Exhibit 4.1
DRUGABUSE SCIENCES, INC.
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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OCTOBER 6, 1999
TABLE OF CONTENTS
Page
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SECTION 1 CERTAIN DEFINITIONS..............................................2
1.1 Commission...........................................2
1.2 Common Stock.........................................2
1.3 Conversion Shares....................................2
1.4 Exchange Act.........................................2
1.5 Founder..............................................2
1.6 Founder's Stock......................................2
1.7 Holder or Holders....................................2
1.8 Initiating Holders...................................2
1.9 Preferred Shares.....................................2
1.10 Register, registered and registration...............2
1.11 Registrable Securities..............................3
1.12 Registration Expenses...............................3
1.13 Restricted Securities...............................3
1.14 Securities Act......................................3
1.15 Selling Expenses....................................3
SECTION 2 RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT..............................................3
2.1 Restrictions on Transferability......................3
2.2 Restrictive Legend...................................4
2.3 Notice of Proposed Transfers.........................4
2.4 Request for Registration.............................5
2.5 Company Registration.................................7
2.6 S-3 Registrations....................................8
2.7 Expenses of Registration.............................9
2.8 Registration Procedures..............................9
2.9 Indemnification.....................................10
2.10 Information by Holder..............................12
2.11 Rule 144 Reporting.................................12
2.12 Assignment of Registration Rights..................12
2.13 Termination of Registration Rights.................13
2.14 Market Stand-Off Agreement.........................13
SECTION 3 AFFIRMATIVE COVENANTS OF THE COMPANY............................14
3.1 Financial Information...............................14
3.2 Inspection..........................................14
3.3 Reservation of Common Stock.........................15
3.4 Employment, Confidential Information and
Inventions Assignment Agreement..........................15
3.5 Use of Proceeds.....................................15
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3.6 Key-Man Insurance...................................15
3.7 Termination of Covenants............................15
SECTION 4 RIGHT OF FIRST REFUSAL..........................................15
4.1 Grant of Right......................................15
4.2 New Securities......................................16
4.3 Notice..............................................16
4.4 Sale After Notice...................................16
4.5 Assignment..........................................17
4.6 Termination.........................................17
SECTION 5 MISCELLANEOUS...................................................17
5.1 Governing Law.......................................17
5.2 Successors and Assigns..............................17
5.3 Entire Agreement....................................17
5.4 Amendment...........................................17
5.5 Notices.............................................18
5.6 Delay or Omissions..................................18
5.7 Counterparts........................................18
5.8 Severability........................................18
5.9 Aggregation of Stock................................18
5.10 Termination of Prior Agreement.....................18
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DRUGABUSE SCIENCES, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement is made
as of October 6, 1999 (the "Agreement") by and among DRUGABUSE SCIENCES, INC., a
California corporation located at 0000 X'Xxxxx Xxxxx, Xxxxx X, Xxxxx Xxxx,
Xxxxxxxxxx 00000 (the "Company"), the prior investors listed on Exhibit A to
this Agreement, (the "Prior Investor") and the individuals and entities listed
on Exhibit B to this Agreement (the "New Investors"). The Prior Investors and
the New Investors shall collectively be referred to herein as the "Investors."
RECITALS
WHEREAS, the Company and certain of the Investors are parties
to the Amended and Restated Investors' Rights Agreement, dated March 17, 1999
(the "Prior Agreement");
WHEREAS, the Company and certain of the Investors are parties
to the Series A Preferred Stock Purchase Agreement, dated August 30, 1994 (the
"Series A Agreement");
WHEREAS, the Company and certain of the Investors are parties
to the Series B Preferred Stock Purchase Agreement, dated March 28, 1997 (the
"Series B Agreement");
WHEREAS, the Company and certain of the Investors are parties
to the Series C Preferred Stock Purchase Agreement, dated March 17, 1999 (the
"Series C Agreement");
WHEREAS, the Company and certain of the Investors are parties
to the Series D Preferred Stock and Warrant Purchase Agreement of even date
herewith (the "Series D Agreement");
WHEREAS, certain of the New Investors are parties to the
Subscription Agreement (the "Subscription Agreement") of even date herewith
between the Company, DrugAbuse Sciences, S.A.S., a French corporation ("DAS
S.A.S.") and certain of the New Investors, whereby such certain New Investors
are purchasing shares of the capital stock of DAS S.A.S. that are exchangeable
into shares of the Company's Series D Preferred Stock pursuant to the terms of
the Exchange Agreement, dated of even date herewith (the "Exchange Agreement);
WHEREAS, in order to induce the Company to enter into the
Series D Agreement and to induce the Investors to invest funds in the Company
and DAS S.A.S. pursuant to the Series D Agreement and the Subscription
Agreement, the Investors and the Company hereby agree that this Agreement shall
govern the rights of the Investors to cause the Company to register shares of
Common Stock issuable to the Investors and certain other matters as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and the
promises and covenants contained herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1
CERTAIN DEFINITIONS
As used in this Agreement the following terms shall have the
following respective meanings:
1.1 ."COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
1.2 ."COMMON STOCK" shall mean the Common Stock of the
Company, as adjusted for any stock splits, stock dividends, reverse stock
splits, consolidations, recapitalizations and similar events.
1.3 ."CONVERSION SHARES" shall mean the Common Stock
issued or issuable upon conversion of the Series A Preferred Shares, Series B
Preferred Shares, Series C Preferred Shares and Series D Preferred Shares.
1.4 ."EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
1.5 ."FOUNDER" shall mean Philippe Pouletty.
1.6 ."FOUNDER'S STOCK" shall mean shares of Common Stock held
by the Founder or issuable to the Founder upon exercise of stock options.
1.7 ."HOLDER" or "HOLDERS" shall mean any person or
persons identified as an investor on Exhibit A or Exhibit B hereto who owns or
has the right to acquire Registrable Securities or any permitted transferees
thereof in accordance with Section 2.12 hereof; provided, however, that the
definition of "Holder" or "Holders" shall include the Founder only for purposes
of Sections 2.7, 2.8 and 2.9.
1.8 ."INITIATING HOLDERS" shall mean any Holders, or
permitted transferees of Holders under Section 2.12 hereof, who in the aggregate
hold not less than twenty-five percent (25%) of the outstanding Registrable
Securities in the case of a registration requested pursuant to Section 2.4
hereof.
1.9 ."PREFERRED SHARES" shall mean Series A Preferred
Shares, Series B Preferred Shares, Series C Preferred Shares, Series D Preferred
Shares (including such shares issued pursuant Section 1.4 of the Series D
Agreement in connection with the exchange of shares of the capital stock of DAS
S.A.S. into shares of Series D Preferred Stock of the Company pursuant to the
Exchange Agreement).
1.10 "REGISTER," "REGISTERED" and "REGISTRATION" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
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1.11 "REGISTRABLE SECURITIES" shall mean shares Common
Stock issued or issuable on conversion of the Series A Preferred Stock issued
pursuant to the Series A Agreement, Common Stock issued or issuable on
conversion of the Series B Preferred Stock issued pursuant to the Series B
Agreement, Common Stock issued or issuable on conversion of the Series C
Preferred Stock issued pursuant to the Series C Agreement, Common Stock issued
or issuable on conversion of the Series D Preferred Stock or Common Stock issued
pursuant to the Series D Agreement (including such shares of Series D Preferred
Stock or Common Stock issued pursuant to the Warrants to purchase Series D
Preferred Stock issued pursuant to the Series D Agreement and such shares issued
pursuant to Section 1.4 of the Series D Agreement in connection with the
exchange of shares of the capital stock of DAS S.A.S. into shares of Series D
Preferred Stock of the Company pursuant to the Exchange Agreement) and any
shares of aforementioned Common Stock issued or issuable in respect of such
Common Stock held by Investors upon any stock split, reverse stock split, stock
dividend, recapitalization, consolidation or similar event.
1.12 "REGISTRATION EXPENSES" shall mean all expenses
incurred in complying with registrations, filings or qualifications under
Sections 2.4, 2.5 and 2.6 hereof, including, without limitation, all
registration, qualification and filing fees, accounting fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company in its capacity
as counsel for the Holders, Blue Sky fees and expenses, the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company and Selling Expenses).
1.13 "RESTRICTED SECURITIES" shall mean the securities of the
Company required to bear the legend set forth in Section 2.2 hereof (or any
similar legend).
1.14 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
1.15 "SELLING EXPENSES" shall mean all underwriting discounts,
selling commission, and stock transfer taxes applicable to the sale.
SECTION 2
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT
2.1 RESTRICTIONS ON TRANSFERABILITY. The Founder's Stock,
Preferred Shares and the Conversion Shares shall not be transferable except upon
the conditions specified in this Section 2, which conditions are intended to
ensure compliance with the provisions of the Securities Act, or, in the case of
Section 2.14 hereof, to assist in an orderly distribution. Each Investor and
Founder will cause any proposed transferee of the Founder's Stock, Preferred
Shares and the Conversion Shares held by such Investor or Founder to agree to
take and hold such securities subject to the provisions and upon the conditions
specified in this Section 2 (including the "market stand-off" provisions of
Section 2.14).
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2.2 RESTRICTIVE LEGEND. Each certificate representing (i)
Founder's Stock, (ii) the Preferred Shares, (iii) Conversion Shares and (iv) any
other securities issued in respect of the Common Stock, Preferred Shares or
Conversion Shares or Founder's Stock issuable upon any stock split, reverse
stock split, stock dividend, recapitalization, consolidation or similar event,
shall (unless otherwise permitted by the provisions of Section 2.3 below) be
stamped or otherwise imprinted with a legend in substantially 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.
SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER 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 OFFICE.
2.3 NOTICE OF PROPOSED TRANSFERS. The holder of each
certificate representing Restricted Securities agrees to comply in all respects
with the provisions of this Section 2.3. Prior to any proposed transfer of any
Restricted Securities (unless there is in effect a registration statement under
the Securities Act covering the proposed transfer), the holder thereof shall
give written notice to the Company of such holder's intention to effect such
transfer. Each such notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and (except in transactions in
compliance with Rule 144) shall be accompanied by either (i) a written opinion
of legal counsel, which counsel shall be reasonably satisfactory to the Company,
addressed to the Company and reasonably satisfactory in form and substance to
the Company's counsel, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the Commission to the effect that the
transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Company. Each certificate evidencing the
Restricted Securities transferred pursuant to the above shall bear the legend
set forth in Section 2.2 above, except that such certificate shall not bear such
restrictive legend if, in the opinion of counsel for the Company, such legend is
not required in order to establish compliance with any provisions of the
Securities Act.
Notwithstanding the provisions of paragraph 2.3 above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by a Investor which is (A) a partnership to its partners or former partners in
accordance with partnership interests, (B) a corporation to its shareholders in
accordance with their interest in the corporation, (C) a limited liability
company to its members or former members in accordance with their interest in
the limited liability company, or (D) to the Investor's or Founder's family
member or trust for the benefit of an individual Investor or Founder,
respectively; PROVIDED that in each case the transferee will be subject to the
terms of this Agreement to the same extent as if he were an original Investor or
Founder, as the case may be, hereunder.
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2.4 REQUEST FOR REGISTRATION.
(a) REQUEST FOR S-1 REGISTRATION. In case the Company
shall receive from Initiating Holders a written request that the Company effect
a registration, with respect to at least ten percent (10%) of the Registrable
Securities pursuant to a Registration Statement on a Form S-1, or any lesser
percentage of the Registrable Securities if the estimated aggregate offering
price to the public of the Registrable Securities proposed to be registered
thereunder equals or exceeds $10,000,000, the Company will:
(i) promptly (and in any event within 10
days) give written notice of the proposed registration, qualification or
compliance to all other Holders; and
(ii) use best efforts to effect such
registration, qualification or compliance as soon as practicable, (including,
without limitation, appropriate qualification under applicable Blue Sky or other
state securities laws and appropriate compliance with applicable regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Registrable Securities as are
specified in such request in writing received by the Company within thirty (30)
days after receipt of such written notice from the Company; provided, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(A) In any particular jurisdiction
in which the Company would be required to execute a general consent to service
of process in effecting such registration, qualification or compliance unless
the Company is already subject to service in such jurisdiction and except as may
be required by the Securities Act;
(B) After the Company has effected
two (2) such registrations pursuant to this Section 2.4(a), and such
registrations have been declared or ordered effective;
(C) During the period starting with
the date sixty (60) days prior to the Company's estimated date of filing of, and
ending on the date six (6) months immediately following the effective date of,
any registration statement pertaining to securities of the Company pertaining to
a public offering (other than a registration of securities 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 and provided further that in the case of a registration of securities
in a Rule 145 transaction such period shall end on the date such transaction is
consummated;
(D) If the Company shall furnish to
such Holders a certificate signed by the President 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 shareholders for a registration statement to
be filed in the near future, then the Company's obligation to use best efforts
to register, qualify or comply under this Section 2.4 shall be deferred for a
period not to exceed one hundred twenty (120) days from the date of receipt of
written request from the
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Initiating Holders; provided, however, that the Company may not utilize
this right more than once in any twelve (12) month period; or
(E) Prior to April 30, 2001.
Subject to the foregoing clauses (A) through (E), the Company
shall file a registration statement covering the Registrable Securities so
requested pursuant to this Section 2.4(a) as soon as practicable after receipt
of the request or requests from Initiating Holders.
(b) UNDERWRITING. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to Section 2.4 and the Company shall include such information in the
written notice referred to in Section 2.4(a)(i). The right of any Holder to
registration pursuant to Section 2.4 shall be conditioned upon such Holder's
participation in such underwriting, and the inclusion of such Holder's
Registrable Securities in the underwriting shall be limited to the extent
provided herein.
The Company shall (together with all Holders and other parties
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders. Notwithstanding any other provision of this Section 2.4, if the
underwriters advise the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, the Initiating
Holders shall so advise all holders of Registrable Securities, and the
underwriter may limit the number of Registrable Securities to be included in the
registration and underwriting on a pro rata basis based on the total number of
securities (including, without limitation, Registrable Securities) entitled to
registration held by the Holders. The Company and/or the underwriters may, in
their sole discretion, round the number of securities offered hereunder to the
nearest 100 shares. No securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, the underwriters and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration; provided, however, that, if by the withdrawal of
such Registrable Securities a greater number of Registrable Securities held by
other participating Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
allocate such greater number of Registrable Securities to such Holders in
proportion, as nearly as practicable, to the respective amount of Registrable
Securities held by such participating Holders.
If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account or for the account of other shareholders of the Company in such
registration if the underwriter so agrees.
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2.5 COMPANY REGISTRATION.
(a) REGISTRATION. If at any time or from time to
time, the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or Holders exercising their
respective demand registration rights pursuant to Sections 2.4 and 2.6, other
than (i) a registration on Form S-8 (or a similar or successor form) relating
solely to employee stock option, stock purchase or other benefit plans, or (ii)
a registration on Form S-4 (or similar or successor form) relating solely to a
Securities and Exchange Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder or Founder
written notice thereof; and
(ii) offer to include in such registration
(and any related qualification under Blue Sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities and Founder's
Stock specified in a written request or requests, made within thirty (30) days
after mailing of written notice by the Company, by any Holder or Founder except
as set forth in Section 2.5(b) below; provided, however, that Registrable
Securities shall take priority over Founder's Stock as set forth below in
Section 2.5(b).
(b) UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 2.5(a)(i). In such event the right of any
Holder or Founder to registration pursuant to Section 2.5 shall be conditioned
upon such Holder's or Founder's participation in such underwriting and the
inclusion of such Registrable Securities or Founder's Stock in the underwriting
to the extent provided herein.
All Holders, including Founder, proposing to distribute their
securities through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.5, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the Registrable Securities and
other securities to be included in such registration. The Company shall so
advise all participating Holders, and the number of shares that may be included
in the registration and underwriting by all participating Holders, shall be
allocated among them, as nearly as practicable; first, to the Company (or, if
applicable, to the holders for whose account the Company is registering the
securities); second, among the Holders of Registrable Securities in proportion
to the respective amounts of Registrable Securities held by such Holders at the
time of filing of the registration statement; third, to the Founder; and fourth,
to any other shareholder of the Company. The number of securities includable by
any Holder or other person may, in the discretion of the underwriters, be
rounded to the nearest one hundred (100) shares. No securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
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If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
If the underwriter has not limited the number of such shares
to be underwritten for the Company's account and the account of the Holders, the
Company may include securities for the account of employees, officers, directors
and consultants.
(c) RIGHT TO TERMINATE REGISTRATION. The Company
shall have the right to terminate or withdraw any registration [initiated by the
Company under this Section 2.5 prior to the effectiveness of such registration
whether or not any Holder has elected to include Registrable Securities in such
registration.
2.6 S-3 REGISTRATIONS. If the Company is requested (and
qualifies under applicable SEC rules) by Holders to undertake a Form S-3 or
equivalent short-form registration, regardless of its designation, and any
related qualification or compliance, of its securities by the Holders of
Registrable Securities for an offering estimated to result in aggregate offering
proceeds of at least $1,000,000, net of underwriting discounts and commissions,
the Company shall promptly give notice of such proposed registration to all
Holders of Registrable Securities and the Company shall, as expeditiously as
possible, use all reasonable efforts to effect the registration on Form S-3 of
the Registrable Securities which the Company has been requested to register (i)
in such request and (ii) in any response given within thirty (30) days to a
notice from the Company pursuant to this Section 2.6. Notwithstanding the
foregoing, however, the Company shall not be required to effect more than one
such registration pursuant to this Section 2.6 in any twelve (12) month period.
The substantive provisions of Section 2.4(b) shall be applicable to each
registration initiated under this Section 2.6.
Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to this Section 2.6: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to such service in such
jurisdiction and except as may be required by the Securities Act; (ii) if the
Company, within ten (10) days of the receipt of the request of such Holders,
gives notice of its bona fide intention to effect the filing of a registration
statement with the Commission within ninety (90) days for a public offering (or
sixty (60) days in the case of a registration with respect to a Rule 145
transaction) of receipt of such request (other than with respect to a
registration statement relating to an employee benefit plan); (iii) during the
period starting with the date of filing of, and ending on the date three (3)
months (or the date a Rule 145 transaction is consummated in the case of a
registration relating to such transaction) immediately following the filing of a
registration statement for a public offering, the effective date of any
registration statement pertaining to securities of the Company (other than a
registration of securities 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; or (iv) if the Company
shall furnish to such Holder a certificate signed by the President 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 shareholders for
registration statements to be filed in the near future, then the Company's
obligation to use all reasonable efforts to file a registration statement shall
be deferred for a
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period not to exceed one hundred twenty (120) days from the receipt of the
request to file such registration by such Holder, provided, however, that the
Company may not utilize the right set forth in this clause (iv) more than
once in any twelve (12) month period.
The Company may include in the registration under this Section
2.6 any other shares of Common Stock (including issued and outstanding shares of
Common Stock as to which the holders thereof have contracted with the Company
for "piggyback" registration rights pursuant to Section 2.5 hereof or any other
similar agreement) so long as the inclusion in such registration of such shares
will not, in the opinion of the managing underwriter (or in the reasonable
opinion of the Company in the event that the offering is not underwritten),
interfere with the successful marketing in accordance with the intended method
of sale or other disposition of all the shares of Registrable Securities sought
to be registered by the Holder or Holders of Registrable Securities pursuant to
this Section 2.6. If it is determined as provided above that there will be such
interference, the other shares of Common Stock sought to be included by the
Company shall be excluded to the extent deemed necessary by the managing
underwriter (or the Company if the offering is not underwritten), and all other
shares of Common Stock held by other parties shall be excluded before the
exclusion of any shares of Registrable Securities held by the Holders who desire
to have their shares included in the registration and offering. If, as
contemplated above, and after excluding all other shares of Common Stock held by
other parties, shares of the Common Stock of the Holders are to be excluded, the
number of shares of Common Stock of each participating Holder which are to be
excluded shall be proportionate to the number of shares which such party is
seeking to register. Registrations effected pursuant to this Section 2.6 shall
not be construed as registrations effected pursuant to Section 2.4 or 2.5.
2.7 EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to each of Sections 2.4, 2.5 and 2.6 shall be borne by the Company; and
all Selling Expenses relating to securities registered by the Holders, shall be
borne by the Holders of such securities pro rata on the basis of the number of
shares so registered.
2.8 REGISTRATION PROCEDURES. In the case of each
registration, qualification or compliance effected by the Company pursuant to
this Section 2, the Company will keep each Holder advised in writing as to the
initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) Prepare and file with the SEC a registration
statement with respect to such securities and use reasonable efforts to cause
such registration statement to become and remain effective for at least ninety
(90) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs; and
(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 Securities Act with respect to the disposition of all
securities covered by such registration statement for the period set forth in
paragraph (a) above.
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(c) Furnish to each Holder participating in the
registration such number of registration statements, preliminary prospectuses,
final prospectuses and such other documents as such Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities being sold by such Holder.
(d) Use its reasonable 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 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.
(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 underwriter(s) of such offering. Each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(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 Securities 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.
2.9 INDEMNIFICATION.
(a) The Company will, and does hereby undertake to,
indemnify and hold harmless each Holder, each of its officers, directors and
partners, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Section 2, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
and liabilities (or actions in respect thereof), including settlement of any
litigation, commenced or threatened, to which they may become subject under the
Securities Act, the Exchange Act, or other federal or state law, arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus (preliminary or final),
offering circular or other document or amendments thereto, or arising out of or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or arising
out of any violation by the Company of any federal, state or common law rule or
regulation applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers, directors
and partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or
10
alleged untrue statement or omission, made in reliance upon and in conformity
with written information furnished to the Company by an instrument executed
by such Holder, or underwriter expressly for use in connection with such
registration.
(b) Each Holder, severally and not jointly, will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify and hold harmless the Company, each of its directors and officers,
agents and employees, each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act, and
each other such Holder, each of its officers, directors and partners and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof to which they may become subject under the
Securities Act, the Exchange Act, or other federal or state law) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus (preliminary or
final), offering circular or other document or amendments thereto, or rising out
of or based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, and will
reimburse the Company, such Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument executed by such Holder expressly for
use in connection with such registration; provided, however, that the
obligations of such Holders hereunder shall be limited to an amount equal to the
net proceeds to each such Holder from the sale of such Registrable Securities or
Founder's Stock as contemplated herein and shall be proportionate to such
Holder's relative fault.
(c) Each party entitled to indemnification under this
Section 2.9 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall deliver written notice to the Indemnifying Party of
commencement thereof. The Indemnifying Party, at its sole option, may
participate in or assume the defense of any such claim or any litigation
resulting therefrom with counsel reasonably satisfactory to the Indemnified
Party, and the Indemnified Party may participate in such defense at Indemnified
Party's expense. The failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 2 except to the extent that such failure to give notice shall materially
adversely affect the Indemnifying Party in the defense of any such litigation.
No Indemnifying Party, in the defense of any such claim or litigation shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term a release from all liability in respect to such claim or litigation by the
claimant or plaintiff to such Indemnified Party.
11
2.10 INFORMATION BY HOLDER. Each Holder whose Registrable
Securities and Founder whose Founder's Stock is included in any registration
shall furnish to the Company such information regarding such Holder or Founder
and the distribution proposed by such Holder or Founder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 2.
2.11 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 Restricted Securities to the public without
registration, after such time as a public market exists for the Common Stock of
the Company, the Company agrees to use all reasonable efforts to:
(a) Make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times after the effective date the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange 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 (at any time after it has become subject to such reporting
requirements); and
(c) Furnish to each Holder, so long as such Holder
owns any Registrable Securities, and to the Founder, so long as the Founder owns
any Founder's Stock, written notice of the Company's qualification as a
registrant, as soon as practicable after such qualification; the Company further
shall furnish forthwith upon request a written statement as to its compliance
with the reporting requirements of said Rule 144 (at any time after ninety (90)
days after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of its
compliance with the Securities Act and the Securities Exchange Act (at any time
after it has become subject to such reporting requirements); the Company shall
provide forthwith upon written request a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company as Purchaser may reasonably request in availing itself of any rule or
regulation of the Commission allowing Purchaser to sell any such securities
without registration.
2.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register securities and related rights granted each Holder
and the Founder under Section 2 may not be assigned except: (i) to a transferee
who acquires more than 25,000 Conversion Shares or Preferred Shares convertible
into more than 25,000 shares of Common Stock from a Holder (a "Permitted
Transferee"), (ii) to a successor entity to a Holder pursuant to a
reorganization or recapitalization of a Holder, (iii) to the partners or
affiliates of a Holder including entities directly or indirectly controlled by,
or directly or indirectly controlling, or under the direct or indirect control
of an entity directly or indirectly controlling an Investor; (iv) to all
investment funds, in whatever form, which are managed directly or indirectly by
an Investor or managed directly or indirectly by an entity, which is controlled
directly or indirectly by, or directly or indirectly controlling, or under the
direct or indirect control of an entity directly or indirectly controlling an
Investor; or (v) from an investment fund to its members upon dissolution. Each
holder agrees to give the Company notice within twenty (20) days following such
assignment and to cause the transferee to agree in writing to be bound by the
provisions hereof.
12
2.13 TERMINATION OF REGISTRATION RIGHTS. The registration
rights and related rights granted pursuant to Section 2 shall terminate as to
each Holder or Founder (and permitted transferee under Section 2.12 above) upon
the occurrence of any of the following:
(a) With respect to each individual investor,
following the Company's first registered offering to the public of its Common
Stock, at such time as all Registrable Securities held by such Holder or Founder
or permitted transferee both (i) constitute less than one percent (1%) of the
then outstanding Common Stock of the Company and (ii) can be sold within a given
three (3) month period without compliance with the registration requirements of
the Securities Act pursuant to Rule 144 (or its successor provision); or
(b) Seven (7) years from the date of the Company's
first registered offering of Common Stock to the public.
2.14 "MARKET STAND-OFF" AGREEMENT.
(a) Any Holder or Founder, if required by the Company
and an underwriter of Common Stock (or other securities) of the Company, shall
agree not to sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder or Founder during the period not
to exceed one hundred and eighty (180) days as requested by the managing
underwriter following the effective date of the first registration statement of
the Company filed under the Securities Act. Such agreement shall be in writing
in a form satisfactory to the Company and such underwriter. The Company may
impose a stop-transfer instruction with respect to the shares (or other
securities) subject to the foregoing restriction until the end of such period.
(b) Notwithstanding the foregoing, if the Company's
initial public offering is made on other than a United States market or
exchange, a Holder need not agree to a market stand-off as set forth in Section
2.14(a) above but instead shall execute a letter agreement substantially in the
form attached hereto as EXHIBIT 2.14, if, as of the date hereof and as of the
date of closing of such public offering, a Holder's global, internal policy
prohibits such Holder from executing a market stand-off and market regulations
for the market, on which the offer is made, do not require a market stand-off.
SECTION 3
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
3.1 FINANCIAL INFORMATION. The Company will mail the
reports described in paragraphs (a), (b) and (c) below to (i) each Investor and
Permitted Transferee for so long as such Investor and such Permitted Transferee
holds , or has the right to acquire pursuant to the terms of the Exchange
Agreement, at least 300,000 Conversion Shares, or Preferred Shares convertible
into at least 300,000 Conversion Shares, and (ii) to each Investor who holds or
has the right to acquire pursuant to the Exchange Agreement, shares of Series D
Preferred Stock and, on the date hereof, holds or has the right to acquire
pursuant to the Exchange Agreement at least 300,000 Conversion Shares or
Preferred Shares convertible into at least 300,000 Conversion
13
Shares. All Conversion Shares held or acquired by affiliated or related
entities or persons shall be aggregated together for the purpose of
determining the rights of Investors and Permitted Transferee pursuant to this
Section 3.1.
(a) As soon as practicable after the end of each
fiscal year, and in any event within ninety (90) days thereafter, consolidated
balance sheets of the Company and its subsidiaries, if any, as of the end of
such fiscal year, and consolidated statements of operations and cash flows of
the Company and its subsidiaries, if any, for such year, prepared in accordance
with generally accepted accounting principles and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and audited by independent public accountants of national standing
selected by the Company; and
(b) As soon as practicable after the end of the first
three quarters of each year, and in any event within forty-five (45) days
thereafter, unaudited statements of operations and cash flows for such quarter
and the year to date, and an unaudited balance sheet as of the end of such
quarter, prepared in accordance with generally accepted accounting principles
(other than for accompanying notes), subject to changes resulting from year-end
audit adjustments, setting forth in each case in comparative form the figures
for the same period for the previous fiscal year, all in reasonable detail and
signed by the principal financial or accounting officer of the Company; and
(c) As soon as practicable at the end of each month
unaudited monthly financial statements and annual budgets all in reasonable
detail including revenue, expenses liabilities, cash flow statements and balance
sheet.
3.2 INSPECTION. The Company shall permit (i) each
Investor or Permitted Transferee, its attorney or its other representatives, for
so long as such Investor or such Permitted Transferee is a holder of, or has the
right to acquire pursuant to the terms of the Exchange Agreement, at least
300,000 Conversion Shares or Preferred Shares convertible into at least 300,000
Conversion Shares and (ii) to each Investor who holds or has the right to
acquire pursuant to the Exchange Agreement, shares of Series D Preferred Stock
and, on the date hereof, holds or has the right to acquire pursuant to the
Exchange Agreement at least 300,000 Conversion Shares or Preferred Shares
convertible into at least 300,000 Conversion Shares, respectively, to visit and
inspect the Company's properties, to examine the Company's books of account and
other records, to make copies or extracts therefrom and to discuss the Company's
affairs, finances and accounts with its officers, management employees and
independent accountants, all at such reasonable times and as often as such
Investor may reasonably request; provided, however, that the Company shall not
be obligated pursuant to this Section 3.2 to provide trade secret or proprietary
information or to provide information to any person who the Company reasonably
believes is a competitor of the Company. All Conversion shares held or acquired
by affiliated or related entities or persons shall be aggregated together for
the purpose of determining the rights of Investors and Permitted Transferee
pursuant to this Section 3.2.
3.3 RESERVATION OF COMMON STOCK. The Company will at all
times reserve and keep available, solely for issuance and delivery upon the
conversion of the Preferred Stock, all shares of Common Stock issuable from time
to time upon such conversion.
14
3.4 EMPLOYMENT, CONFIDENTIAL INFORMATION AND INVENTIONS
ASSIGNMENT AGREEMENT. The Company shall require all employees and consultants to
execute and deliver an Employment, Confidential Information and Inventions
Assignment Agreement in substantially the form attached to the Purchase
Agreement
3.5 USE OF PROCEEDS. The Company agrees to use the
proceeds from this financing for the strategic business of the Company pursuant
to the guidelines as set forth in the information memo previously provided to
Purchaser and Purchaser's counsel.
3.6 KEY-MAN INSURANCE. Within 60 days of the Closing the
Company shall use its best efforts to provide key-man life insurance on the life
of Philippe Pouletty in the amount of $5 million and to maintain such key-man
life insurance, provided the Board of Directors of the Company determines that
the annual premium is reasonable.
3.7 TERMINATION OF COVENANTS. The covenants set forth in
Section 3 shall terminate at such time as the Company is required to file
reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended.
SECTION 4
RIGHT OF FIRST REFUSAL
4.1 GRANT OF RIGHT. The Company hereby grants to each
Investor who holds, or has the right to acquire pursuant to the terms of the
Exchange Agreement, Conversion or Preferred Shares the right of first refusal to
purchase up to such Investor's Pro Rata Share (as hereinafter defined) of the
New Securities (as defined in Section 4.2) which the Company may, from time to
time, propose to sell and issue. The Investors may purchase said New Securities
on the same terms and at the same price at which the Company proposes to sell
the New Securities. The "Pro Rata Share" of each Investor, for purposes of this
right of first refusal, is the ratio that (x) the sum of the number of shares of
Common Stock which such Investor holds (or has the right to acquire pursuant to
the Exchange Agreement) plus the number of shares of Common Stock issuable upon
conversion of the Preferred Shares which Investor then holds (or has the right
to acquire pursuant to the Exchange Agreement) bears to (y) the sum of the total
number of shares of Common Stock then outstanding (including the number of
shares of Common Stock issuable upon conversion of then outstanding Preferred
Shares, but excluding any shares of Common Stock issuable upon exercise of
outstanding options, warrants or other rights) plus the number of shares of
Common Stock issuable upon conversion of the Series D Preferred Stock which is
issuable upon exchange of the capital stock of DAS S.A.S. pursuant to the
Exchange Agreement.
4.2 NEW SECURITIES. "New Securities" shall mean any capital
stock of the Company, whether now authorized or not, and any rights, options or
warrants to purchase said capital stock, and securities of any type whatsoever
that are, or may become, convertible into said capital stock; provided, however,
that "New Securities" does not include (i) securities offered pursuant to a
registration statement filed under the Securities Act, (ii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets or other reorganization, (iii)
securities issued pursuant to any
15
convertible securities, options or warrants outstanding on the date hereof,
(iv) shares of Common Stock (or options therefor) hereafter issued or
issuable to officers, directors, employees or consultants of the Company
pursuant to any employee or consultant stock offering, plan or arrangement
approved by the Board of Directors of the Company, (v) securities issued to
vendors or customers of the Company approved by the Board of Directors and
(vi) shares issued to a strategic corporate partner if approved by the Board
of Directors.
4.3 NOTICE. In the event the Company proposes to undertake an
issuance of New Securities, it shall give to the Investors written notice (the
"Notice") of its intention, describing the type of New Securities, number of
shares, the price, the terms upon which the Company proposes to issue the same,
and a statement as to the number of days from receipt of such Notice within
which the Investors must respond to such Notice. The Investor shall have thirty
(30) days from the date of such Notice to purchase up to its Pro Rata Share of
the New Securities for the price and upon the terms specified in the Notice by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased and forwarding payment for such New Securities to the
Company if immediate payment is required by such terms, or in any event no later
than thirty (30) days after the date of receipt of the Notice.
4.4 SALE AFTER NOTICE. In the event the Investors fail to
exercise in full the right of first refusal within said thirty (30) day period,
the Company shall have sixty (60) days thereafter to sell or enter into an
agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within thirty (30 days from the date of said agreement) to
sell the New Securities respecting which the Investors' rights were not
exercised, at a price and upon general terms no more favorable than specified in
the Notice. In the event the Company has not sold the New Securities within said
sixty (60) day period (or sold and issued New Securities in accordance with the
foregoing within thirty (30) days from the date of said agreement), the Company
shall not thereafter issue or sell any New Securities without first offering
such securities to the Investors in the manner provided above.
4.5 ASSIGNMENT. The right of first refusal granted under this
Section 4 is assignable by the Investor to any transferee of a minimum of 25,000
shares of Common Stock (including any shares of Common Stock into which shares
of Preferred Stock then held by it are convertible).
4.6 TERMINATION. The rights of Investors under this Section 4
shall terminate upon the earlier of (i) with respect to each Investor, that
point in time when such Investor owns less than 25,000 shares of Common Stock
(including any shares of Common Stock into which shares of Preferred Shares then
held by it are convertible), (ii) the closing of the initial underwritten public
offering of the Common Stock, or (iii) the occurrence of the merger or
consolidation of the Company into, or the sale of all or substantially all of
the Company's assets to another corporation, unless the shareholders of the
Company shall own at least 51% of the capital stock of such other corporation
immediately after such merger, consolidation or sale.
16
SECTION 5
MISCELLANEOUS
5.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
5.3 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
5.4 AMENDMENT. 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 sixty-seven
percent (67%) of the then-outstanding Registrable Securities (including, for
purposes of this Section 5.4, Registrable Securities issuable upon exchange of
the capital stock of DAS S.A.S pursuant to the Exchange Agreement) provided,
however, that the rights granted the Founder under this Agreement may not be
adversely affected without the consent of such Founder. For purposes of the
foregoing clause, the granting of additional registration rights by the Company
to any holder or prospective holder of the Company's shares shall not be deemed
to adversely affect the rights granted Founder under this Agreement. Any
amendment or waiver effected in accordance with this Section 5.4 shall be
binding upon all Holders of Registrable Securities of the Company.
5.5 NOTICES. Whenever any party hereto desires or is required
to give any notice, demand, or request with respect to this Agreement, each such
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (i) upon personal delivery to the party to be
notified, (b) when sent by confirmed telecopy or other facsimile if sent during
normal business hours of the recipient; if not, then on the next business day,
or (c) upon receipt if delivered by FedEx or other internationally recognized
overnight courier or delivery service, with written verification of such
delivery; in each case, addressed as indicated on the signature pages hereof. If
sent by telecopy and other facsimile transmission, a conformed copy of such
notice shall be sent by FedEx or other internationally recognized overnight
courier or delivery service, specifying the earliest possible delivery (in the
manner provided above) to the addressee. Any party may change its address for
such communications by giving notice thereof to the other parties in conformity
with this Section. Nothing contained in this Section or otherwise in this
Agreement shall excuse any party from giving oral telephonic notice when prompt
notification is appropriate, but any oral telephonic notice which is so given
shall not satisfy the requirement of written notice as specified in this
Section.
5.6 DELAY OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any holder of any Restricted Securities upon
any breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such holder nor
17
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Any waiver, permit, consent or approval of any kind or character on the part
of any holder of any breach or default under this Agreement, or any waiver on
the part of any holder of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement, or by law
or otherwise afforded to any holder, shall be cumulative and not alternative.
5.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which together shall constitute one instrument,
and each of which may be executed by less than all of the parties to this
Agreement.
5.8 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
5.9 AGGREGATION OF STOCK.. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
5.10 TERMINATION OF PRIOR AGREEMENT. The Prior Agreement is
hereby terminated and superseded in its entirety by this Agreement.
18
The foregoing agreement is hereby executed as of the date first above
written.
DRUGABUSE SCIENCES, INC.
a California corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx, Ph.D.
Title: President and CEO
FOUNDER:
/s/ Philippe Pouletty
--------------------------------
Philippe Pouletty
Address: 00 Xxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
INVESTORS:
/s/ X. Xxxxx
-----------------------------
XXXXXX XXXXX
Address: B.W. Xxxxxxxxxxxxxx 00
XX-0000, Xxxxxx, Xxxxxxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------
XXXXX XXXXX
Address: x/x Xxxx Xxxxxxxx
Xxx Xxx Xxxxxxxxx
XX-0000, Xxxxxx, Xxxxxxxxxxx
CDC INNOVATION
By: /s/ Raffy Kazandijan
-------------------------
Raffy Kazandijan
Title: General Manager
-----------------------
Address: Tour Maine - Montparnasse
00 Xxxxxx xx Xxxxx - X.X. 000
00000 Xxxxx Cedex 15 France
FINANCIERE DE BRIENNE
By: /s/ Edwige Xxxxx
--------------------------
Print Name: Edwige Xxxxx
Title: President
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
Address: 2 Place Rio de Janeiro - B.P. 1808
75362 Xxxxx Xxxxx 00 Xxxxxx
XXXXXX X. XXXXXXX, TTE XXXXXXX
1988 REVOCABLE TRUST, U/A
11/17/1988
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Print Name: Xxxxxx X. Xxxxxxx
------------------
Title: Trustee
----------------------
Address: Sequoia Capital
0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxx 0
Xxxxx Xxxx, Xxxxxxxxxx 00000
/s/ X X Xxxxxxx
-----------------------------
XXXXXX X. XXXXXXX
Address: Sequoia Capital
0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxx 0
Xxxxx Xxxx, Xxxxxxxxxx 00000
NOMURA INTERNATIONAL PLC
By: /s/ Kozo Yamazoe
-------------------------
Print Name: Kozo Yamazoe
Title:
---------------------
Address: Xxxxxx Xxxxx
0 Xx. Xxxxxx'x-xx-Xxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
PARNIB BELGIE N.V.
By: /s/ Piet Serrure
--------------------------
Print Name: Piet Serrure
Title: Managing Director
Address: Xxxxxxxxxxxxxxxxx 00/00
0000 Xxxxxxxxx, Xxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
PARTECH ENTITIES:
AXA US GROWTH FUND
By: /s/ Xxxxxxx Worms
------------------------------
Print Name: Xxxxxxx Worms
Title: Managing Member
----------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PARALLEL CAPITAL I LLC
By: /s/ Xxxxxxx Worms
-------------------------------
Print Name: Xxxxxxx Worms
Title: Managing Member
----------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PARALLEL CAPITAL II LLC
By: /s/ Xxxxxxx Worms
-------------------------------
Print Name: Xxxxxxx Worms
Title: Managing Member
----------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
MULTINVEST LIMITED
By: /s/ Xxxxxxx Worms
-----------------------------
Print Name: Xxxxxxx Worms
Title: General Partner
---------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
TRADEINVEST LIMITED
By: /s/ Xxxxxxx Worms
-----------------------------
Print Name: Xxxxxxx Worms
Title: Advisor
---------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PARVEST EUROPE INVESTMENT II C.V.
By: /s/ Xxxxxxx Worms
-----------------------------
Print Name: Xxxxxxx Worms
Title: General Partner
---------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
PARVEST U.S. PARTNERS II C.V.
By: /s/ Xxxxxxx Worms
-----------------------------
Print Name: Xxxxxxx Worms
Title: General Partner
----------------------------
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx Worms
-----------------------------
XXXXXXX WORMS
Address: 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
AURIGA GESTION
AURIGA VENTURES FCPR
By: /s/ Xxxxxxx Daugeras
-----------------------------
Print Name: Xxxxxxx Daugeras
Title: Duly Mandated
---------------------------
Address: 00, xxxxxx Xxxxxxxx
00000 Xxxxx, Xxxxxx
XX XXXXXX (SUISSE) S.A.
By: /s/ Xxxx Xxxx /s/ Gian Legoratto
---------------------------------------------
Print Name: Xxxx Xxxx Gian Legoratto
-------------------------------------
Title: Vice President Associate
------------------------------------------
Address: Post Office Box 5160
1211 Xxxxxx 00, Xxxxxxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
/s/ Xxxxxx Xxxxxxx
--------------------------------------------------
XXXXXX XXXXXXX
Address: x/x Xxxx Xxxxxxxxx
Xxx Xxx Xxxxxxxxx
XX-0000 Xxxxxx, Xxxxxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------------------
XXXXXXXXX XXXXXXXX
Address: Bye-Ways
0 Xxxxxxx Xxxx Xxxx
Xx. Xxxxxxx Xxxxxx
Xxxxxxx XX00
/s/ Philippe Pouletty
--------------------------------------------------
PHILIPPE POULETTY
Address: 00 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxx Xxxxx
--------------------------------------------------
XXXX XXXXX
Address: 00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
/s/ Xxxxxxxxxxx Xxxxxxxx
--------------------------------------------------
XXXXXXXXXXX XXXXXXXX
Address: c/x Xxxxxxxx Brothers, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
[pk]9999
/s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------------
XXXXXXXX XXXXXXXX
Address: c/x Xxxxxxxx Brothers, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------------
XXXXXXX XXXXXXXXX
Address: 000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
XXXXXX X. XXXXXX
Address: 000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxxx Xxxxx
--------------------------------------------------
XXXXXXXX X. XXXXX
Address: 00000 Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
3i GROUP PLC
By: /s/ Nomos - duly mandated
--------------------------------------------------
Print Name: Xxxxxxx Xxxxxxx
Title: Directeur General Adjoint
Address: 00 Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
ABN-AMRO VENTURE FRANCE
FRANCE INNOVATION 1 fcpi
By: /s/ Dominique Agrech
----------------------------------------
Print Name: Dominique Agrech
Title: Duly mandated
--------------------------------------
Address: 00, xxx Xxxxxx
00000 Xxxxx, Xxxxxx
FRANCE INNOVATION 2 FCPI
By: /s/ Dominique Agrech
----------------------------------------
Print Name: Dominique Agrech
Title: Duly mandated
--------------------------------------
Address: 00, xxx Xxxxxx
00000 Xxxxx, Xxxxxx
CAPITAL INVESTMENTS BELGIE N.V.
By:
----------------------------------------
Print Name: Xxxx Xxxxxxxx
Title:
--------------------------------------
Address: AMB Amro
X.X. Xxx 000
0000 XX Xxxxxxxxx, Xxxxxxxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
XXXXXX XX XXXXXXXXXX ASSET MANAGEMENT
ACTYS II FCPR
By: /s/ Pierre-Xxxx Xxxxxxx
----------------------------------------
Print Name: Pierre-Xxxx Xxxxxxx
Title: duly mandated
--------------------------------------
Address: 00 xxx xx Xxxxxxxx Xxxxx Xxxxxx
00000 Xxxxx, Xxxxxx
CROISSANCE DISCOVERY FCPR
By: /s/ Pierre-Xxxx Xxxxxxx
----------------------------------------
Print Name: Pierre-Xxxx Xxxxxxx
Title: duly mandated
--------------------------------------
Address: 00 xxx xx Xxxxxxxx Xxxxx Xxxxxx
00000 Xxxxx, Xxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
SOCIETE GENERAL ASSET MANAGEMENT
SGAM INNOVATION 1
By:
-------------------------------------------
Print Name: Xxxxxxxx Xxxxxx
Title: President
Address: 0, Xxxxx xx xx Xxxxxxx
00000 Xxxxx La defense, France
SOGE INNOVATION
By:
-------------------------------------------
Print Name: Xxxxxxxx Xxxxxx
Title: President
Address: 0, Xxxxx xx xx Xxxxxxx
00000 Xxxxx La defense, France
--------------------------------------------------
XXXXX XXXXXXXXX
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
/s/ XXXX-XXXX XXXXXX
--------------------------------------------------
XXXX-XXXX XXXXXX, M.D.
Address: 00 Xxx Xxxxx
00000 Xxxxx Xxxxxxxx, Xxxxxx
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
JACQUES POULETTY
--------------------------------------------------
Address: 0 Xxxx xxx Xxxxxx
Xxxxx 00000, Xxxxxx
--------------------------------------------------
XXXX XXXXXXXX POULETTY
Address: 00 Xxxxxx Xxx Xxxxxxx xx Xxxxxx
00 000 Xxx Xxx Xxxxx, Xxxxxx
ALAIN & XXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
--------------------------------------------------
XXXXX XXXXXXX
Address: 00 Xxxxx xx xx Xxxxxxxxxxx
00000 Xx Xxxxxxx, Xxxxxx
UMB BANK, TRUSTEE FOR THE
XXXXXXX PHLEGER & XXXXXXXX LLP
RETIREMENT SAVINGS PLAN
FBO XXXXXX X. XXXXXXX
By:
---------------------------------------------
Print Name:
-------------------------------------
Title:
------------------------------------------
Address: Attn. Xxxxxxx Xxxxxx
UMB Bank of Kansas City
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
----------------------------------------------
XXXXXXX XXXXXXX
Address: 0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
XXXXXX X. AND XXXXXXXXX X. XXXXXX TRUST 11/22/85
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Trustee
Address: 0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
SIGNATURE PAGE TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
EXHIBIT A
FOUNDER
Philippe Pouletty
SERIES A INVESTORS
Parvest U.S. Partners II C.V.
Parvest Europe Investment II C.V.
Tradeinvest Limited
Multinvest Limited
Xxxxxx X. & Xxxxxxxxx X. Xxxxxx Trust 11/22/85
Xxxxxx Xxxxxxx, TTE Xxxxxxx 1988 Revocable Trust, U/A 11/17/1988
Xxxxxx Xxxxx
SERIES B INVESTORS
CDC Innovation
Parvest U.S. Partners II C.V.
Parvest Europe Investment II C.V.
Multinvest Limited
Tradeinvest Limited
Financiere de Xxxxxxx
Xxxxxx R. and Xxxxxxxxx X. Xxxxxx Trust 11/22/1985
Xxxxxx X. Xxxxxxx, TTE Xxxxxxx
1988 Revocable Trust, U/A 11/17/1988
Xxxxxxx Xxxxxxx
Philippe and Xxxxxxxxx Pouletty
Xxxx Xxxxxxxx Pouletty
Jacques Pouletty
Xxxxxx Xxxxx
Xxxxxxx Investment Company V, L.P.
UMB Bank, Trustee for the Xxxxxxx, Phleger & Xxxxxxxx LLP
Retirement Savings Plan
FBO Xxxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxx and Xxxxxxxx Xxxx Xxxxx Trust
UDT April 7, 1986
Xxxx X. Xxxxx
Xxxxxxxxx Xxxxxx
Xxxx-Xxxx Xxxxxx
Xxxx-Xxxx Soulillou
Xxxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx Revocable Trust
Xxxx Xxxxxxxx Xxxxx
Xxxxx Rubinfein
E-1
SERIES C INVESTORS
Xxxxxx Xxxxx
Xxxxx Xxxxx
CDC Innovation
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxx
Xxxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxxx
Financiere De Brienne
Xxxxxx Xxxxxxx, TTE Xxxxxxx
1988 Revocable Trust, U/A 11/17/1988
Jacques Pouletty
Xxxx-Xxxxxxxx Pouletty
Xxxx Xxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxx
Partech Entities:
Parvest U.S. Partners Ii C.V.
Parvest Europe Investment Ii C.V.
Multinvest Limited
Tradeinvest Limited
Philippe and Xxxxxxxxx Pouletty
Xxxxxx X. & Xxxxxxxxx X. Xxxxxx Trust 11/22/85
Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx
UMB Bank, Trustee For The Xxxxxxx Phleger & Xxxxxxxx LLP
Retirement Savings Plan
FBO Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
E-2
EXHIBIT B
SERIES D INVESTORS
Xxxxxx Xxxxx
Xxxxx Xxxxx
CDC Innovation
Financiere De Brienne
Xxxxxx Xxxxxxx, TTE Xxxxxxx
1988 Revocable Trust, U/A 11/17/1988
Xxxxxx X. & Xxxxxxxxx X. Xxxxxx Trust 11/22/85
Nomura International Plc
Parnib Belgie N.V.
Partech Entities:
Axa US Growth Fund
Parallel Capital I LLC
Parallel Capital II LLC
Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxx
Philippe Pouletty
Xxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxx
XX Xxxxxx (Suisse) S.A.
Xxxxx Xxxxxxxxx or Xxxx X. Xxxxxxxxx,
Trustee Xxxxxxxxx Family Revocable Trust (01/03/83)
Xxxx-Xxxx Xxxxxx, M.D.
Xxxxxxx Pouletty
Xxxx Xxxxxxxx Pouletty
Alain & Xxxxxxx Xxxxxxx
Auriga Gestion
Auriga Ventures FCPR
3i Group Plc
ABN-Amro Venture France
France Innovation 1 FCPI
France Innovation 2 FCPI
ABN-AMRO Capital Investments (Belgie) N.V.
Xxxxxx xx Xxxxxxxxxx Asset Management
Actys II FCPR
Croissance Discovery FCPR
Societe Generale Asset Management
FCPI SGAM Innovation 1
FCPI SOGE Innovation
E-3
EXHIBIT 2.14
STANDARD COMFORT LETTER PROVIDED TO SPONSOR
PRIVATE & CONFIDENTIAL
Dear
- ("__" or "the Company")
I refer to our conversation concerning the intentions of 3i Group Plc ("3i")
with regard to its shareholding in __ following it's flotation.
As you are aware, our policy is not to enter into any commitment to retain such
shares for any particular period. 3i has considerable experience of being a
significant minority shareholder in newly floated companies, and as such, I
believe you can rely on 3i's reputation and commercial sense not to disrupt the
market by indiscriminate sales. It is obvious in no-one's interest for any such
disruption to occur.
In line with our policy in such circumstances, we agree to advise you prior to
any sales by us during the next six* months, and will normally deal through the
Company's broker. However, 3i will not consider itself precluded from dealing
through other brokers if they are bidding for stock.
Yours sincerely,
FOR AND ON BEHALF OF 3i GROUP PLC
* or lesser period related to the publication of interim or preliminary results
E-4
