EXHIBIT 4.2
SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the
"Agreement") is made as of the 29th day of February, 2000 by and among
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Pointshare Corporation, a Delaware corporation (the "Company"), the founder set
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forth on Exhibit A hereto (the "Founder"), the investors listed on Exhibit B
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hereto (each of which is herein referred to as an "Investor" or collectively,
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the "Investors") and the former shareholders of Health Trade Links, Inc. listed
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on Exhibit C hereto (the "Health Trade Links Holders").
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RECITALS
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A. The Company, the Founder and certain of the Investors entered into an
Amended and Restated Investors' Rights Agreement on February 2, 2000 in
connection with the Health Trade Links, Inc., transaction (the "Existing
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Agreement"), pursuant to which the Founder and Investors were granted certain
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rights.
B. The Company and certain of the Investors (the "Series D Investors")
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have entered into a Series D Preferred Stock Purchase Agreement (the "Purchase
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Agreement") of even date herewith pursuant to which the Company desires to sell
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to such Series D Investors and such Series D Investors desire to purchase from
the Company shares of the Company's Series D Preferred Stock (the "Series D
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Preferred Stock"). A condition to such Series D Investors' obligations under
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the Purchase Agreement is that the Company, the Founder and the Investors enter
into this Agreement in order to provide (i) certain rights to register shares of
the Company's Common Stock issuable upon conversion of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D
Preferred Stock held by the Investors and Common Stock held by the Health Trade
Links Holders, (ii) certain rights to receive or inspect information pertaining
to the Company, and (iii) a right of first offer with respect to certain
issuances by the Company of its securities.
C. The Company, the Investors and the Founder each desire to induce the
Series D Investors to purchase shares of Series D Preferred Stock pursuant to
the Purchase Agreement by agreeing to the terms and conditions set forth herein.
D. The Founder and the Investors are holders of at least a majority of the
Registrable Securities of the Company (as defined in the Existing Agreement) and
desire to amend and restate the Existing Agreement in its entirety.
AGREEMENT
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THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Section 1:
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(a) 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 Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
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registration statement or document;
(b) The term "Registrable Securities" means (i) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and/or Series D Preferred Stock, (ii)
the shares of Common Stock issued to the shareholders of Heath Trade Links
Holders; provided, however, that for purposes of Sections 1.2, 1.12 and 1.14
such stock shall not be deemed Registrable Securities and the Health Trade Links
Holders shall not be deemed Holders and (iii) 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 or Common
Stock, excluding in all cases, however, any Registrable Securities sold by a
person in a transaction in which such person's registration rights are not
assigned;
(c) 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 exercisable or
convertible into, Registrable Securities;
(d) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance with
Section 1.13 hereof; and
(e) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC in lieu of Form S-3 which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(f) The term "Qualified IPO" means an initial public offering of
shares of Common Stock of the Company at a price per share (before any
underwriting commissions) of at least $5.00 and gross offering proceeds to the
Company, after deducting underwriters' commissions and expenses, of at least
$25,000,000 and shall exclude a registration statement relating either to the
sale of securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a SEC Rule 145 transaction.
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1.2 Request for Registration.
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(a) If the Company shall receive at any time after the earlier of
(i) July 1, 2002 or (ii) six months after the effective date (the "Effective
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Date") of the Qualified IPO, and in either case prior to the third anniversary
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date of the Effective Date, a written request from the Holders of at least 40%
of the Registrable Securities then outstanding that the Company file a
registration statement under the Securities Act covering the registration of (i)
in the case of the Qualified IPO, at least 20% of the Registrable Securities
then outstanding (or a lesser percent if the anticipated aggregate offering
price, net of underwriting discounts and commission, would exceed $15,000,000)
or (ii) in the case of any demand other than the Qualified IPO, any number of
Registrable Securities, then the Company shall, within 10 days of the receipt
thereof, give written notice of such request to all Holders and shall, subject
to the limitations of subsection 1.2(b), file as soon as practicable, and in any
event within 90 days of the receipt of such request, a registration statement
under the Securities Act covering all Registrable Securities which the Holders
request to be registered within 20 days of the mailing of such notice by the
Company in accordance with Section 4.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
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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 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). In such event, the right of any Holder to include such Holder's
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 subsection
1.4(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 and consented to by the Company (which
consent shall not be unreasonably withheld). Notwithstanding any other
provision of this Section 1.2, 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 the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder.
(c) The Company is obligated to effect only two such
registrations pursuant to this Section 1.2; provided, however, that the Company
shall not be obligated to effect a registration pursuant to this Section 1.2 if
within the six months immediately preceding a request hereunder the Company has
effected a demand registration under this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 1.2 a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the
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Company it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may not utilize this right more than once in any 12-month period.
1.3 Company Registration. If (but without any obligation to do so)
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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 Securities 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 20 days after mailing of such notice
by the Company in accordance with Section 4.5, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Securities Act all
of the Registrable Securities that each such Holder has requested to be
registered.
1.4 Obligations of the Company. Whenever required under this Section
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1 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 reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to 120 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
Securities 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 Securities 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 reasonable 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
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managing underwriter 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.
(g) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Section 1, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, 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 public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
1.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to Sections 1.2, 1.3 and
1.12 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to effect the
registration of the Registrable Securities.
1.6 Expenses of Demand Registration. All expenses, other than
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underwriting discounts and commissions, but including the fees and disbursements
of one counsel for the selling Holders, incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company, 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
1.2 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 participating Holders shall bear such expenses), unless the Holders of
a majority of the Registrable Securities agree to forfeit their right to one
demand registration pursuant to Section 1.2; provided further, however, 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
1.2.
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1.7 Expenses of Company Registration. The Company shall bear and pay
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all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the first two
registrations pursuant to Section 1.3 for each Holder (which right may be
assigned as provided in Section 1.13), including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees
relating or apportionable thereto and the reasonable fees and disbursements of
one counsel for the selling Holders, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering
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involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 1.3 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 Holders and other
selling stockholders according to the total amount of securities entitled to be
included therein owned by each Holder and selling stockholder or in such other
proportions as shall mutually be agreed to by such Holders and selling
stockholders).
1.9 Delay of Registration. No Holder shall have any right to obtain
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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 1.
1.10 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the officers and directors of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange
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Act"), against any losses, claims, damages or liabilities (joint or several) to
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which they may become subject under the Securities 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
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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 Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law;
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and the Company will reimburse each such Holder, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.10(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, officer, director, 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 have signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter
and any other Holder selling securities in such registration statement or any of
its directors or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, or underwriter or controlling
person, or other such Holder or director, officer or controlling person may
become subject, under the Securities 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
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter or controlling person,
other Holder, officer, director, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.10(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; provided, that,
in no event shall any indemnity under this subsection 1.10(b) exceed the net
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.10 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 1.10, 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
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a reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.10, but the omission so
to 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 1.10.
(d) The obligations of the Company and Holders under this Section
1.10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act. With a view to making
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available to the Holders the benefits of Rule 144 promulgated under the
Securities 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 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 simultaneously with the Company's initial public offerings or
as soon as practicable thereafter;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(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 90 days after the effective date of the first registration
statement filed by the Company), the Securities 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 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.
1.12 Form S-3 Registration. In case the Company shall receive from
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any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 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:
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(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) 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 1.12: (i) if Form S-3 is
not available for such offering by the Holders; (ii) 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 public (net of any
underwriters' discounts or commissions) of less than $1,000,000; (iii) if the
Company shall furnish to the Holders a certificate signed by the President of
the Company stating that in the good faith judgment of the Board of Directors of
the Company 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 the Holder or Holders under this Section 1.12; provided, however,
that the Company shall not utilize this right more than once in any 12-month
period; (iv) if the Company has, within the six-month period preceding the date
of such request, already effected a registration on Form S-3 for the Holders
pursuant to this Section 1.12 and other similar provisions granting rights to
registration on Form S-3; (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance; or (vi) if the Holders hold in the aggregate less than 1% of the
outstanding shares of the Company's capital stock.
(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. The Company shall pay all expenses (other
than underwriting discounts and commissions) incurred in connection with the
first two registrations requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of one counsel for all selling
Holders and counsel for the Company. All expenses incurred in additional
registrations pursuant to this Section 1.12 shall be borne pro rata by the
Holder or Holders participating in the Form S-3 Registration. Registrations
effected pursuant to this Section 1.12 shall not be counted as demands for
registration effected pursuant to Section 1.2.
1.13 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to (i) any partner or retired partner of any Holder which
is a partnership, (ii) any family member or trust for the benefit of any
individual Holder, and (iii) a transferee or assignee of at least 20% of such
Holder's Registrable Securities; provided, in each case, the Company is, within
a reasonable time
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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 Securities Act.
1.14 Limitations on Subsequent Registration Rights. From and after
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the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 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 such holder's securities will not reduce the amount of the
Registrable Securities of the Holders which is included or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within 120 days of the effective date of any registration effected
pursuant to Section 1.2.
1.15 Amendment of Registration Rights. Any provision of this Section
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1 may be amended and the observance thereof 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
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder, and each
future holder of Registrable Securities and the Company.
1.16 Termination of Registration Rights. The Company's obligations
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pursuant to this Section 1 (other than its obligations pursuant to Section 1.11)
shall terminate as to any Holder of Registrable Securities on the earlier of (i)
when the Holder can sell all of such Holder's shares pursuant to Rule 144 under
the Securities Act during any 90-day period or (ii) on the fifth anniversary of
the closing of the Company's sale of its Common Stock in a bona fide, firm
commitment underwriting pursuant to a registration statement on Form S-1 under
the Securities Act which results in gross offering proceeds of at least
$25,000,000.
2. Covenants.
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2.1 Delivery of Financial Statements.
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(a) The Company shall deliver to each Investor so long as such
Investor holds at least 175,000 shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, or Series D Preferred Stock of the
Company or Common Stock issued upon conversion of such Preferred Stock:
(i) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company, a statement of operations for
such fiscal year, a balance sheet of the Company as of the end of such year, and
a statement of cash flows for such year, such year-end financial reports to be
in reasonable detail, prepared in accordance with
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generally accepted accounting principles ("GAAP"), and audited and certified by
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independent public accountants of nationally recognized standing selected by the
Company;
(ii) as soon as practicable after the end of each of the
first three quarters of the fiscal year, but in any event within 45 days after
the end of each such quarter, the Company's unaudited statement of operations,
statement of cash flows and balance sheet for and as of the end of such quarter;
(iii) as soon as practicable after the end of each month but
in any event within 20 days of the end of each month, an unaudited statement of
operations, statement of cash flows and balance sheet for and as of the end of
such month, in reasonable detail; such monthly statements shall also contain the
foregoing information on a year-to-date basis, shall compare actual performance
to budget and shall contain a report on business trends by the President of the
Company;
(iv) as soon as practicable after the end of each fiscal
year of the Company but in any event within 30 days after the end of such fiscal
year, a capitalization summary of the Company, by investor; and
(v) not less than 30 days prior to the close of each
fiscal year, a comprehensive operating budget for the next fiscal year
forecasting the Company's revenues, expenses and cash position, prepared on a
monthly basis, including balance sheets and sources and applications of funds
statements for such months and, promptly following approval by the Board of
Directors, any other comprehensive operating budgets or revised such budgets
prepared by the Company.
(b) For purposes of determining the number of shares held by an
Investor for purposes of Sections 2.1 and 2.2 hereof, each Investor shall be
deemed to hold the shares of Common Stock and Preferred Stock held by any
affiliate of such Investor.
2.2 Inspection. For so long as an Investor holds at least 175,000
----------
shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series D Preferred Stock of the Company or Common Stock issued upon
conversion of such series of Preferred Stock, the Company shall permit such
Investor, at such Investor's expense, to visit and inspect the Company's
properties, to examine its books of account and records and to discuss the
Company's affairs, finances and accounts with its officers, all at such
reasonable times as may be requested by Investor; provided, however, that the
Company shall not be obligated pursuant to this Section 2.2 to provide access to
any information which it reasonably considers to be a trade secret or similar
confidential information. The inspection privileges set forth in this Section
2.2 shall not be assignable.
2.3 Termination of Covenants. The covenants set forth in Sections
------------------------
2.1 and 2.2 hereof shall terminate and be of no further force or effect upon the
earlier of (i) when the sale of securities pursuant to a registration statement
filed by the Company under the Securities Act in connection with the firm
commitment underwritten offering of its securities to the general public
-11-
is consummated or (ii) when the Company first becomes subject to the periodic
reporting requirements of Section 13(a) or 15(d) of the Exchange Act.
2.4 Right of First Offer. Subject to the terms and conditions
--------------------
specified in this Section 2.4, the Company hereby grants to Xxxxxx Xxxxxxxxx,
M.D. and to each Investor (collectively, the "Offerees" and each an "Offeree") a
-------- -------
right of first offer with respect to future sales by the Company of its Shares
(as hereinafter defined). Each Offeree shall be entitled to apportion the right
of first offer hereby granted it among itself and its partners and affiliates in
such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for, any class of its capital stock
(collectively, "Shares"), other than the sale of Series D Preferred Stock
------
contemplated by the Purchase Agreement, the Company shall first make an offering
of such Shares to each Offeree in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to each Offeree stating (i) its bona fide intention to offer or issue
------
such Shares, (ii) the number of such Shares to be offered, and (iii) the price,
if any, for which it proposes to offer such Shares.
(b) Within 15 calendar days after receipt of the Notice, the
Offeree may elect to purchase or obtain, at the price and on the terms specified
in the Notice, up to that portion of such Shares which equals the proportion
that the number of shares of Common Stock issued and held, or issuable upon
conversion of the shares of the Company's Preferred Stock then held, by such
Offeree bears to the total number of shares of outstanding Common Stock and
Common Stock issuable upon conversion of the Preferred Stock then outstanding.
The Company shall promptly, in writing, inform each Offeree which purchases all
the shares available to it ("Fully Exercising Offeree") of any other Offeree's
------------------------
failure to do likewise. During the 10-day period commencing after receipt of
such information, each Fully Exercising Offeree shall be entitled to obtain that
portion of the shares subject to such right of first refusal and not subscribed
for by the Offerees which is equal to the proportion that the number of shares
of Common Stock issued and held, or issuable upon conversion of the Preferred
Stock then held, by such Fully Exercising Offeree 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 Fully Exercising Offerees who wish to purchase
some of the unsubscribed shares.
(c) If all such Shares referred to in the Notice are not elected
to be obtained as provided in subsection 2.4(b) hereof, the Company may, during
the 60-day period following the expiration of the period provided in subsection
2.4(b) hereof, offer the remaining unsubscribed Shares to any person or persons
at a price not less than that, 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 Shares within such period, or if such agreement is
not consummated within 60 days of the execution thereof, the right provided
hereunder shall be deemed to be revived and such Shares shall not be offered
unless first reoffered to the Offerees in accordance herewith.
-12-
(d) The right of first offer granted in this Section 2.4 shall
not be applicable (i) to the issuance or sale of shares of Common Stock (or
options therefor) to employees, directors, consultants or advisors of the
Company, provided that each such person executes an agreement with respect to
such issuance or sale, in substantially the form as approved by the Company's
Board of Directors, (ii) to the issuance or sale of shares of Common Stock or
Preferred Stock pursuant to currently outstanding options, warrants or other
securities exercisable or convertible into Common Stock or Preferred Stock of
the Company, (iii) to the issuance or sale of shares of Common Stock or
Preferred Stock, or options or warrants to purchase shares of Common Stock or
Preferred Stock, issued to lending institutions or lessors in connection with
commercial credit arrangements, equipment financings or similar transactions, or
in corporate partnering transactions as unanimously approved by the Board of
Directors, and (iv) to or after consummation of a Qualified IPO.
2.5 Further Covenants. The Company further covenants that from and
-----------------
after the date hereof:
(a) it will maintain term life insurance from financially sound
and reputable insurers on each of the lives of Xxxxxx X. Xxxxxxxxx, M.D. and
Xxxxxxx X. Xxxxxxxxx in the amount of $2,000,000 per person. Such policies shall
name the Company as loss payee and shall not be cancelable by the Company
without the prior approval of the holders of a majority of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock voting together as a single class; and
(b) it will cause all employees and consultants of the Company to
execute a proprietary information agreement, in a form previously provided to
special counsel to the Investors, which provides for the protection of the
Company's proprietary and confidential information and the assignment of
intellectual property rights to the Company; and
3. "Market Stand-Off" Agreement.
----------------------------
3.1 Until the third anniversary of the Effective Date (as defined
Section 1.2(a)), each Investor hereby agrees that it shall not, to the extent
requested by the Company or an underwriter of Common Stock (or other securities)
of the Company, sell or otherwise transfer or dispose (other than to donees who
agree to be similarly bound) of any securities of the Company (other than
securities purchased in the open market and not otherwise in breach of this
Section 3) for a period of up to 180 days following the effective date of the
first registration statement filed by the Company under the Securities Act and
declared effective by the Securities and Exchange Commission; provided that all
officers and directors of the Company and all other persons with registration
rights (whether or not pursuant to this Agreement) enter into similar
agreements.
3.2 Legends. In order to enforce the foregoing covenant, the Company
-------
may impose stop-transfer instructions with respect to the securities of the
Company (other than securities purchased in the open market and not otherwise in
breach of this Section 3) held by Investor (and the shares or securities of
every other person subject to the foregoing restriction) until the end of such
period. Additionally, each certificate representing the Series A Preferred
-13-
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Common Stock held by the Health Trade Links Holders and the Common
Stock issuable upon conversion of the Preferred Stock shall be endorsed by the
Company with a legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN INVESTORS' RIGHTS
AGREEMENT WHICH RESTRICTS THE TRANSFERABILITY OF THE SHARES. A COPY
OF THE INVESTORS' RIGHTS AGREEMENT MAY BE OBTAINED FROM THE COMPANY."
4. Miscellaneous.
-------------
4.1 Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
4.2. Governing Law. This Agreement shall be governed by and
-------------
construed under the laws of the State of Washington (irrespective of its choice
of law principles).
4.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. All notices required or permitted hereunder shall be in
-------
writing and shall be deemed effectively given upon personal delivery to the
party to be notified or five days after deposit in the United States mail or one
day after deposit with an air courier, postage prepaid and properly addressed to
the party to be notified as set forth on the signature page hereof or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties hereto. Notwithstanding the foregoing, notice may
be given by telex or telecopy, provided that appropriate confirmation of receipt
is received.
4.6 Amendments and Waivers. Except as specified in Section 1.15 and
----------------------
Section 4.9, 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 a majority of the Common Stock issued
or issuable upon conversion of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock; provided, however,
that no such amendment or waiver shall adversely affect rights of the holders of
a class or series of the Company's stock under this Agreement without the prior
written consent of a majority-in-interest of such adversely affected class or
series. Amendment to Section 2.4 hereof shall
-14-
additionally require the written consent of Xxxxxx X. Xxxxxxxxx, M.D. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities are convertible),
each future holder of all such securities, and the Company.
4.7 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
4.8 Aggregation of Stock. All 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.
4.9 Additional Investors. In the event the Company sells additional
--------------------
shares of Series D Preferred Stock after the date hereof, each party to this
Agreement hereby consents to the Company, in its sole discretion and without any
requirement of providing notice to or obtaining any additional consent of any
other existing Holders, may add the additional investors and the additional
shares of Series D Preferred Stock to this Agreement and, with respect to such
additional shares, the additional investor shall have all the rights and
obligations of an Investor and of a Holder of Registrable Securities hereunder.
[Signature page follows]
-15-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
POINTSHARE CORPORATION,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxxxx
By: _________________________________________
Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Address: 0000 - 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
FOUNDER:
/s/ Xxxxxx X. Xxxxxxxxx
_____________________________________________
Xxxxxx X. Xxxxxxxxx, M.D.
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
INVESTORS:
/s/
_____________________________________________
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
Address: ___________________________________
___________________________________
___________________________________
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
Exhibit A
---------
Founder Number of Shares
------- ----------------
Xxxxxx X. Xxxxxxxxx, M.D. 2,255,200
Exhibit B
---------
Investor Number of Shares
-------- ----------------
Xxxxxxxxxxxx Venture Partners IV 4,707,273
Domain Partners III, L.P. 1,818,660
Biotechnology Investments Limited 1,881,579
DP III Associates, L.P. 62,918
Cardinal Health Partners, L.P. 2,657,273
Xxxxxxx X. Xxxxxxxxx Living Trust 188,158
BMC HK Partners, L.P. 1,032,000
Utah Ventures II, L.P. 2,054,545
Trustees of Boston University c/o
Community Technology Fund 581,818
VLG Investments 1999 20,364
Xxxxx X. Xxxxxxxx 6,836
Child Health Investment Corporation 90,909
Phoenix Leasing Incorporated (Warrant) 36,000
Xxxxxx Xxxxxxxxx (Warrant) 52,000
Xxxxxxxx New Technologies Fund, Inc. 1,221,818
Xxxxxxxx Communications and Information 363,637
Fund, Inc.
Xxxxxxxx Investment Opportunities
(Master) Fund - NTV Portfolio 232,727
ABS Capital Partners III, L.P. 3,636,364
BB BioVentures L.P. 1,563,637
MPM BioVentures Parallel Fund, L.P. 235,636
MPM Asset Management Investors 1999 LLC
18,909
HLM/CB Fund, L.P. 545,455
HLM/UH Fund, L.P. 909,091
Xxx Xxxxxxx Capital Management 1,090,909
Salix Ventures 727,273
Xxxx Xxxxxxxxx 1,055
Xxxxxx Xxxxx 1,000
Xxxxxxxx.xxx, Inc. 600,000
Computer Sciences Corporation 500,000
00xx Xxxxxx Associates, Inc. 105,000
Imperial Ventures, Inc. 90,909
Xxxxx XxXxxxxx IV, L.P. 1,672,728
Xxxxx X. Xxxxxxxxx, M.D. 72,727
Xxxx X. Xxxxxxxx, Xx. 5,546
Xxxx Xxxxxxxxxxxx 54,546
BancBoston Xxxxxxxxx Xxxxxxxx, Inc. 146,357
Exhibit C
---------
Health Trade Links Holders
Name Number of Shares
---- ----------------
Xxxxxx X. Xxxxx 68,182
X.X. Xxxxxxxx 68,182
