EXHIBIT 10.1
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "AGREEMENT")
is effective as of July 6, 2000 by and among DoubleTwist, Inc. (the "COMPANY")
and the holders of Preferred Stock listed on SCHEDULE A attached hereto (the
"INVESTORS").
RECITALS
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WHEREAS, on February 3, 1997, the Company entered into a Series B
Preferred Stock Warrant Purchase Agreement (the "SERIES B AGREEMENT") with and
issued shares of Series B Preferred Stock to the investors listed on EXHIBIT A
thereto;
WHEREAS, on February 3, 1997, the Company entered into an Investors'
Rights Agreement with the investors listed on SCHEDULE A thereto;
WHEREAS, on December 10, 1998, the Company entered into a Series C
Preferred Stock Purchase Agreement (the "SERIES C AGREEMENT") with and issued
shares of Series C Preferred Stock to the investors listed on EXHIBIT A thereto;
WHEREAS, in connection with the sale of the Company's Series C
Preferred Stock, the Company amended and restated the Investors' Rights
Agreement dated February 3, 1997 and entered into the Amended and Restated
Investors' Rights Agreement dated December 10, 1998;
WHEREAS, on February 18, 2000, the Company entered into a Series D
Preferred Stock Purchase Agreement (the "SERIES D AGREEMENT") with and issued
shares of Series D Preferred Stock to the investors listed on EXHIBIT A thereto;
WHEREAS, in connection with the sale of the Company's Series D
Preferred Stock, the Company amended and restated the Investors' Rights
Agreement dated December 10, 1998 and entered into the Amended and Restated
Investors' Rights Agreement dated February 18, 2000 (the "PRIOR RIGHTS
AGREEMENT");
WHEREAS, the parties to the Prior Rights Agreement desire to amend and
restate the Prior Rights Agreement for the purpose of including certain new
parties to the Agreement; and
WHEREAS, simultaneously herewith, the Company is entering into a Series
E Preferred Stock Purchase Agreement (the "SERIES E AGREEMENT") with and issuing
shares of Series E Preferred Stock to the investors named in EXHIBIT A thereto.
NOW THEREFORE, it is hereby agreed as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
(a) The term "ACT" shall mean the Securities Act of 1933, as
amended;
(b) The term "FORM S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the Securities and Exchange Commission (the "SEC") which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC;
(c) The term "HOLDER" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 3.12 hereof,
(d) The term "PREFERRED STOCK" shall mean the Series E Preferred
Stock, and Series D Preferred Stock, Series C Preferred Stock, Series B
Preferred Stock and any shares of Series A1 Preferred Stock held by KPCB Java
Fund, L.P., KPCB Life Sciences Zaibatsu Fund II, L.P. and Xxxxxxx Xxxxxxx
Xxxxxxxx & Xxxxx VIII, L.P.
(e) The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act and the declaration or ordering of
effectiveness of such registration statement or document;
(f) The term "REGISTRABLE SECURITIES" means (1) the Common Stock
issued or issuable upon conversion of the Series E Preferred Stock issued
pursuant to the Series E Preferred Stock issued pursuant to the Series E
Agreement, (2) the Common Stock issued or issuable upon conversion of the Series
D Preferred Stock issued pursuant to the Series D Agreement, (3) the Common
Stock issued or issuable upon conversion of the Series C Preferred Stock issued
pursuant to the Series C Agreement, (4) the Common Stock issued or issuable upon
conversion of the Series B Preferred Stock issued pursuant to the Series B
Agreement and issued upon exercise of the Warrants (as defined in the Series B
Agreement), (5) any Common Stock issued or issuable upon conversion of Series A1
Preferred Stock held by KPCB Java Fund, L.P., KPCB Life Sciences Zaibatsu Fund
II, L.P. and Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, L.P. and (6) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Preferred Stock
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or Common Stock, excluding in all cases, however, (i) any Registrable Securities
sold by a person in a transaction in which such person's rights under Section 3
are not assigned, or (ii) any Registrable Securities sold to or through a broker
or dealer or underwriter in a public distribution or a public securities
transaction;
(g) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities; and
(h) The term "RESTRICTED SECURITIES" shall mean the securities of
the Company required to bear the legend set forth in Section 2 hereof.
2. RESTRICTIVE LEGEND.
Each certificate representing the Preferred Stock and the Common Stock
issuable upon conversion thereof or any other securities issued in respect of
the Preferred Stock or the Common Stock issuable upon conversion thereof upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend in the
following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
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3. REGISTRATION RIGHTS.
3.1 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after the earlier of
(X) February 31, 2002 or (Y) the date 180 days after the effective date of the
Company's initial public offering, a written request from Holders holding (i) at
least 20% of the Registrable Securities then outstanding or (ii) any lesser
number of shares if the anticipated aggregate offering price would exceed
$15,000,000 that the Company file a registration statement under the Act
covering the registration of such Registrable Securities, then the Company
shall, within ten (10) days of the receipt thereof, give written notice of such
request to all Holders and shall, subject to the limitations of Section 3.1(b),
effect as soon as practicable, and in any event within 90 days of the receipt of
such request, the registration under the Act of all such Registrable Securities
which the Holders request to be registered within twenty (20) days of the
receipt of such written notice by the Company, PROVIDED, HOWEVER, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 3.1(a):
(i) during the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of (as determined by the
Company's Board of Directors in writing with such writing being delivered to the
Holders), and ending on the date 120 days immediately following the effective
date of, any registration statement pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
(ii) after the Company has effected two such registrations
pursuant to this Section 3.1(a), and such registrations have been declared or
ordered effective for the time specified in 3.3(a); or
(iii) if the Company shall furnish to such Holders a
certificate signed by the 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 or its stockholders for a registration statement to
be filed at such time, then the Company's obligation to use its best efforts to
register, qualify or comply under this Section 3.1(a) shall be deferred for a
period not to exceed 90 days from the date of receipt of written request from
the Holders; PROVIDED, HOWEVER, that the Company may not utilize this right more
than once in any twelve-month period under this Section or under Section
3.11(a)(3).
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(b) If the Holders initiating the registration request hereunder
(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 this Section 3.1 and the
Company shall include such information in the written notice referred to in
Section 3.1(a). In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section
3.3(e)) 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. Notwithstanding any other provision of this
Section 3.1, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and any shares to be so excluded shall be determined in the following sequence:
(i) first, securities held by any other persons or entities (other than Holders
holding Registrable Securities) not having registration rights or having
contractual, incidental "piggyback" rights to include such securities in the
registration statement, (ii) second, shares sought to be registered by the
Company, and (iii) third, the Registrable Securities sought to be registered by
each Holder on a pro rata basis in accordance with the total number of
Registrable Securities sought to be registered by the Holders.
3.2 COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any of its stock or
other securities under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, or a registration on
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after written notice by the Company, the
Company shall, subject to the provisions of Section 3.7, cause to be registered
under the Act all of the Registrable Securities that each such Holder has
requested to be registered.
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3.3 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 3
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to be declared or ordered effective, and keep such
registration statement effective until the earlier to occur of the sale of all
Registrable Securities under such registration statement or for ninety (90)
days.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
PROVIDED, HOWEVER, 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 except
in those jurisdictions in which the Company is already qualified or subject to
service of process.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriters of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement provided that such underwriting agreement
shall not provide for indemnification or contribution obligations on the part of
the Holders greater than the obligations set forth in Section 3.9(b) and (d).
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and
correct such misrepresentation or omission as expeditiously as reasonably
possible.
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(g) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Section 3, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 3, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten
registration public offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) if such
offering is being underwritten, 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.
(h) Cause all such Registrable Securities registered pursuant
hereunder to securities be listed on each securities exchange or the Nasdaq
National Market on which similar securities issued by the Company are then
listed.
(i) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(j) In connection with an underwritten offering, to the extent
requested by the managing underwriters or Holders, participate in and support
customary efforts to sell the Registrable Securities in the offering; including
without limitation, participating in "road shows."
3.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 3 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
3.5 EXPENSES OF DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with the
registration, filing or qualification pursuant to Section 3.1, including all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders shall be borne by the
Company; PROVIDED, HOWEVER, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 3.1 if the
registration request is subsequently withdrawn at the request of the Holders of
a majority of the Registrable Securities to be registered (in which case all
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participating Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their right to a demand
registration pursuant to Section 3.1; provide further, that if at the time of
such withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request, then the Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to Section 3.1.
3.6 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 3.2 for each Holder (which right may be assigned as provided
in Section 3.12), including all registration, filing, and qualification fees,
printers and accounting fees relating or apportionable thereto and the fees and
disbursements of one counsel for the selling Holders selected by them, but
excluding underwriting discounts and commissions relating to Registrable
Securities.
3.7 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 3.2 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it, and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters reasonably believe compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters believe will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders, PROVIDED, HOWEVER, the Holders shall
have the first right to include all of their shares in the offering before any
shares held by other selling stockholders) and in no event shall the shares held
by the selling Holders included in the offering be reduced below 25% of the
shares sold in any offering with the exception of the Company's initial public
offering. For purposes of apportionment, any selling stockholder which is a
Holder of Registrable Securities and 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 "selling
stockholder", and any pro rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount shares carrying
registration rights
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owned by all entities and individuals included in such "selling stockholder," as
defined in this sentence.
3.8 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; PROVIDED, HOWEVER, that the indemnity agreement contained
in this Section 3.9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other
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Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this Section 3.9(b), in connection with investigating or defending
any such loss, claim, damage, liability, or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this Section 3.9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld). In no event shall any indemnity under this
Section 3.9(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 3.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 3.9, but the omission to so deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 3.9.
(d) If the indemnification provided for in this Section 3.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss, claim
or liability in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of
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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 a court of law by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. In no event shall any contribution by a Holder
hereunder exceed the net proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under this
Section 3.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 3.9.
3.10 REPORTS UNDER THE SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
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by the Company and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
3.11 FORM S-3 REGISTRATION.
(a) If the Company shall receive from any Holder or Holders, a
written request or requests that the Company effect a registration on Form S-3
(or any comparable successor form) and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(ii) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 15 days after receipt of such written notice from the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 3.11: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the (net of any underwriters'
discounts or commissions) of less than $1,000,000; (3) if the Company shall
furnish to the Holders a certificate signed by the Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 90 days after receipt of
the request of Holder or Holders under this Section 3.11; PROVIDED, HOWEVER,
that the Company shall not utilize this right more than once in any twelve (12)
month period under this Section or under Section 3.1(a)(iii); (4) if the Company
has already effected two registrations on Form S-3 in any twelve (12) month
period for the Holders pursuant to this Section 3.11; or (5) 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 except in those jurisdictions in which
the Company is already qualified or subject to service of process.
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(b) If the Holders initiating the registration request hereunder
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 3.11 and the Company shall include such
information in the written notice referred to in Section 3.11(a)(i). In such
event, the right of any Holder to include his Registrable Securities in such
registration 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 Holders
initiating the registration request hereunder and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section
3.3(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Holders initiating the registration request hereunder.
Notwithstanding any other provision of this Section 3.11, if the underwriter
advises the Holders initiating the registration request hereunder in writing
that marketing factors require a limitation of the number of shares to be
underwritten, then the Holders initiating the registration request hereunder
shall so advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto and any shares to be so excluded shall be
determined in the following sequence: (i) first, securities held by any other
persons or entities (other than Holders holding Registrable Securities) not
having registration rights or having contractual, incidental "piggyback" rights
to include such securities in the registration statement, (ii) second, shares
sought to be registered by the Company, and (iii) third, the Registrable
Securities sought to be registered by each Holder on a pro rata basis in
accordance with the total number of Registrable Securities sought to be
registered by the Holders.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders and use its best efforts to keep such
registration statement effective until the registered shares are sold or for six
months, whichever comes first. All expenses incurred in connection with a
registration requested pursuant to Section 3.11, including all registration,
filing, qualification, printer's and accounting fees and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them, but
excluding any underwriters' discounts or commissions associated with Registrable
Securities, shall be borne by the Company. Registrations effected pursuant to
this Section 3.11 shall not be counted as registrations effected pursuant to
Section 3.1 or 3.2.
3.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 3 may be
assigned by a Holder to a transferee or assignee who acquires at least the
lesser of (i) all of such Holder's Registrable Securities or (ii) 500,000 shares
of Registrable Securities, provided
-13-
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. Notwithstanding the
above, such rights may be assigned or transferred by a Holder to a transferee or
assignee (regardless of the number of shares transferred or assigned) who is:
(a) a limited partner, general partner, former partner,
stockholder, unitholder or affiliate of a Holder or the beneficial owner of any
interest in Holder; or
(b) an investment fund to which MDS Capital Corp. provides
management or investment advisory services (an "MDS Fund"), whether or not such
MDS Fund was a Holder prior to such transfer or assignment, where the assignor
or transferor is an MDS Fund.
3.13 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 Sections 3.1 or 3.11 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 his securities will not reduce the amount of the Registrable
Securities of the Holders which is included, (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 Section 3.1(a) or within one
hundred twenty (120) days of the effective date of any registration affected
pursuant to Section 3.1 or (c) grant any registration rights superior to those
contained herein.
3.14 "MARKET STAND-OFF" AGREEMENT. Each holder of securities which are
or at one time were Registrable Securities (or which are or were convertible
into Registrable Securities) hereby agrees that, during a period not to exceed
180 days, following the effective date of a registration statement of the
Company filed under the Act unless otherwise consented by any underwriters, it
shall not, to the extent requested by the Company and such underwriter, sell or
otherwise transfer or dispose of any securities of the Company held by it at any
time during such period except Common Stock included in such registration;
PROVIDED, HOWEVER, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
-14-
(b) all officers, directors and 5% or greater stockholders of the
Company enter into similar agreements; and
(c) such agreement shall not be applicable to securities
acquired in the Company's initial public offering of its Common Stock or the
open market following the Company's initial public offering of its Common
Stock.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
3.15 TERMINATION OF REGISTRATION RIGHTS. No stockholder shall be
entitled to exercise any right provided for in this Section 3 after the five (5)
years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
initial firm commitment underwritten offering of its Common Stock.
4. RIGHT OF FIRST OFFER.
4.1 GRANT OF RIGHT. Subject to the terms and conditions specified in
this Section 4, the Company hereby grants to each Investor holding at least
100,000 shares of Registrable Securities a right of first offer with respect to
future sales by the Company of its Future Shares (as hereinafter defined). For
purposes of this Section 4, the term "Investor" includes any limited or general
partners, former limited or general partners, stockholders, unitholders or
affiliates of the Investor and any beneficial owners or any interest in the
Investor ("Others"). The right of first offer granted under this Section 4 is
assignable or transferable by an Investor:
(a) To any person or entity to whom either all, or not less than
500,000 of such Investor's Registrable Securities are transferred, or
(b) To any transferee which is an MDS Fund (where the transferor
is an MDS Fund), regardless of whether or not such transferee or assignee was a
Holder prior to such transfer or assignment and regardless of how many
Registrable Securities are transferred.
The Investor shall be entitled to apportion the right of first offer hereby
granted among itself and Others, and any such permitted transferees, in such
proportions as it deems appropriate.
4.2 FUTURE SHARES. "FUTURE SHARES" shall mean shares of any capital
stock of the Company, whether now authorized or not, and any rights, options or
warrants to purchase such capital stock, and securities of any type that are, or
may become,
-15-
convertible into such capital stock; PROVIDED, HOWEVER, that Future
Shares do not include (i) the shares of Series E Preferred Stock listed on
Exhibit A to the Series E Agreement and an additional 1,000,000 shares of Series
E Preferred Stock thereafter or the Common Stock issued or issuable upon the
conversion of the Series E Preferred Stock, (ii) any shares of Series D
Preferred Stock or the Common Stock issued or issuable upon the conversion of
the Series D Preferred Stock, (iii) any shares of Series C Preferred Stock or
the Common Stock issued or issuable upon the conversion of the Series C
Preferred Stock, (iv) any shares of Preferred Stock outstanding as of the date
of this Agreement or the Common Stock issued or issuable upon the conversion of
such Preferred Stock, (v) securities offered pursuant to a registration
statement filed under the Act, (vi) securities issued pursuant to the
acquisition of another corporation by the Company by merger of, purchase of
substantially all of the assets of or other reorganization, (vii) all warrants
to purchase shares of the Company's Common Stock or Preferred Stock outstanding
on February 1, 2000 and the shares issuable upon exercise of such warrants,
(viii) all shares of Common Stock, warrants or options to purchase Common Stock
or other securities issued to employees, officers, directors, scientific
advisors and consultants of the Company pursuant to any plan or arrangement
approved by the board of directors of the Company, (ix) all securities issuable
to lending or leasing institutions pursuant to any plan or arrangement approved
by the board of directors of the Company and (x) all securities issued or
issuable to licensors or corporate partners of the Company upon approval of the
board of director of the Company, if in transactions with primarily
non-financing purposes.
4.3 NOTICE. In the event the Company proposes to offer any of its
Future Shares, the Company shall first make an offering of such Future Shares to
each Investor in accordance with the following provisions:
(a) The Company shall deliver a notice in accordance with Section
8.2 hereof (the "NOTICE") to the Investors stating (i) its bona fide intention
to offer such Future Shares, (ii) the number of such Future Shares to be
offered, (iii) the price, if any, for which it proposes to offer such Future
Shares and (iv) subject to subsection (b) below, a statement as to the number of
days from receipt of such Notice within which the Investor must respond to such
Notice.
(b) Within 10 business days after receipt of the Notice, the
Investor or may elect to purchase or obtain, at the price and on the terms
specified in the Notice, up to that portion of the Future Shares offered which
equals the proportion that the number of shares of Common Stock issued and held,
or issuable upon conversion of Preferred Stock then held, by such Investor bears
to the total number of shares of Common Stock issued and held, or issuable upon
conversion of the Preferred Stock then held, by all Investors. The Company shall
promptly, in writing, inform each Investor that agrees to purchase all the
shares available to it (a "FULLY-EXERCISING INVESTOR") of any
-16-
other Investor's failure to do likewise. During the five-business-day period
commencing after receipt of such information, each Fully-Exercising Investor
shall be entitled to obtain that portion of the Future Shares for which
Investors were entitled to subscribe but which were not subscribed by the
Investors or other holders of similar rights of first refusal, which is equal to
the proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of Preferred Stock then held, by such Fully-Exercising
Investor bears to the total number of Common Stock issued and held, or issuable
upon conversion of the Preferred Stock then held, by all Fully-Exercising
Investors who wish to purchase some of the unsubscribed shares. The closing of
the sale of Future Shares by the Company to each Investor upon exercise of its
rights under this Section 4 shall take place simultaneously with the closing of
the sale of Future Shares to third parties.
4.4 SALE AFTER NOTICE. If all such Future Shares referred to in the
Notice are not elected to be obtained as provided in Section 4.3 hereof, the
Company may, during the 90-day period following the expiration of the period
provided in Section 4.3 hereof, offer the remaining unsubscribed Future Shares
to any person or persons at a price not less than, and upon terms no more
favorable to the offeree than those specified in the Notice. If the Company does
not enter into an agreement for the sale of the Future Shares within such
period, or if such agreement is not consummated within 90 days of the execution
thereof, the right provided hereunder shall be deemed to be revived and such
Future Shares shall not be offered unless first reoffered to the Investors in
accordance herewith.
4.5 TERMINATION OF RIGHTS. The rights provided for in this Section 4
shall terminate upon the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with the
initial firm commitment underwritten offering of its securities to the general
public.
5. RIGHT OF FIRST OFFER ON INITIAL PUBLIC OFFERING.
5.1 GRANT OF RIGHT. Subject to the terms and conditions specified in
this Section 5, any applicable laws and comments received by the Staff of the
SEC, the Company hereby grants to the holders of Series C Preferred Stock (the
"SERIES C HOLDERS") a right of first offer with respect to up to $10.0 million
of its securities offered pursuant to a registration statement filed by the
Company under the Act in connection with the initial firm commitment
underwritten offering of its securities to the general public (the "IPO
SECURITIES").
5.2 NOTICE.
(a) Within 10 business days of the date the Company first files a
registration statement under the Act in connection with the initial firm
commitment
-17-
underwritten offering of its securities to the general public, the Company shall
deliver a notice in accordance with Section 8.2 hereof (the "IPO NOTICE") to
each Series C Holder stating (i) the number and type of such securities to be
offered, (ii) the price for which it proposes to offer such securities and (iii)
subject to subsection (b) below, a statement as to the number of days from
receipt of the IPO Notice within which such Series C Holder must respond to the
IPO Notice.
(b) Subject to the dollar limitation set forth in Section 5.1,
within 5 business days after receipt of the IPO Notice, each Series C Holder may
elect to purchase or obtain, at the "Price to Public" and on the terms specified
in the IPO Notice, up to that portion of such IPO Securities which equals the
proportion that the number of shares of Common Stock issued and held, or
issuable upon conversion of the Series C Preferred Stock then held, by such
Series C Holder bears to the total number of shares of Common Stock issued and
held, or issuable upon conversion of the Series C Preferred Stock then held, by
all Series C Holders. The Company shall promptly, in writing, inform each Series
C Holder that elects to purchase all the IPO Securities available to it (a
"FULLY-EXERCISING HOLDER") of any other Series C Holder's failure to do
likewise. During the 5 business days period commencing after receipt of such
information, each Fully-Exercising Holder shall be entitled to obtain that
portion of the IPO Securities for which the Series C Holders were entitled to
subscribe but which were not subscribed for by such Series C Holders, which is
equal to the proportion that the number of shares of Common Stock issued and
held, or issuable upon conversion of the Series C Preferred Stock then held, by
such Fully-Exercising Holder to the total number of shares of Common Stock
issued and held, or issuable upon conversion of the Series C Preferred Stock
then held, by all Fully-Exercising Holders who wish to purchase some of the
unsubscribed IPO Securities. The sale of IPO Securities by the Company to each
Series C Holder upon exercise of its rights under this Section 5 shall take
place in accordance with the plan of distribution of the managing underwriter of
the offering.
5.3 SALE AFTER NOTICE. If all IPO Securities referred to in the IPO
Notice are not elected to be obtained as provided in Section 5.2 hereof, the
Company may sell those securities pursuant to the offering.
5.4 ASSIGNMENT. The right of first offer granted under this Section is
not assignable other than to:
(a) any limited or general partner, former limited or general
partner, stockholder, unitholder or affiliate of a Series C Holder or any
beneficial owner of any interest in a Series C Holder, or
(b) an MDS Fund (where the transferor is an MDS Fund), regardless
of whether or not such transferee or assignee was a Series C Holder prior to
such transfer or assignment and regardless of how many Series C Shares are
transferred.
-18-
6. INFORMATION RIGHTS.
6.1 DELIVERY OF FINANCIAL STATEMENTS. The Company will provide each
Investor the following reports for so long as the Investor is a holder of a
minimum of 100,000 shares of Registrable Securities (a "MAJOR INVESTOR"),
including for purposes of this Section 6 any such shares which have been
transferred to a constituent partner of an Investor:
(a) as soon as practicable after the end of each calendar year,
and in any event within 90 days thereafter, consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such calendar year, and
consolidated statements of income, stockholders' equity and cash flows of the
Company and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles on a basis consistent with prior years
and setting forth in each case in comparative form the figures for the previous
calendar year, all in reasonable detail and audited by independent "Big Five"
public accountants of national standing selected by the Company and reasonably
acceptable to the Investors.
(b) as soon as practicable after the end of each calendar month,
and in any event within thirty (30) days thereafter, a consolidated balance
sheet of the Company as of the end of each such month, and a consolidated
statement of income and a consolidated statement of cash flows of the Company
for such month and for the current fiscal year to date, including a comparison
to plan figures for such period, prepared in accordance with generally accepted
accounting principles consistently applied with the exception that no notes need
be attached to such statements and year-end audit adjustments need not have been
made, all in reasonable detail and certified by the Company's chief financial
officer;
(c) as soon as practicable prior to the end of each fiscal year,
and in any event no later than thirty (30) days prior thereto, a five-year
strategic business plan and operating budget (including a description of
intended uses of funds) for the Company and its subsidiaries, if any.
(d) promptly upon receipt thereof (and in any event within five
business days thereafter), the Company shall deliver to each Major Investor
copies of all management letters and reports submitted to the Company by
independent certified public accountants in connection with any annual, interim
or special audit of the Company made by such accountants.
6.2 OBSERVER RIGHTS. So long as the aggregate holdings of all MDS
Funds are not less than the holdings that would otherwise be required to
constitute a Major Investor, the Company will permit any one person identified
by any MDS Fund (the "OBSERVER") to attend all meetings of the Company's Board
of Directors and all
-19-
committees thereof (whether in person, telephonic or other) in a non-voting,
observer capacity and shall provide to the Observer, concurrently with the
members of the Board of Directors, and in the same manner, notices of such
meetings and copies of all materials provided to such members; PROVIDED,
HOWEVER, that the Observer shall agree to hold in confidence and trust all
information so provided.
6.3 BOARD MEETINGS. The Board of Directors shall meet at least once
every two months with at least one meeting per year held in Boston,
Massachusetts. The Company shall use its best efforts to ensure that its Chief
Executive Officer and senior vice-presidents are available for such meetings.
The Company shall promptly reimburse in full each director of the Company
elected by the Series C Holders (voting as a separate class) and each director
of the Company elected by the Series D Holders (voting as a separate class) and
the Observer for all of their reasonable out of pocket expenses incurred in
attending each meeting of the Board of Directors of the Company or any committee
thereof.
6.4 BOARD COMMITTEES.
(a) The Board of Directors shall establish and maintain a
Compensation Committee to administer the Company's employee stock plans,
including the 1996 Equity Incentive Plan, and to make recommendations to the
Board of Directors with respect to management compensation and terms of
employment. The Board of Directors shall have the power to accept or reject any
recommendation of the Compensation Committee but shall not approve compensation
for an employee in an amount that differs from the amount recommended by the
Compensation Committee. The Compensation Committee shall be comprised of at
least two (2) and no more than four (4) directors; PROVIDED, HOWEVER, that at
least one member of the Compensation Committee shall be a director elected by
the Series C Holders (voting as a separate class) and at least one shall be a
director elected by the Series D Holders (voting as a separate class).
(b) The Board of Directors shall establish and maintain an Audit
Committee to review the results and scope of the Company's annual audit and
other services provided by the Company's independent auditors. The Audit
Committee shall be comprised of at least two (2) and no more than four (4)
directors; PROVIDED, HOWEVER, that at least one member of the Audit Committee
shall be a director elected by the Series C Holders (voting as a separate class)
and at least one shall be a director elected by the Series D Holders (voting as
a separate class).
-20-
6.5 OPTION PLAN ADMINISTRATION.
(a) Unless otherwise agreed by the Board of Directors, any
options granted by the Company after the date of this Agreement to the Company's
founders, management, directors or consultants shall become exercisable at the
rate of 25% after the first anniversary of the date of grant and three
forty-eighths (3/48) each quarter thereafter, so long as the optionee continues
to be an employee, directors or consultant of the Company.
(b) The Board of Directors has amended the Company's form of
stock option agreement pursuant to the Company's 1996 Equity Incentive Plan to
provide that, as a condition precedent to the issuance of any shares of Common
Stock upon the exercise of an option granted pursuant to the Company's 1996
Equity Incentive Plan, the exercising option holder agrees to be bound by the
terms and conditions of the Company's Amended and Restated Co-Sale Agreement,
dated the date hereof.
6.6 TERMINATION OF COVENANTS. The covenants set forth in this Section
6 shall terminate as to Investors and be of no further force or effect when the
sale of securities pursuant to a registration statement filed by the Company
under the Act in connection with the firm commitment underwritten offering of
its securities to the general public is consummated.
7. AMENDMENTS TO PRIOR AGREEMENT; WAIVERS.
7.1 PRIOR INVESTORS' RIGHTS AGREEMENT. The Prior Rights Agreement is
hereby replaced and superseded in its entirety by this Agreement.
7.2 WAIVERS. The holders of the Series Al Preferred, Series B
Preferred, Series C Preferred and Series D Preferred hereby waive any rights
they may have pursuant to the Prior Rights Agreement to receive notice of the
issuance of or to purchase or otherwise acquire any shares of the Series E
Preferred and the Common Stock issuable upon conversion of such Series E
Preferred pursuant to the Series E Agreement.
8. MISCELLANEOUS PROVISIONS.
8.1 WAIVERS AND AMENDMENTS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the holders of at least a majority
of the then outstanding shares of Registrable Securities. Notwithstanding the
foregoing, to the extent any amendment or waiver would adversely affect any
particular class of the Company's securities, the written consent of at least a
majority of the then outstanding shares of Registrable Securities of that class
must be obtained to affect such amendment or waiver.
-21-
Any amendment or waiver effected in accordance with this Section 8.1 shall be
binding upon each person or entity which is granted certain rights under this
Agreement and the Company.
8.2 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and, except as otherwise noted herein,
shall be deemed effectively given upon personal delivery, delivery by fax with
confirmation of receipt, delivery by nationally recognized courier or five
business days after deposit with the United States Post Office (by first class
mail, postage prepaid), addressed: (a) if to the Company, at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000 (or at such other address as
the Company shall have furnished to the Investors in writing) attention to Chief
Executive Officer and (b) if to an Investor, at the address of such person shown
on Schedule A hereto.
8.3 DESCRIPTIVE HEADINGS. The descriptive headings herein have been
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provisions hereof.
8.4 GOVERNING LAW. This Agreement shall be governed by and interpreted
under the laws of the State of California as applied to agreements among
California residents, made and to be performed entirely within the State of
California.
8.5 ATTORNEY'S FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
8.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided in
this Agreement, this Agreement shall benefit and bind the successors, assigns,
heirs, executors and administrators of the parties to this Agreement.
8.7 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter of this Agreement.
8.8 SEPARABILITY; SEVERABILITY. Unless expressly provided in this
Agreement, the rights of each Investor under this Agreement are several rights,
not rights jointly held with any other Investors. Any invalidity, illegality or
limitation on the enforceability of this Agreement with respect to any Investor
shall not affect the validity, legality or enforceability of this Agreement with
respect to the other Investors. If any provision of this Agreement is judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not be affected or impaired.
-22-
8.9 STOCK SPLITS. All references to numbers of shares in this
Agreement shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the date of this Agreement.
8.10 AGGREGATION OF STOCK. All Registrable Securities (as applicable)
held or acquired by affiliated entities or persons of the Investors, shall be
aggregated for the purpose of determining the availability of any rights under
this Agreement.
8.11 SUBSEQUENT SALES. In the event that the Company shall conduct
subsequent sales of shares of Series E Preferred Stock pursuant to and in
accordance with the terms of Section 2.3 of the Series E Agreement, any
purchaser of such shares shall be deemed a Holder and an Investor with all of
the rights of a Holder and an Investor under this Agreement; provided that as a
condition thereto such Holder or Investor shall sign and deliver to the Company
a counterpart signature page to this Agreement.
8.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument, but only one of which
need be produced.
The foregoing Agreement is executed as of the date first above written.
COMPANY:
DOUBLETWIST, INC.
By: /s/ XXXX XXXXX
---------------------------------
Xxxx Xxxxx
Chief Executive Officer
MERLIN BioMED, L.P.
By: /s/
---------------------------------
Title:
-----------------------------
-23-
MERLIN BioMED II, L.P.
By: /s/
---------------------------------
Title:
-----------------------------
MERLIN BioMED INT'L, L.P.
By: /s/
---------------------------------
Title:
-----------------------------
PHARMA W/HEALTH
By: /s/
---------------------------------
Title:
-----------------------------
TAIB Funds, LTD
By: /s/
---------------------------------
Title:
-----------------------------
INVESTORS:
VENTRO CORPORATION
By: /s/
---------------------------------
Title:
-----------------------------
-00-
XXXXXX XXXXXXXXX PARTNERS LIMITED PARTNERSHIP
By: Xxxx Partners Limited Partnership
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: GENERAL PARTNER
-----------------------------
BOSTON MILLENNIA ASSOCIATES I PARTNERSHIP
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: GENERAL PARTNER
-----------------------------
-25-
INVESCO GLOBAL HEALTH SCIENCES FUND
By: /s/
--------------------------------
Title: TREASURER
----------------------------
-26-
XXXX FOREST VENTURES
By: /s/ XXXXX XXXXXXXXXX
-------------------------------
Title:
----------------------------
-27-
XXXXXXX X. XXXXXXX
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
-28-
STAR BAY PARTNERS, L.P.
By: APH Capital Management LLC
Its General Partner
By: Levensohn Capital Management LLC
Its Managing Member
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxxxx
Managing Member
-29-
BB BIOVENTURES L.P.
By: BAB BIOVENTURES L.P.
Its General Partner
By: BAB BIOVENTURES, N.V.
Its General Partner
By: /s/
----------------------------
Name:
--------------------------
Title:
-------------------------
MPM BIOVENTURES PARALLEL FUND, L.P.
By: MPM BIOVENTURES I L.P.
Its General Partner
By: MPM BIOVENTURES I LLC
Its General Partner
By: /s/
----------------------------
Name:
--------------------------
Title:
-------------------------
MPM ASSET MANAGEMENT
INVESTORS 200A LLC
By: /s/
----------------------------
Name:
--------------------------
Title:
-------------------------
-30-
XXXXXX FAMILY REVOCABLE TRUST
By: /s/ XXXXXXX XXXXXX
----------------------------
Title:
-------------------------
-31-
INSTITUTIONAL VENTURE PARTNERS VII, L.P.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Title: GENERAL PARTNER
--------------------------
INSTITUTIONAL VENTURE MANAGEMENT VII, L.P.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Title: GENERAL PARTNER
--------------------------
IVP FOUNDERS FUND I
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Title: GENERAL PARTNER
--------------------------
-00-
XXXXXXXX XXXX XXXXXX CASUALTY INSURANCE COMPANY
By: /s/ XXXXX XXXXX
-----------------------------
Title: Assistant Investment Manager,
Southern Farm Bureau, Casualty
Insurance Company
-33-
LONE BALSAM, X.X.
Xxxxx X. Xxxxx
Managing Director
Lone Pine Associates, LLC, General Partner
By: /s/ XXXXX X. XXXXX
------------------------------
LONE SEQUOIA, X.X.
Xxxxx X. Xxxxx
Managing Director
Lone Pine Associates, LLC, General Partner
By: /s/ XXXXX X. XXXXX
------------------------------
LONE SPRUCE, X.X.
Xxxxx X. Xxxxx
Managing Director
Lone Pine Associates, LLC, General Partner
By: /s/ XXXXX X. XXXXX
------------------------------
LONE CYPRESS, X.X.
Xxxxx X. Xxxxx
Managing Director
Lone Pine Associates, LLC, General Partner
By: /s/ XXXXX X. XXXXX
------------------------------
-00-
XXXXXXXX XXXX,
a California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C.
Its General Partner
By: /s/ A. XXXXX XXXXXXXX
------------------------------
Title: GENERAL PARTNER
---------------------------
XXXXXXXX ASSOCIATES FUND III,
a California Limited Partnership
By: Xxxxxxxx VIII Management, L.L.C.
Its General Partner
By: /s/ A. XXXXX XXXXXXXX
------------------------------
Title: GENERAL PARTNER
---------------------------
A. XXXXX XXXXXXXX III, TRUSTEE OF
PROPERTY TRUST UDT 5-31-84
By: /s/ A. XXXXX XXXXXXXX
------------------------------
Title: TRUSTEE
---------------------------
GENE TRUST
By: /s/ A. XXXXX XXXXXXXX
------------------------------
Title: TRUSTEE
---------------------------
-35-
THE HEALTHCARE AND BIOTECHNOLOGY VENTURE FUND
By: MDS Capital Corp.
Its Manager
By: /s/
------------------------------
Title:
---------------------------
MDS LIFE SCIENCES TECHNOLOGY
BARBADOS INVESTMENT TRUST
By: /s/
------------------------------
Title:
---------------------------
MDS LIFE SCIENCES TECHNOLOGY
FUND USA, L.P.
By: MDS Capital USA (GP) Inc.
Its General Partner
By: /s/
------------------------------
Title:
---------------------------
-36-
MDS LIFE SCIENCES TECHNOLOGY
FUND LIMITED PARTNERSHIP
By: MDS Life Sciences Technology Fund
(GP) Inc.
Its General Partner
By: /s/
------------------------------
Title:
---------------------------
-00-
XXXXX XXXXXXXXX
/s/ XXXXX XXXXXXXXX
--------------------------------
-38-
X. XXXX PRICE NEW HORIZONS FUND, L.P.
By: /s/
------------------------------
Title: PORTFOLIO MANAGER
---------------------------
X. XXXX PRICE HEALTH SCIENCES FUND, INC.
By: /s/
------------------------------
Title: PORTFOLIO MANAGER
---------------------------
GREEN LINE HEALTH SCIENCES FUND, L.P.
By: /s/
------------------------------
Title: PORTFOLIO MANAGER
---------------------------
-39-
AMERINDO TECHNOLOGY GROWTH FUND II, INC.
By: /s/ XXXX XXXXXX
------------------------------
Xxxx Xxxxxx
Xxxxxxxx
-00-
XXXXXXX XXXXXXXX
/s/ XXXXXXX XXXXXXXX
------------------------------
-41-
THE XXXXXXX AGBIO CAPITAL FUND
By: /s/ XXXX XXX
------------------------------
Title: MANAGING DIRECTOR
---------------------------
-42-
KPCB JAVA FUND
By: KPCB VIII Associates
By: /s/
------------------------------
Title:
---------------------------
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII, L.P.
By: KPCB VIII Associates
By: /s/
------------------------------
Title:
---------------------------
KPCB VIII FOUNDERS FUND, L.P.
By: /s/
------------------------------
Title:
----------------------------
KPCB LIFE SCIENCES ZAIBATSU
FUND II
By: KPCB VII Associates
By: /s/
------------------------------
Title:
---------------------------
-43-
EXHIBIT A
---------
LIST OF INVESTORS
Amerindo Technology Growth Fund II, Inc.
c/o Amerindo Investment Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Manizer
BB Bio Ventures LP
c/o MPM Capital Advisors LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Boston Millennia Partners Limited Partnership
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Boston Millennia Associates I Partnership
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
000 Xxxxxx Xxx
Xxxxx Xxxx, XX 00000
The Xxxxxxx Agbio Capital Fund
c/o Burill & Company
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxx
The Xxxxxx Family Revocable Trust
Xxxxx/West
000 Xxxx Xxxxxx Xxxxxx
0xx Xxxxx, Xxxxx X
Xxxxxxxx, XX 00000-0000
-44-
Attn: Xxxx Xxxxxx
Green Line Health Sciences Fund, Inc.
c/o X. Xxxx Price
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
The Health Care and Biotechnology Venture Fund
000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx Xxxxxx X0X 0X0
Attn: Xxxxxxx X. Xxxxxx
Institutional Venture Partners VII
0000 Xxxx Xxxx Xxxx, Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Institutional Venture Management VII
0000 Xxxx Xxxx Xxxx, Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Invesco Global Health Sciences Fund
0000 X Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx XxXxxxxx and Xxxx Schoerer
IVP Founders Fund I
0000 Xxxx Xxxx Xxxx, Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
KPCB Java Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
KPCB Life Sciences Zaibatsu Fund II, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
-45-
KPCB VIII Founders Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII, IL.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Lone Balsam, L.P.
x/x Xxxx Xxxx Xxxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Lone Cypress Limited
c/o Lone Pine Capital
0 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Lone Sequoia, L.P.
x/x Xxxx Xxxx Xxxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Lone Spruce, L.P.
x/x Xxxx Xxxx Xxxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Xxxxx Xxxxxxx
c/o Amerindo Investment Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx Xxxx, XX 00000
-00-
Xxxxxxxx XXXX, X.X.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: A. Xxxxx Xxxxxxxx, III
Xxxxxxxx Associates Fund III, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: A. Xxxxx Xxxxxxxx, III
MDS LIfe Sciences Technology Fund Limited Partnership
000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx Xxxxxx X0X 0X0
Attn: Xxxxxxx X. Xxxxxx
MDS Life Sciences Technology Fund USA, L.P.
000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx Xxxxxx X0X 0X0
Attn: Xxxxxxx X. Xxxxxx
MDS Life Sciences Technology Barbados Investment Trust
Ernst & Young Trust Corporation
X.X. Xxx 000, Xxxx Xxxx, Xxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx, W.I.
Attn: Xxxxx Xxxxxxxx
Merlin BioMed, L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxx
Xxxxxx BioMed II, L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxx
Merlin BioMed INT'L, LTD
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxx
-47-
PHARMA W/HEALTH
c/o Merlin BioMed
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxx
TAIB Funds, LTD
c/o Merlin BioMed
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxx
Mitsui & Co. (U.S.A.)
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx See
Xxxx Forest Venture
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
MPM Asset Management Investors 2000A LLC
c/o MPM Capital Advisors LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
MPM Bio Ventures Parallel Fund LP
c/o MPM Capital Advisors LLC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Star Bay Partners, L.P.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
-00-
Xxxxxxxx Xxxx Xxxxxx Casualty Insurance Company
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
X. Xxxx Price Xxxx Sciences Fund, Inc.
c/o X. Xxxx Price
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
X. Xxxx Price New Horizons Fund, Inc.
c/o X. Xxxx Price
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Xxxxx Xxxxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Ventro
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
-49-
