1 Financial Information. So long as a Stockholder continues to
hold at least 125,000 shares of Series 1 Preferred Stock, Series 2 Preferred
Stock, Series 3 Preferred
13
Stock, Series 4 Preferred Stock or Series 5 Preferred Stock, including shares of
Preferred Stock issued or issuable upon exercise of warrants for any such series
of Preferred Stock ("Warrant Shares") or shares of Common Stock issued upon
conversion of such Series 1 Preferred Stock, Series 2 Preferred Stock, Series 3
Preferred Stock, Series 4 Preferred Stock or Series 5 Preferred Stock
(collectively, the "Securities"), the Company will furnish the following
information to such Stockholder:
(a) Annual Financials. As soon as practicable after the end
of each fiscal year, and in any event within 90 days thereafter, the Company
will provide the Stockholder with consolidated balance sheets of the Company and
its subsidiaries, if any, as at the end of such fiscal year, and consolidated
income statements and consolidated statements of cash flows of the Company and
its subsidiaries, if any, for such year, prepared in accordance with generally
accepted accounting principles, all in reasonable detail, certified by
independent public auditors of recognized national standing selected by the
Company and accompanied by a copy of such auditors' letter to management.
(b) Quarterly Financials. As soon as practicable after the
end of each fiscal quarter (except the last quarter of the fiscal year), and in
any event within 45 days thereafter, the Company will provide the Stockholders
with consolidated balance sheets and income statements of the Company and its
subsidiaries, if any, as of the end of such quarter, prepared in accordance with
generally accepted accounting principles (except for required footnotes and for
minor year end adjustments).
(c) Budget. As soon as practicable after its adoption or
approval by the Company's Board of Directors, but not later than the
commencement of such fiscal year, the Company will provide the Stockholders with
a consolidated annual plan for each fiscal year which shall include monthly
capital and operating expense budgets, cash flow statements, projected balance
sheets and profit and loss projections for each such month and for the end of
the year, itemized in such detail as the Board of Directors may reasonably
determine.
(d) Termination of Covenant. The Company's obligation to
deliver the information required under this Section 3.1 shall terminate upon the
date on which the Company is required to file a report with the SEC pursuant to
Section 13(a) or 15(d) of the Exchange Act by reason of (i) the Company's having
registered any of its securities pursuant to Section 12 of the Exchange Act or
(ii) a registration statement filed by the Company under the Securities Act
having become effective.
3.2 Confidentiality of Information. All information obtained by a
Stockholder pursuant to Section 3.1 shall be deemed proprietary and confidential
to the Company and will not be disclosed by a Stockholder to any person or
entity without the prior written consent of the Company; provided, however, that
such consent shall not be unreasonably withheld; provided, further, that no such
written consent shall be required (and Stockholder shall be free to release such
information) if such information is to be provided to Stockholder's counsel or
accountant, or to an officer, director, general partner, limited partner,
manager, member, shareholder, investment counselor or advisor, or employee of a
Stockholder with a need to know such information; provided that any such
counsel, accountant, officer,
14
director, general partner, limited partner, manager, member, shareholder,
investment counselor or advisor, or employee shall be bound by the provisions of
this Section 4.9. This restriction shall not apply to information which becomes
known to the public without fault of the recipient or which is disclosed
pursuant to a governmental regulation or order, provided that prior to
disclosure the disclosing party notifies the Company of such proposed disclosure
in order to permit the Company to seek confidential treatment of such
information.
3.3 Additional Issuances of Indebtedness. The Company shall not,
without the prior express approval of the Board of Directors of the Company,
incur, in any one transaction or series of related transactions, any
indebtedness for money borrowed outside the ordinary course of business in
excess of $1,000,000 (it being understood and agreed that credit incurred in the
ordinary course of business and equipment financings do not constitute
indebtedness for money borrowed). This covenant shall terminate on the earlier
of (A) the closing of a firm commitment underwritten public offering pursuant to
an effective registration statement under the Securities Act covering the
offering and sale of Common Stock for the account of the Company to the public
at an aggregate offering price of not less than $15,000,000 and at a public
offering price per share (prior to underwriter commissions and expenses) that is
not less than $6.95 (as adjusted for stock splits, stock combinations and the
like), or (B) two years after the date hereof.
4. Right to Maintain.
4.1 "New Securities". For purposes of this Section 4, the term
"New Securities" shall mean shares of Common Stock, Preferred Stock or any other
class of capital stock of the Company, whether or not now authorized, securities
of any type that are convertible into shares of such capital stock, and options,
warrants or rights to acquire shares of such capital stock. Notwithstanding the
foregoing, the term "New Securities" will not include (a) securities issuable
upon conversion of the Series 1 Preferred Stock, Series 2 Preferred Stock,
Series 3 Preferred Stock, Series 4 Preferred Stock or Series 5 Preferred Stock;
(b) securities offered pursuant to the Corporation's initial firm commitment
underwritten offering of Common Stock to the general public at a per share
offering price of at least $6.95 (before deduction of underwriter discounts,
commissions and offering expenses) with an aggregate offering price to the
public of not less than $15,000,000; (c) securities issued in connection with a
bona fide business acquisition by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock, or otherwise, whereby the Company
owns not less than a majority of the voting power of the surviving corporation;
(d) shares of Common Stock (or related options) issued or issuable at any time
to officers, directors, employees or consultants of the Company for compensatory
purposes, pursuant to any stock grant, stock option plan or stock purchase plan
or other stock incentive agreement or arrangement approved by the vote or
written consent of not less than sixty-six and two-thirds percent (66 2/3%) of
the directors then in office up to an aggregate of 2,268,177 shares (which
number shall increase in accordance with, but only to the extent of any
automatic adjustment feature contained in any such approved plan, agreement or
arrangement as of September 19, 2001, including options outstanding on the date
hereof); (e) securities issued in connection with equipment leasing arrangement
or debt financing from a bank or similar financial institution which is
expressly approved by the Board of Directors of the Company up to an aggregate
of 400,000 shares; (f) securities issued upon
15
exercise or conversion of options, warrants or other convertible securities
outstanding on the date hereof; (g) shares of Series 5 Preferred Stock issued
pursuant to the Series 5 Agreement; (h) securities issued upon written consent
of the holders of sixty-six and two-thirds percent (66 2/3%) of the Series 1
Preferred Stock and Series 2 Preferred Stock, voting or consenting together as a
single class on an as-if-converted basis, the holders of sixty-six two-thirds
percent (66 2/3%) of the Series 3 Preferred Stock, voting or consenting as a
single class on an as-if-converted basis, the holders of sixty-six and
two-thirds percent (66 2/3%) of the Series 4 Preferred Stock, voting or
consenting as a single class on an as-if-converted basis, and the holders of
sixty-six and two-thirds percent (66 2/3%) of the Series 5 Preferred Stock,
voting or consenting as a single class on an as-if-converted basis; (i)
securities issued in connection with a strategic partnering, real estate,
customer or vendor transaction (provided the primary purpose is not the raising
of equity capital) which is expressly approved by the Board of Directors of the
Company up to an aggregate of 400,000 shares; (j) securities issued as a
dividend or distribution on Series 1 Preferred Stock, Series 2 Preferred Stock,
Series 3 Preferred Stock, Series 4 Preferred Stock or Series 5 Preferred Stock;
and (k) securities issued in connection with any transaction for which
adjustment is made pursuant to Section 4(d)(iv) ("Adjustment of Conversion Price
Upon Issuance of Additional Shares of Common"), Section 4(d)(vi) ("Adjustments
for Subdivision, Combination or Consolidation of Common Stock"), Section
4(d)(vii) ("Adjustment for Other Distributions") or Section 4(d)(viii)
("Adjustments for Reclassification, Exchange, and Substitution") of Article IV
of the Restated Certificate.
4.2 Grant of Rights. Subject to the terms specified in this
Section 4, so long as a Stockholder holds not less than 125,000 shares of
Securities, the Company hereby grants to the Stockholders the right of first
refusal to purchase a portion of any issue of New Securities which the Company
hereafter may from time to time propose to issue and sell as shall maintain the
Stockholders' pro rata percentage ownership of the Company's capital stock. The
"pro rata" percentage ownership of a Stockholder is calculated by dividing (i)
the number of shares of Common Stock held by the Stockholder plus the total
number of shares of Common Stock issuable upon the conversion of all Preferred
Stock then held by the Stockholder (but excluding any Warrant Shares prior to
the exercise of such warrants) by (ii) the total number of shares of Common
Stock then outstanding, including shares issuable upon conversion of any
Preferred Stock (but excluding any Warrant Shares prior to the exercise of such
warrants).
4.3 Procedure.
(a) In the event the Company proposes to undertake an
issuance of New Securities, it shall give the Stockholders written notice of its
intention, describing the type of New Securities, the price and material terms
upon which the Company proposes to issue the same. A Stockholder shall have 20
calendar days from the date of receipt of any such notice to agree to purchase
up to its pro rata share of such New Securities for the price and upon the terms
specified in the Company's notice by giving written notice to the Company to
such effect and stating therein the quantity of New Securities to be purchased.
(b) The Company shall promptly, in writing, inform each
Stockholder electing to purchase its full pro rata share of such New Securities
(a "Fully-Exercising Stockholder") of any other Stockholder's failure to do
likewise. During the 15
16
calendar day period commencing after receipt of such information, each
Fully-Exercising Stockholder shall be entitled to purchase that portion of the
New Securities for which Stockholders were entitled to subscribe but which were
not subscribed for by the Stockholders which is equal to multiplying the total
number of unsubscribed New Securities by a fraction, the numerator of which is
the number of shares of Common Stock held by such Fully-Exercising Stockholder
plus the total number of shares of Common Stock issuable upon the conversion of
all Preferred Stock then held by such Fully-Exercising Stockholder (but
excluding any Warrant Shares prior to the exercise of such warrants), and the
denominator of which is the total number of shares of Common Stock owned by all
Fully-Exercising Stockholders, including shares issuable upon conversion of any
Preferred Stock held by Fully-Exercising Stockholders (but excluding any Warrant
Shares prior to the exercise of such warrants).
(c) If less than all of the New Securities are subscribed
for after the expiration of the 20 calendar day period referred to in Section
4.3(a), and (so long as there is at least one Fully Exercising Stockholder)
after the expiration of the additional 15 calendar day period referred to in
Section 4.3(b), the Company shall have 90 days thereafter to sell or enter into
an agreement to sell any New Securities not purchased by Stockholders exercising
their rights at a price and upon terms no more favorable to the purchaser than
the terms specified in the Company's notice to the Stockholders, after which 90
day period the Company shall not thereafter sell such New Securities without
first offering a portion to the Stockholders in accordance with this Section 4.
4.4 Termination of Rights. The rights granted under this Section 4
shall expire (a) as to all Stockholders, upon the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act covering the offer and sale of Common Stock for the
account of the Company to the public at an aggregate offering price of not less
than $15,000,000 and at a public offering price per share (prior to underwriter
commissions and expenses) that is not less than $6.95 (as adjusted for stock
splits, stock combinations and the like), and (b) as to any Stockholder if such
Stockholder fails to exercise its right to purchase its pro rata share of the
New Securities as provided in this Section 4, and such failure was not at the
written request of the Company; provided, however, that if a Stockholder is
prohibited from so purchasing its pro rata share of New Securities by reason of
the Investment Company Act of 1940, or the regulations promulgated thereunder,
such Stockholder's rights under this Section 4 shall not expire by reason of
clause (b).
5. Assignment of Rights. The right to cause the Company to register
Registrable Securities pursuant to Section 2 may be assigned (but only with all
related obligations) by a Holder to a transferee or assignee of at least 125,000
shares of such securities, provided the Company is, within a reasonable time
after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act. For the purposes of determining the number of shares
of Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants and
siblings of such
17
partners or spouses who acquire Registrable Securities by gift, will or
intestate succession) or other registered investment companies with a common
investment advisor shall be aggregated together and with the partnership;
provided that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under Section 2 or in receiving any information under Section 3.
6. Miscellaneous.
6.1 Amendment or Waiver. Any term of this Agreement may be amended
and the observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and Stockholders holding at least a majority of the
outstanding Registrable Securities provided, however, there shall be no
amendment of Section 2.2(c) or Section 2.6(a) without (a) the consent of the
holders of at least a majority of the Series 3, 4 and 5 Registrable Securities
and (b) until such time as the Sprout Group no longer holds any shares of the
Company's Series 3 Preferred Stock, the consent of the Sprout Group. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon all of the parties hereto and their successors and assigns, even if such
Stockholder did not consent in writing to such amendment or waiver.
6.2 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
6.3 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto, including certain side letters entered into by and
among the Company and certain Purchasers dated as of September 29, 2000 or of
even date herewith, together constitute the full and entire understanding and
agreement between the parties with respect to the subject hereof and they
supersede, merge, and render void any and all prior understandings and/or
agreements, written or oral, with respect to such subject matter.
6.4 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be conclusively deemed
effectively given upon personal delivery or delivery by a nationally recognized
overnight courier, or on the first business day after transmission if sent by
confirmed facsimile transmission, or five days after deposit in the United
States mail, by registered or certified mail, postage prepaid, addressed to the
Holders at their addresses shown on the records of the Company or, to the
Company, at its principal executive office, or at such other address as the
Company or any Holder shall hereafter furnish in writing.
6.5 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
18
6.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
6.7 Aggregation of Stock. All shares of the Company's Common
Stock, including Common Stock issued or issuable upon conversion of the
Company's Series 1 Preferred Stock, Series 2 Preferred Stock, Series 3 Preferred
Stock, Series 4 Preferred Stock and/or Series 5 Preferred Stock, held or
acquired by "affiliated" entities (as such term is defined in Rule 405 of the
Securities Act) shall be aggregated for the purpose of determining the
availability of any rights under this Agreement; provided that such affiliated
entities shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under Section 2 or in receiving
any information under Section 3.
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMPANY: ADEZA BIOMEDICAL CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
Address: 0000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
INVESTORS:
_________________________________________
[Print Full Name of Entity or Individual]
By: _________________________________
[Signature]
Name: _________________________________
[If signing on behalf of entity]
Title: _________________________________
[If signing on behalf of entity]
Address: ________________________________
________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INVESTORS: SPROUT GROUP (Venture Capital Affiliate of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx)
SPROUT CAPITAL VII, L.P.
By: /s/ Sprout Group
--------------------------------------
Title:____________________________________
SPROUT CEO FUND, L.P. SPROUT GROWTH II, L.P.
By: /s/ Sprout CEO Fund, L.P. By: /s/ Sprout Growth II, L.P.
------------------------------- --------------------------------------
Title:_____________________________ Title:____________________________________
DLJ CAPITAL CORP. DLJ FIRST ESC L.L.C.
By: /s/ DLJ Capital Corp. By: /s/ DLJ First ESC L.L.C.
------------------------------- --------------------------------------
Title:_____________________________ Title:____________________________________
PSI Affiliated Funds:
ROMAN ARCH FUND, L.P.
By: /s/ Roman Arch Fund, L.P.
-------------------------------
Title:_____________________________
PRUDENTIAL-BACHE CAPITAL PARTNERS II, L.P.
By: /s/ Prudential-Bache Capital Partners II, L.P.
----------------------------------------------
Title:____________________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INVESTORS: AENEAS VENTURE CORPORATION
By: /s/ Aeneas Venture Corporation
------------------------------------------
Title:___________________________________
ASPEN VENTURE PARTNERS, L.P.
By: /s/ Aspen Venture Partners, L.P.
------------------------------------------
Title:___________________________________
ASSET MANAGEMENT ASSOCIATES 1984, L.P.
By: /s/ Asset Management Associates 1984, L.P.
------------------------------------------
Title:___________________________________
ASSET MANAGEMENT ASSOCIATES 1989, L.P.
By: /s/ Asset Management Associates 1989, L.P.
------------------------------------------
Title:___________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INVESTORS: LANDMARK SECONDARY PARTNERS IX, L.P.
By: /s/ Landmark Secondary Partners IX, L.P.
----------------------------------------
Title:___________________________________
CHARTER VENTURES II, L.P.
By: /s/ Charter Ventures II, L.P.
----------------------------------------
Title:___________________________________
PANTHEON SECONDARY INTERESTS CELL
By: /s/ Pantheon Secondary Interests Cell
----------------------------------------
Title:___________________________________
STF II, L.P.
By: /s/ STF II, L.P.
----------------------------------------
Title:___________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
INVESTORS: ENTERPRISE PARTNERS V, L.P.
By: /s/ Enterprise Partners V, L.P.
------------------------------------------
Title:___________________________________
ALLIANCE TECHNOLOGY VENTURES III, L.P.
By: /s/ Alliance Technology Ventures III, L.P.
------------------------------------------
Title:___________________________________
K.B. (C.I.) NOMINEES, LTD.
By: /s/ K.B. (C.I.) Nominees, Ltd.
------------------------------------------
Title:___________________________________
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
