EXHIBIT 10.7
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MEGABIOS CORP.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
MAY 23, 1997
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TABLE OF CONTENTS
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PAGE
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I. GENERAL
1.1 Definitions.................................... 1
II. REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer....................... 3
2.2 Demand Registration............................ 4
2.3 Piggyback Registrations........................ 5
2.4 Form S-3 Registration.......................... 6
2.5 Expenses of Registration....................... 7
2.6 Obligations of the Company..................... 7
2.7 Termination of Registration Rights............. 8
2.8 Delay of Registration.......................... 8
2.9 Indemnification................................ 8
2.10 Assignment of Registration Rights.............. 10
2.11 Amendment of Registration Rights............... 11
2.12 Limitation on Subsequent Registration Rights... 11
2.13 "Market Stand-Off" Agreement................... 11
III. COVENANTS OF THE COMPANY
3.1 Basic Financial Information and Reporting...... 11
3.2 Inspection Rights.............................. 12
3.3 Confidentiality of Records..................... 12
3.4 Proprietary Information........................ 12
3.5 Right of First Refusal......................... 12
3.6 Reservation of Common Stock.................... 14
3.7 Termination of Covenants....................... 15
IV. MISCELLANEOUS
4.1 Governing Law.................................. 15
4.2 Survival....................................... 15
4.3 Successors and Assigns......................... 15
4.4 Separability................................... 15
4.5 Amendment and Waiver........................... 15
4.6 Delays or Omissions............................ 15
4.7 Notices........................................ 16
4.8 Attorneys' Fees................................ 16
4.9 Titles and Subtitles........................... 16
4.10 Counterparts................................... 16
TABLE OF CONTENTS
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(CONTINUED)
PAGE
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SCHEDULES
Schedule A: Shareholders
Schedule B: Regulation S Purchasers
Schedule C: U.S. Purchasers
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amended and Restated Investor Rights Agreement (the "Agreement") is
entered into as of May 23, 1997, by and among MEGABIOS Corp., a California
corporation (the "Company"), and the holders of the Company's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series E Preferred
Stock identified on Schedule A hereto (collectively, the "Shareholders"), and
the purchasers of the Company's Series F Preferred Stock identified on Schedule
B or Schedule C hereto (purchasers identified on Schedule B or Schedule C are
collectively referred to herein as the "Purchasers").
WHEREAS, the Shareholders possess registration rights, information rights
and other rights pursuant to an Amended and Restated Investors' Rights Agreement
dated as of October 7, 1996 between the Company and the Shareholders (the "Prior
Agreement");
WHEREAS, the Shareholders desire to terminate the Prior Agreement and to
accept the rights created pursuant hereto in lieu of the rights granted to them
under the Prior Agreement; and
WHEREAS, the Purchasers are parties to the Series F Preferred Stock
Purchase Agreement, dated as of the date hereof, by and among the Company and
the Purchasers (the "Purchase Agreement"), pursuant to which certain of the
Company's and the Purchasers' obligations are conditioned upon the execution and
delivery by the Purchasers and the Company of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
considerations and releases contained herein, the Shareholders agree that the
Prior Agreement is amended and restated in its entirety by this Agreement, and
the parties hereto further agree as follows:
I. GENERAL
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1.1 Definitions. As used in this Agreement the following terms shall have
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the following respective meanings:
"Holder" means any person owning of record Registrable Securities that have
not been sold to the public or any assignee of record of such Registrable
Securities in accordance with Section 2.10 hereof.
"Investors" means collectively the Purchasers and the Shareholders and
"Investor" means any one of them.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, as defined below, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" means (i) shares of Common Stock of the Company
issued or issuable upon conversion of the Shares, as defined below; and (ii) any
shares of 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 above-described securities. Notwithstanding the foregoing,
Registrable Securities shall not include any securities sold by a person to the
public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferror's rights under Article II of this
Agreement are not assigned.
"Registrable Securities then outstanding" means the number of shares
determined by calculating the total number of shares of the Common Stock of the
Company that are Registrable Securities and either (1) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"Registration Expenses" means all expenses incurred by the Company in
complying with Sections 2.2, 2.3 and 2.4 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements not to exceed Twenty
Thousand Dollars ($20,000) of a single special counsel for the Holders, blue sky
fees and expenses and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
"Regulation S" means Rules 902 through 904 as promulgated by the Commission
under the Securities Act, as such rules may be amended from time to time, or any
similar successor rules that may be promulgated by the Commission.
"Regulation S Purchasers" means collectively the Purchasers listed on
Schedule B hereto and "Regulation S Purchaser" means any one of them.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Expenses" means all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities.
"Shares" means shares of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series E Preferred Stock and Series F Preferred
Stock of the Company.
"Form S-3" means such form under the Securities Act as in effect on the date
hereof or any successor registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
"SEC" or "Commission" means the Securities and Exchange Commission.
"U.S. Purchasers" means collectively the Purchasers listed on Schedule C
hereto and "U.S. Purchaser" means any one of them.
II. REGISTRATION; RESTRICTIONS ON TRANSFER
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2.1 Restrictions on Transfer.
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(a) Each Holder agrees not to make any disposition of all or any
portion of the Registrable Securities (or the Common Stock issuable upon the
conversion thereof) unless and until the transferee has agreed in writing for
the benefit of the Company to be bound by this Section 2.1, provided and to the
extent such Section is then applicable and:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) (A) Such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144 except in unusual
circumstances.
(iii) Notwithstanding the provisions of paragraphs (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Holder which is (A) a partnership to its partners in
accordance with partnership interests, or (B) to the Holder's family member or
trust for the benefit of an individual Holder, provided the transferee will be
subject to the terms of this Section 2.1 to the same extent as if he were an
original Holder hereunder.
(b) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of the Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the following (in
addition to any legend required under applicable state securities laws or as
provided elsewhere in the Agreement and except that the Regulation S legend
shall be applied only to those securities issued to Regulation S Purchasers):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON OTHER WRITTEN
EVIDENCE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED PURSUANT
TO REGULATION S OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE THEREWITH.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Each Regulation S Purchaser is aware that the Company will, and
the Company agrees that Company shall, to the extent required by Regulation S,
refuse to register any transfer of the Shares purchased by such Regulation S
Purchaser that is not made in accordance with Regulation S.
(e) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 Demand Registration.
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2.2.1 Subject to the conditions of this Section 2.2, if the Company
shall receive at any time a written request from the Holders of more than thirty
percent (30%) of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the Securities
Act covering the registration of Registrable Securities, then the Company shall,
within thirty (30) days of the receipt thereof, give written notice of such
request to all Holders, and subject to the limitations of Section 2.2.2, shall
use its best efforts to effect, as soon as practicable, the registration under
the Securities Act of all Registrable Securities that the Holders request to be
registered.
2.2.2 If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2.2
and the Company shall include such information in the written notice referred to
in Section 2.2.1. In such event, the right of any Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall 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 (which underwriter or underwriters shall be reasonably acceptable to the
Company). Notwithstanding any other provision of this Section 2.2, if the
underwriter advises the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten (including Registrable
Securities) then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares that may be included in the underwriting shall be allocated to the
Holders of such Registrable Securities on a pro rata basis based on the number
of Registrable Securities held by all such Holders (including the Initiating
Holders). Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
2.2.3 The Company shall not be obligated to effect more than two (2)
registrations pursuant to this Section 2.2.
2.2.4 The Company shall not be required to effect a registration
pursuant to this Section 2.2 during the period starting with the date of filing
of, and ending on the date one hundred eighty (180) days following the effective
date of the registration statement pertaining to the initial public offering of
the Company's common stock (the "Initial Offering"), provided that the Company
is making reasonable and good faith efforts to cause such registration statement
to become effective. In addition, the Company shall not be required to effect a
registration pursuant to this Section 2.2 if within thirty (30) days of receipt
of a written request from Initiating Holders pursuant to Section 2.2.1, the
Company gives notice to the Holders of the Company's intention to make its
Initial Offering within ninety (90) days.
2.2.5 Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 2.2, a
certificate signed by the Chairman of the Board 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 shareholders 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 ninety (90) days after receipt of the request of
the Initiating Holders; provided that such right to delay a request shall be
exercised by the Company no more than once in any one-year period.
2.3 Piggyback Registrations. The Company shall notify all Holders of
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Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans and corporate reorganizations) and will afford each such Holder an
opportunity to include in such registration statement all or part of such
Registrable Securities held by such Holder. Each Holder desiring to include in
any such registration statement all or any part of the Registrable Securities
held by it shall, within fifteen (15)
days after receipt of the above-described notice from the Company, so notify the
Company in writing. Such notice shall state the intended method of disposition
of the Registrable Securities by such Holder. If a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter filed
by the Company, such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
2.3.1 Underwriting. If the registration statement under which the
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Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of any such Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of the
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to
the Company; second, to the Holders on a pro rata basis based on the total
number of Registrable Securities held by the Holders; and third, to any
shareholder of the Company (other than a Holder) on a pro rata basis. No such
reduction shall reduce the securities being offered by the Company for its own
account to be included in the registration and underwriting, except that in no
event shall the amount of securities of the selling Holders included in the
registration be reduced below twenty-five percent (25%) of the total amount of
securities included in such registration, unless such offering is the Initial
Offering and such registration does not include shares of any other selling
shareholders, in which event any or all of the Registrable Securities of the
Holders may be excluded in accordance with the immediately preceding sentence.
In no event will shares of any other selling shareholder be included in such
registration which would reduce the number of shares which may be included by
Holders without the written consent of Holders of not less than a majority of
the Registrable Securities proposed to be sold in the offering.
2.4 Form S-3 Registration. In case the Company shall receive from any
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Holder or Holders of Registrable Securities 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:
2.4.1 promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities; and
2.4.2 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
fifteen (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 2.4: (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 of less than
$500,000, (iii) if the Company shall furnish to the Holders a certificate signed
by the Chairman of the Board of Directors 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 shareholders 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 ninety (90) days after receipt of the request of the
Holder or Holders under this Section 2.4, provided that the Company may exercise
such right only once in each 12-month period, or (iv) 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.
2.4.3 Subject to the foregoing, the Company shall file a Form S-3
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.
2.5 Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to
Section 2.2 or any registration under Section 2.3 or Section 2.4 herein shall be
borne by the Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the holders of the securities so
registered pro rata on the basis of the number of shares so registered. The
Company shall not, however, be required to pay for expenses of any registration
proceeding begun pursuant to Section 2.2 or 2.4, the request of which has been
subsequently withdrawn by the Initiating Holders unless (a) the withdrawal is
based upon material adverse information concerning the Company of which the
Initiating Holders were not aware at the time of such request or (b) for
registration proceedings begun pursuant to Section 2.2, the Holders of a
majority of Registrable Securities agree to forfeit their right to one requested
registration pursuant to Section 2.2 (in which event such right shall be
forfeited by all Holders). If the Holders are required to pay the Registration
Expenses, such expenses shall be borne by the holders of securities (including
Registrable Securities) requesting such registration in proportion to the number
of shares for which registration was requested.
2.6 Obligations of the Company. Whenever required to effect the
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registration of any Registrable Securities, the Company shall use its best
efforts, as expeditiously as reasonably possible, to:
2.6.1 Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to 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 one hundred eighty (180) days.
2.6.2 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.
2.6.3 Furnish to the Holders such number 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.
2.6.4 Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided 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.
2.6.5 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.
2.6.6 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.
2.6.7 Furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable Securities
are delivered to the underwriters for sale, 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 as of 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 and reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities and (ii) a letter
dated as of 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 and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
2.7 Termination of Registration Rights. All registration rights granted
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under this Article II shall terminate and be of no further force and effect
seven (7) years after the closing of the Company's Initial Offering.
2.8 Delay of Registration. No Holder shall have any right to obtain or
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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 Article II.
2.9 Indemnification. In the event any Registrable Securities are included
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in a registration statement under Sections 2.2, 2.3 or 2.4:
2.9.1 To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, 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
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the 1934 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") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state securities law in connection with the offering covered
by such registration statement; and the Company will reimburse each such Holder,
partner, officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, as incurred;
provided however, that the indemnity agreement contained in this Section 2.9.1
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 such Holder, partner,
officer, director, underwriter or controlling person of such Holder.
2.9.2 To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter and any other Holder selling securities
under such registration statement or any of such other Holder's partners,
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, underwriter or other such Holder, or partner,
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 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 under an instrument
duly executed by such Holder and stated to be specifically 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 other Holder, or partner, officer, director
or controlling person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability or action if it is judicially
determined that there was such a Violation; provided, however, that the
indemnity agreement contained in this Section 2.9.2 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 further, that in no event shall any
indemnity under this Section 2.9 exceed the gross proceeds from the offering
received by such Holder.
2.9.3 Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.9, 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 2.9.
2.9.4 If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
2.9.5 The foregoing indemnity agreements of the Company and Holders
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of any person if a copy of the Final Prospectus was furnished to the
indemnified party and was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
2.9.6 The obligations of the Company and Holders under this Section
2.9 shall survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
2.10 Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Article II may be assigned by a
Holder to a transferee or assignee of Registrable Securities which is a (i)
subsidiary, parent, general partner or limited partner of a Holder or (ii) which
acquires at least fifty thousand (50,000) shares of Registrable Securities (as
adjusted for stock splits and combinations); provided, however, that the
transferee shall, within ten (10) days after such transfer, furnish to the
Company 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.
2.11 Amendment of Registration Rights. Any provision of this Article II
--------------------------------
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. Any amendment or waiver effected in accordance with
this Section 2.11 shall be binding upon each Holder and the Company. By
acceptance of any benefits under this Article II, Holders of Registrable
Securities hereby agree to be bound by the provisions hereunder.
2.12 Limitation on Subsequent Registration Rights. After the date of this
--------------------------------------------
Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the Registrable Securities, enter into any agreement
with any holder or prospective holder of any securities of the Company that
would permit such holder to require that the Company register any securities
held by such holder.
2.13 "Market Stand-Off" Agreement. The Company (or a representative of the
----------------------------
underwriters) may, in connection with the first underwritten registration of the
offering of any securities of the Company under the Act, require that a Holder
not sell or otherwise transfer or dispose of any shares of Common Stock or other
securities of the Company during such period (not
to exceed one hundred eighty (180) days) following the effective date (the
"Effective Date") of the registration statement of the Company filed under the
Act as may be requested by the Company or the representative of the
underwriters. For purposes of this restriction a Holder will be deemed to own
securities which (i) are owned directly or indirectly by such Holder, including
securities held for such Holder's benefit by nominees, custodians, brokers or
pledgees; (ii) may be acquired by such Holder within sixty (60) days of the
Effective Date; (iii) are owned directly or indirectly, by or for such Holder's
brothers or sisters (whether by whole or half blood) spouse, ancestors and
lineal descendants; or (iv) are owned, directly or indirectly, by or for a
corporation, partnership, estate or trust of which such Holder is a shareholder,
partner or beneficiary, but only to the extent of such Holder's proportionate
interest therein as a shareholder, partner or beneficiary thereof. Such Holder
further agrees that the Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such period.
III. COVENANTS OF THE COMPANY.
------------------------
3.1 Basic Financial Information and Reporting.
-----------------------------------------
3.1.1 The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
3.1.2 As soon as practicable after the end of each fiscal year of the
Company, and in any event within 120 days thereafter, the Company will furnish
each Investor a consolidated balance sheet of the Company, as at the end of such
fiscal year, and a consolidated statement of income and a consolidated statement
of cash flows of the Company, for such year, all 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. Such financial statements shall be accompanied by a report and opinion
thereon by independent public accountants of national standing selected by the
Company's Board of Directors.
3.1.3 So long as an Investor (with its affiliates) shall own not less
than one hundred thousand (100,000) shares of Registrable Securities (a "Major
Investor"), the Company will furnish each such Major Investor (i) at least
thirty (30) days prior to the beginning of each fiscal year an annual budget and
operating plans for such fiscal year; and (ii) as soon as practicable after the
end of each month, and in any event within twenty (20) days thereafter, a
consolidated balance sheet of the Company as of the end of each such month, and
a consolidated statement of income and a consolidated statement of cash flows of
the Company for such month and for the current fiscal year to date, including a
comparison to plan figures for such period, prepared in accordance with
generally accepted accounting principles, with the exception that no notes need
be attached to such statements and year-end audit adjustments may not have been
made.
3.2 Inspection Rights. Each Major Investor shall have the right to visit
-----------------
and inspect any of the properties of the Company or any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, all at such reasonable times and as often as may
be reasonably requested; provided, however, that the Company shall not be
obligated under this Section 3.2 with respect to a competitor of the Company or
with respect to information which the Board of Directors determines in good
faith is confidential and should not, therefore, be disclosed.
3.3 Confidentiality of Records. Each Investor agrees to use, and to use
--------------------------
its best efforts to insure that its authorized representatives use, the same
degree of care as such Investor uses to protect its own confidential information
to keep confidential any information furnished to it which the Company
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that such Investor may disclose such
proprietary or confidential information to any partner, subsidiary or parent of
such Investor for the purpose of evaluating its investment in the Company as
long as such partner, subsidiary or parent is advised of the confidentiality
provisions of this Section 3.3.
3.4 Proprietary Information. The Company shall require all employees of
-----------------------
and consultants to the Company who have access to proprietary information of the
Company to enter into agreements in the Company's standard form providing for
the protection of proprietary information and inventions.
3.5 Right of First Refusal. Subject to the provisions of this Section
----------------------
3.5, the Company hereby grants to each Holder holding at least 50,000 shares of
Registrable Securities, unless waived pursuant to Section 3.5.6 below, the right
of first refusal to purchase its pro rata share of New Securities (as defined
below) that the Company may, from time to time, propose to sell and issue. For
purposes of this Section 3.5, the Registrable Securities held by all affiliated
entities and individuals shall be aggregated for purposes of determining whether
the above 50,000 share threshold is met, and all such affiliated entities and
individuals shall be treated as a single Holder. Each Holder's pro rata share,
for purposes of this right of first refusal, is the ratio of (X) the number of
shares of Registrable Securities then owned to (Y) the total number of shares of
Common Stock of the Company outstanding immediately prior to the issuance of the
New Securities, assuming full conversion of all shares of outstanding Preferred
Stock of the Company and exercise of all outstanding options and warrants to
purchase securities of the Company. This right of first refusal shall be
subject to the following provisions:
3.5.1 "New Securities" shall mean any offering by the Company of any
Common Stock or Preferred Stock of the Company, whether now authorized or not,
and rights, options, or warrants to purchase said Common Stock or Preferred
Stock, and securities of any type whatsoever that are, or may become,
convertible into said Common Stock or Preferred Stock; provided, however, that
"New Securities" does not include (i) securities issuable upon conversion of the
Preferred Stock; (ii) securities offered to the public pursuant to a
registration statement filed under the Securities Act; (iii) securities issued
pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets, or other reorganization whereby the
Company owns more than 50% of the voting power of such corporation; (iv) shares
of the Company's Common Stock (or related options) issued or issuable at any
time to employees, directors or consultants of the Company, or any subsidiary,
pursuant to any employee stock offering, plan, or arrangement approved by the
Board of Directors; (v) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split, stock dividend, or recapitalization
by the Company; (vi) securities issued in connection with equipment lease
financings or other financings with commercial lenders; and (vii) shares of the
Company's Common Stock or Preferred Stock issued in connection with strategic
transactions involving the Company and other entities, including (A) joint
ventures, manufacturing, marketing or distribution arrangements or (B)
technology transfer or development arrangements; provided that such strategic
transactions and the issuance of shares therein, has been approved by all
members of the Company's Board of Directors.
3.5.2 In the event that the Company proposes to undertake an issuance
of New Securities, it shall give each Holder written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same ("New Securities Notice"). Each
Holder shall have 10 business days from the date of mailing of any New
Securities Notice to agree to purchase its pro rata share of such New Securities
for the price and upon the general terms specified in the New Securities Notice
by giving written notice to the Company and stating therein the quantity of New
Securities to be purchased.
3.5.3 In the event that the Holders fail to exercise in full the
right of first refusal within said 10 business day period, the Company shall
have 120 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 30
days from the date of said agreement) the New Securities respecting which the
Holders' rights were not exercised at a price and upon general terms materially
no more favorable to the purchasers thereof than specified in the New Securities
Notice. In the event the Company has not sold the New Securities within said
120 day period (or sold and issued New Securities in accordance with the
foregoing within 120 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 Holders in the manner provided above; provided however, that
in the event that within a 60 day period from the date of mailing of the New
Securities Notice, the Company changes the price or any other material terms
specified in the New Securities Notice upon which the New Securities are to be
issued, the Company shall offer the New Securities at such amended terms to the
Holders in the manner provided in Section 3.5.4 below.
3.5.4 In the event that within a 60 day period from the date of
mailing of the New Securities Notice, the Company changes the price or any other
material terms specified in the New Securities Notice upon which the New
Securities are to be issued, the Company shall give each Holder written notice
describing such changes ("Notice of Change"). Each Holder shall have 5 business
days from the date of mailing of any Notice of Change to purchase its pro rata
share of such New Securities for the price and upon the general terms specified
in the New Securities Notice, as amended by the Notice of Change, by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased. In the event that the Holders fail to exercise
in full the right of first refusal within said 5 business day period, the
Company shall have 120 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 30 days from the date of said agreement) the New Securities
respecting which the Holders' rights were not exercised at a price and upon
general terms materially no more favorable to the purchasers thereof than
specified in the New Securities Notice, as amended by the Notice of Change. In
the event the Company has not sold the New Securities within said 120 day period
(or sold and issued New Securities in accordance with the foregoing within 120
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 Holders in
the manner provided in Sections 3.5.2 and 3.5.3 above, or if applicable, this
Section 3.5.4.
3.5.5 Notwithstanding anything to the contrary contained or implied
herein, in the event that the Company changes the price or any other material
terms specified in the New Securities Notice after 60 days from the date of
mailing of the New Securities Notice, the provisions of Sections 3.5.2 and 3.5.3
above shall govern and the provisions of Section 3.5.4 above shall not apply.
3.5.6 Notwithstanding anything to the contrary contained or implied
herein, the right of first refusal granted herein may be waived or amended by
the vote of Holders holding at least a majority of the outstanding Registrable
Securities; provided however, that any such waiver or amendment shall not be
effective as to any Holder holding more than 500,000 shares of Registrable
Securities unless such Holder also consents to such a waiver or amendment.
3.5.7 The provisions of this Section 3.5 may only be amended or
modified upon the written consent of (i) the Company, (ii) the holders of at
least a majority of the Registrable Securities, and (iii) all Holders holding
more than 500,000 shares of Registrable Securities.
3.6 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 Common Stock issuable from time to time upon such
conversion.
3.7 Termination of Covenants. All covenants of the Company contained in
------------------------
Article III of this Agreement shall expire and terminate as to each Investor on
the Effective Date of the Company's first firm commitment underwritten public
offering registered under the Securities Act.
IV. MISCELLANEOUS.
-------------
4.1 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
4.2 Survival. The representations, warranties, covenants, and agreements
--------
made herein shall survive any investigation made by any Holder and the closing
of the transactions contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
4.3 Successors and Assigns. Except as otherwise expressly 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
4.4 Separability. In case any provision of the Agreement shall be
------------
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
4.5 Amendment and Waiver.
--------------------
4.5.1 Except for Section 3.5 which may only be amended or modified as
provided in Section 3.5.7, and except as otherwise expressly provided, this
Agreement may be amended or modified only upon the written consent of the
Company and the holders of at least a majority of the Registrable Securities.
4.5.2 Except for any obligations and rights arising under Section 3.5
which may only be waived as provided in Section 3.5.6, and except as otherwise
expressly provided, the obligations of the Company and the rights of the Holders
under this Agreement may be waived only with the written consent of the holders
of a majority of the Registrable Securities.
4.6 Delays or Omissions. It is agreed that no delay or omission to
-------------------
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part 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, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
4.7 Notices. All notices required or permitted hereunder shall be in
-------
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address as set forth on the signature pages hereof
or at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto.
4.8 Attorneys' Fees. In the event that any dispute among the parties to
---------------
this Agreement should result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
4.9 Titles and Subtitles. The titles of the sections and subsections of
--------------------
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
4.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph hereof.
COMPANY: INVESTOR:
MEGABIOS Corp: XXX XXXXX AND COMPANY
By: By: /s/ Xxxxx X. Xxxxxx
------------------------ --------------------------
Xxxxx X. Xxxxxx
Title: Title: Vice President and Treasurer
------------------------ --------------------------
Address: 000X Xxxxxx Xxxx Address: Lilly Corporate Center
Xxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
28
UEBERSEEK AG
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
LOMBARD, ODIER & CIE
PAR PROCURATION
By: /s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxxxx
-----------------------------------
XXXXX Xxxx WALTHERT Alain
Title: Fonde de pouvoir Mandataire commercial
--------------------------------
Address: 00 Xxx xx xx Xxxxxxxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
CREDIT SUISSE ZURICH
By:___________________________________
Title:________________________________
Address: c/o Swisspartners Investment Network AG
Am Schanzengraben 23
Xxxxxxxx 000
XX-0000 Xxxxxx
Xxxxxxxxxxx
00
XXXXX XXX XXXXXXXX
By: /s/ ^^
-----------------------------------
Title: MEMBER OF MEMBER OF THE
--------------------------------
MANAGEMENT EXECUTIVE BOARD
Address: Xxxxx X. Xxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
BSI-BANCA DELLA SVIZZERA ITALIANA
By:___________________________________
Title:________________________________
Address: Xxx Xxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
BANCA UNIONE DI CREDITO
By:___________________________________
Title:________________________________
Address: Xxx Xxxxxxxx 0
X. Xxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
CANTRADE PRIVAT BANK AG
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxxxxxxxx, 0
X.X. Xxx 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
00
XXXXX XXX XXXXXXXX
By:___________________________________
Title:________________________________
Address: Xxxxx X. Xxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
BSI-BANCA DELLA SVIZZERA ITALIANA
By: BS-BANCA DELLA SVIZZERA ITALIANA
-----------------------------------
Title: Vice President Vice President
--------------------------------
Address: Xxx Xxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
BANCA UNIONE DI CREDITO
By:___________________________________
Title:________________________________
Address: Xxx Xxxxxxxx 0
X. Xxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
CANTRADE PRIVAT BANK AG
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxxxxxxxx, 0
X.X. Xxx 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
00
XXXXX XXX XXXXXXXX
By:___________________________________
Title:________________________________
Address: Xxxxx X. Xxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
BSI-BANCA DELLA SVIZZERA ITALIANA
By:___________________________________
Title:________________________________
Address: Xxx Xxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
BANCA UNIOINE DI CREDITO
/s/ X. Xxxxx /s/ V. Vellano
By: X. XXXXX V. VELLANO
-----------------------------------
Title: ASSISTANT MANAGER JOINT GENERAL MANAGER
--------------------------------
Address: Xxx Xxxxxxxx 0
X. Xxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
CANTRADE PRIVAT BANK AG
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxxxxxxxx, 0
X.X. Xxx 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
31
CBG COMPAGNIE BANCAIRE GENEVE
By: /s/ X. Xxxxxxx X. Xxxxxxx
-----------------------------------
X. Xxxxxxx X. Xxxxxxx
Title:________________________________
Vice President First Vice President
Address: Avenue de Rumine 20
Xxxx Xxxxxxx 000
XX-0000 Xxxxxxxx
Xxxxxxxxxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
32
SWISSPARTNERS INVESTMENT NETWORK AG
By: Xxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: First Vice President
--------------------------------
Address: Am Schanzengraben, 23
Xxxxxxxx 000
XX-0000 Xxxxxx
Xxxxxxxxxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
33
CAT CAPITAL MARKET COMPANY LIMITED
Proxy for ABN Amro Bank
By: /s/ ^^ /s/ ^^
-----------------------------------
Title: DIRECTOR DIRECTOR
--------------------------------
Address: Room 000-0 0xx Xxxxx
Xxxxxxxx House
00 Xxxxxx Xxxxxx
Xxxxxxx
Xxxx Xxxx
BANQUE CANTONALE VAUDOISE
By:___________________________________
Title:________________________________
Address: X.X. 000
0000 Xxxxxxxx
Xxxxxxxxxxx
CREDIT SUISSE, PRIVATE BANKING
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
33
CAT CAPITAL MARKET COMPANY LIMITED
Proxy for ABN Amro Bank
By:___________________________________
Title:________________________________
Address: Room 000-0 0xx Xxxxx
Xxxxxxxx House
00 Xxxxxx Xxxxxx
Xxxxxxx
Xxxx Xxxx
BANQUE CANTONALE VAUDOISE
By: /s/ X. Xxxxxxxxx /s/ X. Xxxxxxxxxxxxx
-----------------------------------
X. XXXXXXXXX X. XXXXXXXXXXXXX
Title: Director Director-adjoint
--------------------------------
Address: X.X. 000
0000 Xxxxxxxx
Xxxxxxxxxxx
CREDIT SUISSE, PRIVATE BANKING
By:___________________________________
Title:________________________________
Address: Xxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
33
FIDURHONE S.A.
D. Xxxxxxxxxxxx J.-X. Xxxxxxxx
By: /s/ X. Xxxxxxxxxxxx /s/ X.X. Xxxxxxxx
-----------------------------------
Title: Directors
--------------------------------
Address: Xxx Xxxx 0
Xxxx Xxxx 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
XXXX FAMILY
By:___________________________________
Title:________________________________
X.X. Xxx 0000
Xxxxxxx
Xxxxxx Xxxx Xxxxxxxx
34
P.C. XXXX UND PARTNER AG
By: /s/ XXXXX X. XXXX
-----------------------------------
Title: President and CEO
--------------------------------
Xxxxxxxxxxxxxxxxx 0
XX 0000 Xxxxxxxxxx / Xxxxxx
Xxxxxxxxxxx
5/14/97 P.C. XXXX UND PARTNER AG
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
35
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Title:
--------------------------------
Xxxxxxxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
35
SCHEDULE A
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxxx X. Xxxxx 1,029,222 -- 173,812 __
Xxxx Xxxx Corp.
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 1,029,222 -- 135,187 __
c/o Kleiner Xxxxxxx Xxxxxxxxx & Xxxxx
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxx, XX 1,029,222 -- -- __
c/o Bodri Capital Management
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Xxxxxxxx VII -- 1,844,344 1,835,175 __
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Xxxxxxxx Associates Fund II -- 86,906 96,588 __
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Institutional Venture Partners V -- 946,313 938,105 __
0000 Xxxx Xxxx Xxxx
Xxxxx 0-000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Institutional Venture Mgmt. V -- 19,312 19,144 __
0000 Xxxx Xxxx Xxxx
Xxxxx 0-000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Falcon Technology Partners L.P. -- 193,125 155,816 __
000 Xxxxxx Xxxx
Xxxxx, XX 00000
Stanford University -- 77,250 54,311 24,417
c/o Stanford Management Company
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Technology Funding Venture -- -- 903,824 __
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Partners V, an Aggressive Growth Fund,
L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
Technology Funding Medical -- -- 301,275 __
Partners I, L.P.
0000 Xxxxxxx xx xxx Xxxxxx
Xxx Xxxxx, XX 00000
CV Sofinnova Ventures -- -- 282,646 __
Partners III
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, M.D.
Sofinnova Ventures III L.P. -- -- 319,984 --
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, M.D.
GC&H Investments -- -- 34,762 --
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxxxx X. XxXxxx, III -- -- 100,000 --
c/o MEGABIOS Corp.
000X Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx -- -- 38,625 --
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Xxxx Xxxxxx Xxxxxxxx/ -- -- 42,487 --
FBO Xxxxxx X. Xxxxxxxx Money Purchase
Plan
dtd 12/20/91
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Prudential Securities -- -- 19,313 --
c/o Xxxxxx X. Xxxxxxxx XXX Rollover
dtd 09/15/92
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
L. Xxxx Wine -- -- 58,613 --
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Alta V Limited Partnership -- -- 1,528,930 197,920
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxx Usufruct FBO Xxxxxxx X. -- -- 19,313 --
Xxxxx
c/o Cowen & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
A.R. Xxxxxxxxxxxx -- -- 38,625 --
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Beechvale, Inc. -- -- 19,313 --
x/x Xxxxx & Xx.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Charter Ventures II, L.P. -- -- 386,250 --
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: X. Xxxx Xxxxx
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Customs House Partners -- -- 16,068 2,080
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Xxxxx Xxxxxx -- -- 77,250 14,337
0000 Xxx Xxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000-0000
Xxxxx Xxxxxxx -- -- 38,625 --
0000 Xxx Xxxxxx, #00
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxx -- -- 15,449 --
c/o Xxxxxxx X. Xxxxxx
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx -- -- 15,449 --
c/o Xxxxxxx X. Xxxxxx
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxxx X. Xxxxxx -- -- 772,499 --
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx -- -- 38,625 --
c/o Xxxxxxx X. Xxxxxx
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx -- -- 15,449 --
c/o Xxxxxxx X. Xxxxxx
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx -- -- 15,449 --
c/o Xxxxxxx X. Xxxxxx
Ardsley Partners
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx -- -- 19,313 --
c/o Harvard Management Corporation
000 Xxxxxxxx Xxxxxx, 00xx Floor
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxx, XX 00000
Xxxxxxx XxXxxxxx -- -- 19,313 --
c/o Cowen & Co.
Two International Place
00xx Xxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxx, Xx. -- -- 38,625 --
x/x Xxxxxxxxx & Xxxxx
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx -- -- 50,000 --
c/o Bear Xxxxxxx & Co.
Three First National
Xxxxxxx, XX 00000
Old Blue & Green Associates -- -- 19,313 --
x/x Xxxxx & Xx.
Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx -- -- 50,000 --
c/o Bear Xxxxxxx & Co.
Three First National
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx & Xxxxxx Xxxxxxx, as -- -- 78,250 14,337
Trustees of the Xxxxxxx Family Trust
c/o Xxxxxx Xxxxxxx
US Venture Partners
0000 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Ziff Asset Management, L.P. -- -- 772,449 143,372
c/o Goldman, Sachs & Co.
Custody Department
Attn: Xxxxx Xxxxxx
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
ABN Amro Bank -- -- -- 965,000
c/o CAT Capital Market Company
Room 000-0 0xx Xxxxx
Xxxxxxxx House
20 Pedder Street
Central
Hong Kong
Uberseebank AG -- -- -- 195,000
c/o CAT Capital Market Company
Xxxx 000-0 0xx Xxxxx
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Xxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxx
Xxxx Xxxx
Ryco & Co. -- -- -- 1,800,000
c/o Chase Manhattan Bank
a/c State Street Bank Trust
0 Xxx Xxxx Xxxxx
Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
(Lombard Odier & Cie
00 xxx xx xx Xxxxxxxxxx
1211 Xxxxxx 00
Xxxxxxxxxxx)
Credit Suisse Zurich -- -- -- 100,000
c/o Swisspartners Investment Network AG
AM Schanzengraben 23
Xxxxxxxx 000
XX-0000 Xxxxxx
Xxxxxxxxxxx
Experta Zurich -- -- -- 500,000
c/o Swisspartners Investment Network AG
AM Schanzengraben 23
Postfach 970
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
XX-0000 Xxxxxx
Switzerland
Xxxxxxxx Xxxxxxxxx -- -- -- 60,000
Xxxxxxxxxxx 00
XX-0000 Xxxxxxx
Xxxxxxxxxxx
Xxx Xxxxx Xxxxxxx -- -- -- 60,000
x/x Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx 00
XX-0000 Xxxxxxx
Xxxxxxxxxxx
BSI-Banca della Svizzera Italiana -- -- -- 210,000
Xxx Xxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
attn: De Xxxxxxx Xxxxxxx
Credit Suisse, Private Banking -- -- -- 120,000
Xxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
attn: X. Xxxxxxxxxx/Xx. Xxxxxxx
Kantonalbank Schwyz -- -- -- 10,000
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
Postfach
XX-0000 Xxxxxx
Xxxxxxxxxxx
attn: Xxxxx Xxxxxxx WSH
Banque Cantonale Vaudoise -- -- -- 47,480
X.X. 000
0000 Xxxxxxxx
Xxxxxxxxxxx
attn: X. Xxxxxxxxx
Banca Unione di Credito -- -- -- 40,000
Xxx Xxxxxxxx 0
X. Xxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
attn: X. Xxxxx
Banca del Gottardo -- -- -- 110,000
Xxxxx X. Xxxxxxxxx 0
0000 Xxxxxx
Xxxxxxxxxxx
attn: H. Gugolz/X. Xxxx
CBG Compagnie Bancaire Geneve -- -- -- 20,000
Avenue de Rumine 20
Case Postale 220
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
CH-1001 Lausanne
Switzerland
attn: X. Xxxxxxx/X. Xxxxxxx
Fidurhone S.A. -- -- -- 20,000
Xxx Xxxx 0
Xxxx Xxxx 0000
XX-0000 Xxxxxx
Xxxxxxxxxxx
attn: X. Xxxxxxxxxxxx
Xxxx Family -- -- -- 56,057
X.X. Xxx 0000
Xxxxxxx
Xxxxxx Xxxx Xxxxxxxx
attn: Xx. Xxxxxxxx Xxxx
Xxxxxxx X. Wine -- -- -- 4,000
c/o L. Xxxx Wine
c/o Kirkland & Xxxxx
000 00xx Xxxxxx XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Xxxxxxx Capital Advisors -- -- -- 6,000
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Name and Address No. of Shares of No. of Shares of No. of Shares of No. of Shares of
Series A Series B Series C Series E
Preferred Stock Preferred Stock Preferred Stock Preferred Stock
attn: Xxxxxxx Xxxxxxx
