EXHIBIT 10.16
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement is
made and entered into as of the 11th day of October, 2001, by and among Animas
Corporation, a Delaware corporation (the "Company"), and the undersigned persons
or entities identified on the signature pages hereto.
WHEREAS, HLM Management Company, a Massachusetts corporation
("HLM"), Liberty Ventures I, L.P. and Liberty Ventures II, L.P., each a limited
partnership organized under the Delaware Revised Uniform Limited Partnership Act
and a Federal licensee under the Small Business Investment Act of 1958, as
amended, ("Liberty I" and "Liberty II," respectively, and together, "Liberty"),
Xxxxxxx & Xxxxxxx Development Corporation, a New Jersey Corporation ("JJDC" and,
together with HLM, Liberty and JJDC, the "Initial Series B Investors"), and
certain of the other persons and entities listed on the signature pages hereto
(each a "Series B Investor" and together with the Initial Series B Investors,
the "Series B Investors"), hold shares of the Company's Series B Preferred
Stock, par value $.01 per share (the "Series B Preferred Stock"), and possess
certain registration rights and other rights pursuant to that certain
Registration Rights Agreement dated January 22, 2001, by and among the Company
and the Series B Investors (the "Existing Registration Rights Agreement");
WHEREAS, HLM, Liberty, JJDC, Xxxxxxxxx Xxxxxxxx, an individual
residing in the Commonwealth of Pennsylvania ("X. Xxxxxxxx"), Xxxxxx Xxxxxxxx,
an individual residing in the Commonwealth of Pennsylvania ("X. Xxxxxxxx"),
Xxxxxxx Xxxxxx XX, an individual residing in the Commonwealth of Pennsylvania
("Xxxxxx"), Anvers L.P. and Anvers II L.P., each a limited partnership organized
under the laws of the State of Delaware, (together, "Anvers"), and U.S. Bancorp
Xxxxx Xxxxxxx ECM Fund II, LLC and U.S. Bancorp Xxxxx Xxxxxxx ECM Fund II,
Investors 03, each a limited partnership organized under the laws of the State
of Delaware, (together, "Xxxxx Xxxxxxx" and together with HLM, Liberty, JJDC, X.
Xxxxxxxx, G. Crothall, Graham, Anvers and Xxxxx Xxxxxxx, each individually, an
"Initial Series C Investor," and collectively, the "Initial Series C Investors")
are parties to a Series C Convertible Preferred Stock Purchase Agreement of even
date herewith (the "Series C Purchase Agreement"), pursuant to which the Company
has agreed to sell and issue to such Initial Series C Investors an aggregate of
1,281,762 shares at an Initial Closing (as defined therein), and such agreement
contemplating the sale of up to an additional aggregate of 718,238 shares at a
Subsequent Closing (as defined therein), of Series C Convertible Preferred
Stock, $.01 par value per share (the "Series C Preferred Stock") to the persons
that may execute the Series C Purchase Agreement in connection with the
Subsequent Closing and who shall, after the Initial Closing be listed on Annex I
thereto (each, individually an "Additional Series C Investor," and collectively
with the Initial Series C Investors, the "Series C Investors"), and in
connection therewith such Series C Investors desire to enter into this
Agreement;
WHEREAS, certain individuals and entities (the "Series A
Holders") are identified as "Investors" in that certain Investor Rights
Agreement, dated as of January 28, 2000, as amended and in effect on the date
hereof (the "Series A Investor Rights Agreement"), and
own shares of the Company's Series A Preferred Stock, $.01 par value per share
(the "Series A Preferred Stock");
WHEREAS, the Company and the Series A Holders have amended the
Series A Investor Rights Agreement to enable the Series B Investors and the
Series C Investors to receive certain registration and other rights under this
Amended and Restated Registration Rights Agreement which are superior to those
of the Series A Holders;
WHEREAS, the Series B Investors desire to amend and restate
the Existing Registration Rights Agreement as set forth herein; and
WHEREAS, the parties are willing to execute this Agreement and
to be bound by the provisions hereof.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the parties
hereby agree with each other as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, $.01 par value per
share, of the Company, as constituted as of the date of this Agreement.
"Company" shall have the meaning set forth in the preambles to
this Agreement.
"Conversion Shares" shall mean, collectively, the Series B
Conversion Shares and the Series C Conversion Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Holder" shall mean any Series B Investor or any Series C
Investor who holds Series B Preferred Stock, Series C Preferred Stock or
Registrable Securities, or any assignee of record of such Series B Preferred
Stock, Series C Preferred Stock or Registrable Securities in accordance with
Section 13(a) hereof.
"Initial Public Offering" shall mean the Company's first firm
commitment underwritten public offering of its Common Stock registered under the
Securities Act.
"Purchase Agreements" shall mean, collectively, the Series B
Purchase Agreement and the Series C Purchase Agreement.
"Registration Expenses" shall mean the expenses so described
in Section 8 hereof.
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"Registrable Securities" shall mean (i) the Conversion Shares
and (ii) any other securities issued with respect to the Conversion Shares by
way of dividends, stock splits, recapitalization, merger, consolidation or
reorganization. Registrable Securities does not include any of the above
securities which have been (a) registered under the Securities Act pursuant to
an effective registration statement filed hereunder and disposed of in
accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act. Further, no Holder shall be
entitled to exercise any rights provided for in Sections 4, 5 or 6 hereof after
such time as the Rule 144 exemption under the Securities Act is available for
the sale of all such Holder's shares during a three month period without
registration (other than pursuant to Rule 144(k)).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean the expenses so described in
Section 8 hereof.
"Series B Conversion Shares" shall mean any shares of Common
Stock issued or issuable upon conversion of the Series B Preferred Stock.
"Series B Purchase Agreement" shall mean that certain Series B
Convertible Preferred Stock Purchase Agreement dated January 22, 2001 by and
among the Company and the Series B Investors.
"Series C Conversion Shares" shall mean any shares of Common
Stock issued or issuable upon conversion of the Series C Preferred Stock or the
shares of Series C Preferred Stock issuable upon exercise of the Warrants.
"Series C Purchase Agreement" shall have the meaning set forth
in the preambles to this Agreement.
"Warrants" shall mean those warrants which may be issued to
the Initial Series C Investors in accordance with the terms and conditions of
the Series C Purchase Agreement, at the Subsequent Closing (as defined therein).
2. Restrictive Legend. Each certificate representing
Series B or Series C Preferred Stock or Registrable Securities shall, except as
otherwise provided in this Section 2 or in Section 3 hereof, bear a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER THAT ACT OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities being sold thereby may be publicly
sold without registration under the Securities Act.
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3. Notice of Proposed Transfer. Prior to any proposed
transfer of any Series B Preferred Stock or Series C Preferred Stock or
Registrable Securities, the Holder thereof shall give written notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel satisfactory to the Company to the
effect that the proposed transfer may be effected without registration under the
Securities Act, whereupon such Holder shall be entitled to transfer such stock
in accordance with the terms of this notice. Each certificate for Series B
Preferred Stock or Series C Preferred Stock or Registrable Securities
transferred as above provided shall bear the legend set forth in Section 2
hereof, except that such certificate shall not bear such legend if the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Company) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act. The restrictions provided for in this Section 3 shall not
apply to securities which are not required to bear the legend prescribed by
Section 2 hereof in accordance with the provisions of that Section.
4. Required Registration.
(a) At any time after the earlier of (i) the date after the
180th day after the date on which the Initial Public Offering shall have become
effective, and (ii) January 22, 2004: either (x) the Holders of at least fifteen
percent (15%) of the total Series B Conversion Shares then outstanding or, if
the Initial Public Offering shall not have been consummated, the Holders of at
least forty percent (40%) of the total Series B Conversion Shares then
outstanding (the "Series B Initiating Holder(s)"); or (y) the Holders of at
least fifteen percent (15%) of the total Series C Conversion Shares then
outstanding or, if the Initial Public Offering shall not have been consummated,
the Holders of at least forty percent (40%) of the total Series C Conversion
Shares then outstanding (the "Series C Initiating Holder(s)" and, together with
the Series B Initiating Holder(s), the "Initiating Holder(s)"), may request the
Company to register under the Securities Act all or any portion of the shares of
Registrable Securities held by such Initiating Holder(s) for sale in the manner
specified in such notice; provided, however, that the reasonably anticipated
aggregate offering price to the public of such Registrable Securities equals or
exceeds $15,000,000. For purposes of this Section 4 and Sections 5, 6, 13(a) and
13(d) hereof, the only securities which the Company shall be required to
register pursuant hereto shall be shares of Common Stock, and provided, however,
that, in any underwritten public offering contemplated by this Section 4 or
Sections 5 and 6 hereof, the holders of Series B Preferred Stock or Series C
Preferred Stock shall be entitled to sell such Series B Preferred Stock or
Series C Preferred Stock, as the case may be, to the underwriters for conversion
and sale of the shares of Common Stock issued upon conversion thereof.
(b) Following receipt of any notice under this Section 4, the
Company shall promptly notify (i) all Holders of Registrable Securities from
whom notice has not been received and (ii) Series A Holders, and shall use its
best efforts to register under the Securities Act, for public sale in accordance
with the method of disposition specified in such notice from the Initiating
Holder(s), the number of shares of Common Stock specified in such notice (and in
all notices received by the Company from other Holders and Series A Holders)
within 30 days after the giving of such notice by the Company), subject to the
limitations contained in Section 4(c)
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below. The number of shares of Common Stock to be registered pursuant to any
required registration under this Section 4 shall be allocated, as of the date of
the initial filing of the registration statement with the Commission, eighty
percent (80%) to the Holders (allocated pro rata among such Holders based upon
the number of shares of Common Stock initially sought to be registered by each
such Holder, or in such other manner as the Holders shall otherwise agree), and
twenty percent (20%) to the Series A Holders (allocated pro rata among such
Series A Holders based upon the number of shares of Common Stock initially
sought to be registered by each such Series A Holder, or in such other manner as
the Series A Holders shall otherwise agree). If such method of disposition shall
be an underwritten public offering, the holders of a majority of the shares of
Common Stock to be sold by the Holders in such offering may designate the
managing underwriter of such offering, subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed. The Company shall
be obligated to register Common Stock pursuant to this Section 4 on four
occasions only; provided, however, that the Series B Initiating Holder(s) may
only act as Initiating Holder(s) to effect two (2) registrations pursuant to
this Section 4, and the Series C Initiating Holder(s) may only act as Initiating
Holder(s) to effect two (2) registrations pursuant to this Section 4; provided,
further, however, that such obligation shall be deemed satisfied only when a
registration statement covering not less than seventy-five percent (75%)of the
shares of Registrable Securities owned by the Holders and included in the
initial filing of such registration statement with the Commission, for sale in
accordance with the method of disposition specified by the requesting holders,
shall have become effective.
(c) Notwithstanding any other provision of this Section 4 or
Section 6 hereof, if the underwriter advises the Company that marketing factors
require a limitation of the number of securities to be underwritten (including
Common Stock to be sold by Holders and Series A Holders) then the Company shall
so advise all participating Holders and all participating Series A Holders, and
the number of shares of Common Stock that may be included in the underwriting
and registration shall be allocated pro rata among each of the participating
Holders and each of the participating Series A Holders based on the number of
shares of Common Stock included in the initial filing of such registration
statement with the Commission; provided, however, that the number of shares of
Common Stock to be sold by Holders and Series A Holders in such underwriting and
registration shall not be reduced unless all other securities of the Company are
first entirely excluded from the underwriting and registration. Except for
registration statements on Form X-0, X-0 or any successor thereto, the Company
will not file with the Commission any other registration statement with respect
to its Common Stock, whether for its own account or that of other shareholders,
from the date of receipt of a notice from requesting holders with respect to an
underwritten public offering pursuant to this Section 4 until the completion of
the period of distribution of the registration contemplated thereby, unless the
underwriter managing such offering otherwise agrees.
(d) Notwithstanding the foregoing, if the Company shall
furnish to the Initiating Holders a certificate signed by the President of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, the Company is presently in good faith negotiations involving an
acquisition, financing or other significant transaction which would be
materially jeopardized by the filing of the registration statement and the
premature disclosure of such transaction in the registration statement or there
otherwise exists at the time material
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nonpublic information relating to the Company that, in the reasonable opinion of
the Company, should not be disclosed, and it is, therefore, essential to defer
the filing of such registration statement, then the Company shall have the right
to defer such filing for a period of not more than 90 days after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
utilize this right or the right set forth in Section 6(b)(2) below in the
aggregate more than once in any twelve-month period.
(e) In addition, the Company shall not be obligated to effect,
or to take any action to effect, any registration pursuant to this Section 4
during the period starting with the date when the Company notifies the Holders
pursuant to Section 5(a) hereof of the expected filing of a registration subject
to Section 5(a) hereof (but in no event earlier than the forty-fifth (45th) day
prior to the Company's good faith estimate of the date of filing of such
registration), and ending on a date one hundred eighty (180) days after the
effective date of such registration subject to Section 5 hereof (or such shorter
period following the effective date of such registration subject to Section 5
hereof as the managing underwriter(s) in such Section 5 registration requires
the Company and its directors to limit sales or other dispositions of Company
securities); provided that the Company is actively employing at all times in
good faith all reasonable efforts to cause such registration statement to become
effective.
5. Incidental Registration.
(a) If the Company at any time (other than pursuant to Section
4 or Section 6 hereof) proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms S-4 relating solely to a transaction consummated pursuant to
Rule 145 of the Securities Act, Form S-8 or another form not available for
registering the Registrable Securities for sale to the public), then the Company
shall notify all Holders of Registrable Securities in writing at least thirty
(30) days prior to the filing of any such registration (which notice shall
include the expected filing date of such registration statement) and will afford
each such Holder an opportunity to include in such registration statement all or
part of such Registrable Securities held by such Holder. Upon the written
request of any such Holder, received by the Company within twenty-five (25) days
after the giving of any such notice by the Company, to register any of its
Registrable Securities (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Registrable Securities as to which registration shall have been so requested to
be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent necessary to permit the
sale or other disposition by the Holder (in accordance with its written request)
of such Registrable Securities so registered.
(b) If a Holder decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company, such
Holder shall nevertheless continue to have the right to include any Registrable
Securities in any subsequent registration statement or registration statements
as may be filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein. In the event that any
registration pursuant to this Section 5 shall be, in whole or in part, an
underwritten public offering of Common Stock, the
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Company shall have the right to designate the managing underwriter of such
offering. In such event, the right of any Holder to be included in a
registration pursuant to this Section 5 shall be conditioned upon the Holder's
participation in the underwriting and acceptance of the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters). Notwithstanding
any other provision of this Agreement, if the underwriter determines in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, and if such registration involves the offering and sale of
newly-issued securities by the Company as to which securityholders may have
incidental or piggyback registration rights, then the number of shares that may
be included in the underwriting shall be allocated: first, to the Company;
second, to the Holders and to the Series A Holders pro rata based on the total
number of shares of Common Stock that each of the Holders and each of the Series
A Holders sought to include in such registration, as reflected in the
registration statement as initially filed with the Commission (or in such other
manner as the Holders and the Series A Holders shall otherwise agree); and
third, to any stockholder of the Company (other than a Holder or Series A
Holder) pro rata based upon the total number of shares of Common Stock that each
such stockholder sought to include in such registration, as reflected in the
registration statement as initially filed with the Commission (or in such other
manner as such other stockholders shall otherwise agree). Notwithstanding any
other provision of this Agreement, if the underwriter determines in good faith
that marketing factors require a limitation of the number of shares to be
underwritten, and if such registration involves a demand or S-3 registration
effected by the Series A Holders pursuant to the Series A Investor Rights
Agreement, then the number of shares that may be included in the underwriting
shall be allocated; first, to the Series A Holders as set forth in the Series A
Investor Rights Agreements; second, to the Holders pro rata based on the total
number of shares of Common Stock that each of the Holders sought to include in
such registration (or in such other manner as such Holders shall otherwise
agree); and third; to any stockholder of the Company (other than a Holder or a
Series A Holder) pro rata based upon the total number of shares of Common Stock
that each such stockholder sought to include in such registration (or in such
other manner as such stockholders shall otherwise agree). 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,
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration. For any
Holder which is a partnership or corporation, the partners, retired partners and
stockholders of such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "Holder," and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence. Other than the rights
previously granted to the Series A Holders, the Company shall not grant the
incidental rights described in this Section 5 to any holder of the Company's
securities other than the Series B Investors and Series C Investors.
(c) The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 5 prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration. The Registration Expenses of such withdrawn registration
shall be borne by the Company in accordance with Section 8 hereof.
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6. Registration on Form S-3.
(a) If at any time (i) the Holder or Holders of thirty percent
(30%) of the Registrable Securities then outstanding requests that the Company
file a registration statement on Form S-3 or any successor thereto for a public
offering of all or any portion of the shares of Registrable Securities held by
such requesting Holder or Holders, the reasonably anticipated aggregate price to
the public of which would exceed $1,000,000, and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register such
shares, then the Company shall use it best efforts to register under the
Securities Act on Form S-3 or any successor thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Registrable Securities specified in such notice. Whenever the
Company is required by this Section 6 to use its best efforts to effect the
registration of Registrable Securities, each of the procedures and requirements
of Section 4 (including but not limited to the requirement that the Company
notify all holders of Registrable Securities from whom notice has not been
received (and, if the requesting Holder(s) intend to distribute their
Registrable Securities by means of an underwritten offering, the Series A
Holders) and provide them with the opportunity to participate in the offering)
shall apply to such registration; provided, however, that, except as otherwise
expressly set forth in this Section 6, (i) there shall be no limitation on the
number of registrations on Form S-3 which may be requested and obtained under
this Section 6, and (ii) the requirements contained in the first sentence of
Section 4(a) shall not apply to any registration on Form S-3 which may be
requested and obtained under this Section 6. Registrations effected pursuant to
this Section 6 shall not be counted as demands for registration or registrations
effected pursuant to Section 4 or 5 hereof. After the Company's Initial Public
Offering, the Company will use its best efforts to qualify for the registration
of its shares of Common Stock on Form S-3. Notwithstanding the foregoing, the
Company shall not be required pursuant to this Section 6 to file more than one
registration statement on Form S-3 in any twelve-month period.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to effect any such registration or qualification pursuant to this
Section 6: (i) if Form S-3 is not available for such offering by the Holders;
(ii) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, the Company is presently in good faith negotiations
involving an acquisition, financing or other significant transaction which would
be materially jeopardized by the filing of the registration statement and the
premature disclosure of such transaction in the registration statement or there
otherwise exists at the time material nonpublic information relating to the
Company that, in the reasonable opinion of the Company, should not be disclosed,
in which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 90 days after receipt
of the request of the Holder or Holders under this Section 6; provided, however,
that the Company shall not utilize this right or the right set forth in Section
4(c) above, in this aggregate, more than once in any twelve month period; (iii)
in any particular jurisdiction in which the Company would be required to qualify
to do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance; or (iv) during the
period ending one hundred eighty (180) days after the effective date of a
registration statement subject to Section 5 (or such shorter period following
the effective date of such registration subject to Section 5 hereof as the
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managing underwriter(s) in such Section 5 registration requires the Company and
its directors to limit sales or other disposition of Company securities).
(c) If the Holders initiating the registration request under
this Section 6 intend to distribute the Registrable Securities covered by their
request by means of an underwriting, they shall so advise the Company as part of
their request made pursuant to this Section 6 and the Company shall include such
information in the written notice referred to in subsection 6(a). The
underwriter will be selected by a majority in interest of such initiating
Holders and shall be reasonably acceptable to the Company. In such event, the
right of any Holder to include its Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of such initiating
Holders and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. The number of shares of Common Stock to be
registered pursuant to any required registration under this Section 6 that
involves an underwritten public offering shall be allocated, as of the date of
the initial filing of the registration statement with the Commission, two-thirds
to the Holders (allocated pro rata among such Holders based upon the number of
shares of Common Stock initially sought to be registered by each such Holder, or
in such other manner as the Holders shall otherwise agree), and one-third to the
Series A Holders (allocated pro rata among such Series A Holders based upon the
number of shares of Common Stock initially sought to be registered by each such
Series A Holder, or in such other manner as the Series A Holders shall otherwise
agree). If such method of disposition under this Section 6 shall be an
underwritten public offering, the holders of a majority of the shares of Common
Stock to be sold by the Holders in such offering may designate the managing
underwriter of such offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld or delayed. Notwithstanding any
other provision of this Section 6, if the underwriter advises the participating
Holders and the participating Series A Holders and the Company in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all participating Holders and all
participating Series A Holders, and the number of shares of Common Stock that
may be included in the underwriting and registration shall be allocated pro rata
among each of the participating Holders and each of the participating Series A
Holders based on the number of shares of Common Stock included in the initial
filing of such registration statement with the Commission (or in such other
manner as such participating Holders and participating Series A Holders shall
otherwise agree); provided, however, that the number of shares of Common Stock
to be sold by Holders and Series A Holders in such underwriting shall not be
reduced unless all other securities are first entirely excluded from the
underwriting.
7. Registration Procedures. If and whenever the Company
is required by the provisions of Sections 4, 5 or 6 hereof to use its best
efforts to effect the registration of any shares of Registrable Securities under
the Securities Act, the Company will, expeditiously as reasonably practicable:
(a) prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain
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effective for the period of the distribution contemplated thereby (determined as
hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and related prospectus as may be
necessary to keep such registration statement effective for the period specified
in paragraph (a) above and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to
each underwriter such number of copies of the registration statement and related
prospectus (including each preliminary prospectus) as such persons reasonably
may request in order to facilitate the public sale or other disposition of the
Registrable Securities covered by such registration statement;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Registrable Securities or, in the case of an underwritten public offering, the
managing underwriter reasonably shall request to enable the public sale or other
disposition in such jurisdictions of the Registrable Securities;
(e) list the Registrable Securities covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Registrable Securities
and each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus contained
in such registration statement contains 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;
(g) if the offering is underwritten and at the request of any
seller of Registrable Securities, furnish on the date that Registrable
Securities is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion of counsel satisfactory to the seller stating that
such registration statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act and (C) to such other effects as reasonably may be requested by
counsel for the underwriters or by such seller or its counsel, and (ii) a letter
dated such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting
-10
requirements of the Securities Act, and such letter shall additionally cover
such other financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with respect to
such registration as such underwriters reasonably may request; and
(h) make available for inspection by each seller of
Registrable Securities, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant or other
agent retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any seller, underwriter, attorney, accountant or agent in
connection with such registration statement, provided that anyone receiving such
information pursuant to this paragraph 7(h) agrees to hold such information in
confidence.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the
period of distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until the earlier of (i)
the date each underwriter has completed the distribution of all securities
purchased by it or (ii) 90 days after the effective date thereof, and the period
of distribution of Registrable Securities in any other registration shall be
deemed to extend until the earlier (y) of the sale of all Registrable Securities
covered thereby and (z) 180 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Registrable Securities will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them and execute
such documents regarding the sale of the Registrable Securities as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4, 5
or 6 hereof covering an underwritten public offering, the Company and each
seller agree to enter into, and perform its obligations under, a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are customary in the securities
business for such an arrangement between such underwriter and companies of the
Company's size and investment stature.
8. Expenses. All expenses incurred by the Company in
complying with Sections 4, 5 and 6 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, costs of
insurance and fees and disbursements of one counsel for sellers of Registrable
Securities (up to a maximum of $20,000 per registration), but excluding any
Selling Expenses, shall be deemed "Registration Expenses." All underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities, and all fees and expenses of counsel, if any, other than the counsel
whose fees are included in Registration Expenses, shall be deemed "Selling
Expenses."
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The Company will pay all Registration Expenses in connection
with each registration statement under Sections 4, 5 and 6 hereof. All Selling
Expenses in connection with each registration statement under Sections 4, 5 and
6 hereof shall be paid by the participating sellers and the Company, to the
extent the Company shall be a seller pro rata on the basis of the number of
shares of Common Stock so registered.
9. Indemnification and Contribution.
(a) In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Sections 4, 5 or 6 hereof, the
Company will indemnify and hold harmless each seller of such Registrable
Securities thereunder and each of the partners, officers, directors and
stockholders, and each underwriter of such Registrable Securities thereunder and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which they 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) (i) 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 Securities
were registered under the Securities Act pursuant to Sections 4, 5 or 6 hereof,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, (ii) arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) arise out of any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law in connection with any such registration, and
will reimburse each such seller, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable to any seller in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission so made
in conformity with information furnished by any such seller in writing
specifically for use in such registration statement or prospectus, or any
amendment or supplement thereof.
(b) In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Sections 4, 5 or 6 hereof, each
seller of such Registrable Securities thereunder, severally and not jointly,
will indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the registration statement, each director of the Company, each
underwriter and each person who controls any underwriter within the meeting of
the Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities 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 the registration statement under
which such Registrable Securities was registered under the Securities Act
pursuant to Sections 4, 5 or 6 hereof, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or
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arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission made in reliance upon and in conformity
with information pertaining to such seller, as such, furnished in writing to the
Company by such seller specifically for use in such registration statement or
prospectus; and provided further, however, that the liability of each seller
hereunder shall be limited to the proceeds received by such seller from the sale
of Registrable Securities covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
indemnified party hereunder makes a claim for indemnification pursuant to this
Section 9 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 9 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such indemnified party hereunder or for which
indemnification is provided under this Section 9, then, and in each such case,
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, will
-13
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject to otherwise indemnifying the indemnified party (after
contribution from others) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact or the omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided, however, that, in any such case, (A) no Holder will be
required to contribute any amount in excess of the proceeds received by such
Holder from the sale of all such Registrable Securities covered by such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
10. Changes in Common Stock or Series B Preferred Stock
or Series C Preferred Stock. If, and as often as, there is any change in the
Common Stock or the Series B Preferred Stock or Series C Preferred Stock by way
of a stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock or the Series B Preferred Stock or Series C Preferred Stock as so changed.
11. 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 the Registrable Securities to the public without
registration, at all times commencing 90 days after the consummation of the
Company's Initial Public Offering, 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;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to each holder of Registrable Securities forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, 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 Commission allowing such holder to sell any Registrable Securities without
registration.
12. Representations and Warranties of the Company. The
Company represents and warrants as follows:
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(a) The execution, delivery and performance of this Agreement
by the Company has been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or Bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy and insolvency laws and by other laws affecting the rights
of creditors generally or by the availability of equitable remedies and except
as rights of indemnity or contribution may be limited by federal or state
securities or other laws or the public policy underlying such laws.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including,
without limitation, transferees of any Series B or Series C Preferred Stock or
Registrable Securities that has not been sold under a registration statement or
pursuant to Rule 144 under the Securities Act), whether so expressed or not.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or telexed, in the case of
non-U.S. residents, addressed as follows:
if to the Company or any Series B or Series C Investor, at the
address of such party set forth in the respective Purchase Agreements;
if to any subsequent holder of Series B or Series C Preferred
Stock or Registrable Securities, to it at such address as may have been
furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Series B or Series C
Preferred Stock or Registrable Securities) or to the holders of Series B or
Series C Preferred Stock or Registrable Securities (in the case of the Company)
in accordance with the provisions of this paragraph.
(c) The Company is a Delaware corporation and all matters
pertaining to its corporate governance and corporate finance shall be governed
by the Delaware General Corporation Law. Subject to the preceding sentence,
generally this Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the (i) Company,
(ii) Initial Series B Investors (as
-15
defined in this Agreement) holding at least sixty percent (60%) of the votes
entitled to be cast by the holders of the Series B Conversion Shares owned by
all such Initial Series B Investors, solely with respect to such Series B
Conversion Shares (iii) Initial Series C Investors (as defined in this
Agreement) holding at least sixty percent (60%) of the votes entitled to be cast
by the holders of the Series C Conversion Shares owned by all such Initial
Series C Investors, solely with respect to such Series C Conversion Shares and
(iv) the holders of a majority of the votes entitled to be cast by the holders
of the Registrable Securities then outstanding. Notwithstanding the foregoing,
this Agreement may be amended with only the written consent of the Company and
its subsidiaries to include additional purchasers of Registrable Securities as
"Series B Investors or Series C Investors," "Holders" and parties hereto in
accordance with the provisions hereof, except that a Holder may assign the
rights hereunder without such consent pursuant to the provisions set forth
herein.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) The obligations of the Company to register shares of
Registrable Securities under Sections 4, 5 and 6 hereof shall terminate on the
fifth anniversary of the consummation of the Company's Initial Public Offering.
(g) If requested in writing by the underwriters for the
Company's Initial Public Offering, each holder of Registrable Securities who is
a party to this Agreement shall agree not to sell publicly any shares of
Registrable Securities or other shares of Common Stock (other than shares of
Registrable Securities or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period of not more
than 180 days following the effective date of the registration statement
relating to such offering; provided, however, that all persons entitled to
registration rights with respect to shares of Common Stock who are not parties
to this Agreement, all other persons selling shares of Common Stock in such
offering and all executive officers and directors of the Company shall also have
agreed not to sell publicly their Common Stock under the circumstances and
pursuant to the terms set forth in this Section 13(g).
(h) So long as any of the registration rights under this
Agreement remain in effect, the Company shall not grant to any third party any
registration rights (i) which are more favorable than any of those contained
herein or (ii) which give such third party the right to require registration on
a basis concurrent with the Holders unless the relative priorities of the
respective registration rights are agreed to by the Holders.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
-16
(j) This Agreement (including the Exhibits hereto, if any)
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof and any previous agreement among
the parties relating to the subject matter hereof and thereof is superseded by
this Agreement, including, without limitation, the Existing Registration Rights
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Amended
and Restated Registration Rights Agreement as of the date and year set forth
above.
ANIMAS CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Title: President/CEO
LIBERTY VENTURES I, L.P.
By: Liberty Ventures, Inc.
Corporate General Partner
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
President
LIBERTY VENTURES II, L.P.
By: Liberty Venture Partners II, LLC,
its General Partner
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
Managing Director
XXXXXXX & XXXXXXX DEVELOPMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[Signatures continue on following page]
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HLM/UH FUND, L.P.
By: HLM/UH Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
(Officer)
HLM OPPORTUNITIES FUND, L.P.
By: HLM Opportunities Associates, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
(Officer)
HLM/CB FUND II, L.P.
By: HLM/CB Associates II, LLC
Its General Partner
By: HLM Management Co., Inc.
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
(Officer)
[Signatures continue on following page]
-19
U.S. BANCORP XXXXX
XXXXXXX ECM FUND II, LLC
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: /s/ Xxxx Xxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Administrative Member
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
XXXXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxxxxxx
---------------------------------
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
---------------------------------
ANVERS L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
[Signatures continue on following page]
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U.S. BANCORP XXXXX
XXXXXXX ECM FUND II, LLC
By: _____________________________
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: _____________________________
Name: Xxxx Xxxxxxxx
Title: Administrative Member
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxxx X. Xxxxxxxx, TTE
for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
-------------------------------------
Attorney-In-Fact for
Xxxxxxx X. Xxxxxx, V
ANVERS L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
[Signatures continue on following page]
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U.S. BANCORP XXXXX
XXXXXXX ECM FUND II, LLC
By: _____________________________
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: _____________________________
Name: Xxxx Xxxxxxxx
Title: Administrative Member
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
XXXXXXX XXXXXX, an individual
/s/ Xxxxxxx Xxxxxx
-------------------------------------
Attorney-In-Fact for
Xxxxx X. Xxxxxx
ANVERS L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
[Signatures continue on following page]
-22
U.S. BANCORP XXXXX
XXXXXXX ECM FUND II, LLC
By: _____________________________
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: _____________________________
Name: Xxxx Xxxxxxxx
Title: Administrative Member
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
_____________________________________
XXXXXXX XXXXXX, an individual
_____________________________________
ANVERS L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
[Signatures continue on following page]
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U.S. BANCORP XXXXX
XXXXXXX ECM FUND II, LLC
By: _____________________________
Name: Xxxx Xxxxxx
Title: Managing Member
U.S. BANCORP XXXXX XXXXXXX
ECM FUND II - INVESTORS 03
By: _____________________________
Name: Xxxx Xxxxxxxx
Title: Administrative Member
XXXXXXXXX XXXXXXXX, an individual
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------
TTE for Xxxxx Xxxxxxxx Trust
XXXXXX XXXXXXXX, an individual
_____________________________________
XXXXXXX XXXXXX, an individual
_____________________________________
ANVERS L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
[Signatures continue on following page]
-24
ANVERS II L.P.
By:_______________________, LLC
Its General Partner
By: _____________________________
Name:______________________
Title: ____________________
-25
