Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (the "AGREEMENT") is made as of May 31,
2007, by and among Third Wave Japan, Inc., a Japanese corporation (the
"COMPANY"), Third Wave Technologies, Inc., a Delaware corporation (the
"PARENT"), and the entities listed on Exhibit A attached hereto (each, an
"INVESTOR," and collectively, the "INVESTORS").
RECITALS
A. WHEREAS: The Parent and some of the Investors entered into an Investors
Rights Agreement dated April 21, 2006 (the "Original XXX").
B. WHEREAS: Some of the Investors have purchased from the Company shares of
its Series A Preferred Stock, pursuant to the Series A Preferred Stock Purchase
Agreement between the Company and the Investors, dated March 31, 2006 (the
"SERIES A PURCHASE AGREEMENT").
C. WHEREAS: The Investors intend to purchase from the Company shares of its
Series A Preferred Stock, pursuant to the Series A Preferred Stock Purchase
Agreement between the Company and the Investors, dated of even date herewith
(the "SERIES A PURCHASE AGREEMENT NO.2").
D. WHEREAS: In consideration for the Investors' investments in the Company,
the Investors, the Company and the Parent have agreed to enter into this
Agreement and to terminate the Original XXX upon the execution of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and other consideration, the receipt and adequacy of which hereby is
acknowledged, the parties hereto agree as follows:
SECTION 1
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the following
meanings:
1.1 "AFFILIATE" means any business entity which controls, is controlled by
or is under common control of a party and, for the purposes of this definition,
a business entity shall be deemed to "control" another business entity if it
owns, directly or indirectly, at least twenty percent (20%) of the shares of
such business entity or any other comparable equity or ownership interest with
respect to a business entity other than a corporation.;
1.2 "CHANGE OF CONTROL" means (i) a merger or consolidation of the Company
or Parent, as the case may be, or other transaction where the Company's
shareholders or the Parent's stockholders, as the case may be, immediately
before the transaction do not hold more than fifty percent (50%) of the
outstanding voting shares of the surviving entity after such transaction, or
(ii) a sale, lease, transfer
or other disposition of all or substantially all of the assets of the Company or
the Parent, as the case may be.
1.3 "ELIGIBLE INVESTORS" shall mean the Shareholders other than the Seller.
1.4 "CO-SALE SHARE" means, as to each Eligible Investor's Right of Co-Sale,
the percentage determined by dividing (i) the number of shares of Stock held by
the Eligible Investor by (ii) the number of shares of Stock held by the Seller
and all Eligible Investors participating in the Right of Co-Sale pursuant to
Section 6 hereof.
1.5 "NEW SECURITIES" shall have the meaning in Section 3.2.
1.6 "PREEMPTIVE RIGHT" means the preemptive right provided to the
Shareholders in Section 3 of this Agreement.
1.7 "QUALIFIED IPO" means the Company's sale of its common stock in a bona
fide, firm commitment underwriting pursuant to a registration statement filed
with the Japanese Financial Services Agency, with aggregate proceeds to the
Company of at least Y1,000,000,000 and a per share price to the public of at
least two times the price paid by the Investors for the Company's Series A
Preferred Stock under the Series A Purchase Agreement No. 2.
1.8 "RIGHT OF CO-SALE" means the right of co-sale provided to the Eligible
Investors in Section 6 of this Agreement.
1.9 "RIGHT OF FIRST REFUSAL" means the right of first refusal provided to
the Company and the Eligible Investors in Section 5 of this Agreement.
1.10 "SERIES A PREFERRED STOCK" means the Company's Series A Preferred
Stock.
1.11 "SERIES A PURCHASE AGREEMENT" and "SERIES A PURCHASE AGREEMENT NO.2"
shall have the meaning in the Recitals.
1.12 "SELLER" means the Parent or any Investor proposing to Transfer Stock.
1.13 "SHAREHOLDERS" means the Parent and the Investors.
1.14 "STOCK" means and includes all common stock and preferred stock of the
Company.
1.15 "TRANSFER" means and includes any sale, assignment, encumbrance,
hypothecation, pledge, conveyance in trust, gift or other transfer or
disposition of any kind, including but not limited to transfers to receivers,
levying creditors, trustees or receivers in bankruptcy proceedings or general
assignees for the benefit of creditors, whether voluntary or by operation of
law, directly or indirectly, except:
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(a) any transfers by the Parent in connection with a Change of Control
of the Parent;
(b) any transfers by any Shareholder to its Affiliate other than
transfers between TWJ and TWT;
(c) any bona fide gift, provided that the Seller shall inform the
Eligible Investors of such gift prior to effecting it and provided that the
pledgee, transferee or donee or other recipient executes a counterpart copy of
this Agreement and becomes bound thereby as was the Seller;
(d) by operation of law; or
(e) any transfer to the Company or an Eligible Investor pursuant to
the terms of this Agreement.
1.16 "BUSINESS DAY" means any day from Monday to Friday, except for the
holidays on which commercial banking institutions in either Japan or the State
of Wisconsin in the US are authorized or obligated by law to be closed.
SECTION 2
INFORMATION AND INSPECTION RIGHTS
2.1 INFORMATION RIGHTS. So long as at least fifty percent (50%) of the
Series A Preferred Stock remains outstanding and the Investors continue to own
at least fifty percent (50%) of the shares of such Series A Preferred Stock (or
shares of common stock issued upon conversion of the Series A Preferred Stock)
held by the Investors as of the date of this Agreement, the Company will furnish
the following reports to any Investor that owns at least sixteen percent (16%)
of the then issued and outstanding Series A Preferred Stock:
(a) within one hundred twenty (120) days after the end of each fiscal
year of the Company, a consolidated balance sheet of the Company and its
subsidiaries, if any, as at the end of such fiscal year, and consolidated
statements of income and cash flows of the Company and its subsidiaries, if any,
for such year, prepared in accordance with generally accepted accounting
principles in Japan consistently applied, certified by independent public
accountants of recognized national standing selected by the Company.
(b) within forty-five (45) days after the end of the first, second,
and third quarterly accounting periods in each fiscal year of the Company, an
unaudited consolidated balance sheet of the Company and its subsidiaries, if
any, as of the end of each such quarterly period, and unaudited consolidated
statements of income and cash flows of the Company and its subsidiaries, if any,
for such period.
(c) within fifteen (15) days after the end of each month, an unaudited
consolidated balance sheet of the Company and its subsidiaries, if any, as of
the end of such monthly period, and consolidated statements of income and cash
flows of the Company and its subsidiaries, if any, for such period.
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(d) within forty-five (45) days after the end of each fiscal quarter,
an up-to-date capitalization table, including the names of each shareholder and
option or warrant holder and the number of shares, options or warrants held by
each such holder, certified by the management member chiefly responsible for the
finances of the Company.
(e) at least thirty (30) days prior to the beginning of each fiscal
year, an operating plan for such fiscal year, including consolidated capital and
operating expense budgets, cash flow projections and income and loss projections
for the Company and its subsidiaries in respect of such fiscal year, all
itemized in reasonable detail and prepared on a monthly basis, and, promptly
after preparation, any revisions to any of the foregoing.
2.2 INSPECTION RIGHTS. So long as at least fifty percent (50%) of the
Series A Preferred Stock remains outstanding and the Investors continue to own
at least fifty percent (50%) of the shares of such Series A Preferred Stock (or
shares of common stock issued upon conversion of the Series A Preferred Stock)
held by the Investors as of the date of this Agreement, the Company will afford
to each Investor that owns at least sixteen percent (16%) of the then issued and
outstanding Series A Preferred Stock, and to each such Investor's accountants
and counsel, reasonable access during normal business hours and with reasonable
advance notification, to all of the Company's respective properties, books and
records. Each such Investor shall have such other reasonable access, with
reasonable advance notification, to management and information as is necessary
for it to comply with applicable laws and regulations and reporting obligations.
The Company shall not be required to disclose details of contracts with or work
performed for specific customers and other business partners where to do so
would violate confidentiality obligations to those parties. The Investors may
exercise their rights under this Section 2.2 only for purposes reasonably
related to their interests under this Agreement and related agreements. The
rights granted pursuant to this Section 2.2 may not be assigned or otherwise
conveyed by the Investors or by any subsequent transferee of any such rights
without the prior written consent of the Company.
2.3 CONFIDENTIALITY. Anything in Section 2 to the contrary notwithstanding,
no Investor by reason of this Agreement shall have access to any trade secrets
or confidential information of the Company. Each Investor hereby agrees to hold
in the strictest confidence and trust, and to take reasonable precautions to
prevent the unauthorized use or disclosure of, any confidential information
provided pursuant to this Agreement. The Company shall not be required to comply
with any obligation under this Section 2 in respect of any Investor whom the
Company reasonably determines to be a competitor or an officer, employee,
director or holder of more than ten percent (10%) of the stock of a competitor.
2.4 TERMINATION OF INFORMATION AND INSPECTION RIGHTS. Each Investor's
information and inspection rights set forth in this Section 2 shall terminate in
accordance with Section 10.1 hereof.
SECTION 3
PREEMPTIVE RIGHTS
3.1 PREEMPTIVE RIGHTS TO SHAREHOLDERS. The Company hereby grants to the
Shareholders, the preemptive right to purchase a pro rata share of New
Securities (as defined in
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Section 3.2) which the Company may, from time to time, propose to sell and issue
(the "PREEMPTIVE RIGHT"). A Shareholder's pro rata share, for purposes of the
Preemptive Right, is the ratio of the number of shares of common stock owned by
such Shareholder immediately prior to the issuance of New Securities, assuming
full conversion of the Shares and exercise of any option or warrant held by said
Shareholder, to the total number of shares of common stock outstanding
immediately prior to the issuance of New Securities, assuming full conversion of
the Shares and exercise of all outstanding convertible securities, rights,
options and warrants to acquire common stock of the Company. Each Shareholder
shall have a right of over-allotment such that if any Shareholder fails to
exercise its right hereunder to purchase its pro rata share of New Securities,
the other Shareholders may purchase the non-purchasing Shareholder's portion on
a pro rata basis within ten (10) Business Days from the Purchase Deadline (as
defined below).
3.2 NEW SECURITIES. "NEW SECURITIES" shall mean any capital stock
(including common stock and/or preferred stock) of the Company whether now
authorized or not, and securities of any type whatsoever that are, or may
become, convertible into capital stock; provided that the term "New Securities"
does not include:
(a) securities purchased under the Series A Purchase Agreement or
Series A Purchase Agreement No.2;
(b) shares of common stock issued or issuable upon conversion of
shares of preferred stock;
(c) shares of common stock issued or issuable upon exercise of any
warrants prior to the date of this Agreement;
(d) shares of common stock issued or issuable (including securities
convertible into or exercisable for common stock) to officers, directors and
employees of, or consultants to, the Company pursuant to stock grants, option
plans, purchase plans or other stock incentive programs or similar arrangements
approved by the Board of Directors of the Company, or upon exercise of options
or warrants granted to such parties pursuant to any such plan or arrangement;
(e) shares of common stock issued upon the exercise or conversion of
options or convertible securities of the Company outstanding as of the date of
this Agreement, as amended, or that are subsequently issued pursuant to the
carve-outs of Sections 3.2(a)-(j) hereof, as amended;
(f) shares of common stock issued or issuable (including securities
convertible into or exercisable for common stock) as a dividend or distribution
on preferred stock, or pursuant to any event for which adjustment is made to the
number of shares of common stock outstanding, including, without limitation, a
stock split, stock dividend, subdivision of shares of common stock or other
similar transaction, or pursuant to any other event for which adjustment is made
pursuant to the Articles of Incorporation of the Company (the "ARTICLES");
(g) shares of common stock issued in a registered public offering
under the Securities and Exchange Law, as amended, pursuant to which all
outstanding shares of preferred stock are automatically converted into common
stock;
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(h) shares of common stock issued or issuable (including securities
convertible into or exercisable for common stock) pursuant to the acquisition of
another entity by the Company by merger, purchase of equity, purchase of
substantially all of the assets, or other reorganization, or pursuant to a joint
venture agreement, provided, that such issuances are approved by the Board of
Directors of the Company;
(i) shares of common stock issued or issuable (including securities
convertible into or exercisable for common stock) to lenders, service providers,
equipment lessors or other financial institutions pursuant to a commercial
leasing, debt financing, service or consulting transaction, each as approved by
the Board of Directors of the Company; and
(j) shares of common stock issued or issuable (including securities
convertible into or exercisable for common stock) in connection with sponsored
research, collaboration, license, development, OEM, marketing, acquisition, or
other similar agreements or strategic transactions approved by the Board of
Directors of the Company.
3.3 NOTICE OF EXERCISE. In the event the Company proposes to undertake an
issuance of New Securities, it shall give each Shareholder written notice of its
intention, describing the type of New Securities, and their price and the
general terms upon which the Company proposes to issue the same. Each
Shareholder shall have ten (10) Business Days after any such notice is mailed or
delivered (the "PURCHASE DEADLINE") to agree to purchase such Shareholder's pro
rata share of such New Securities for the price and upon the terms specified in
the notice by giving written notice to the Company and stating therein the
quantity of New Securities to be purchased.
3.4 FAILURE TO EXERCISE. In the event the Shareholders fail to exercise
fully their Preemptive Rights within said ten (10) Business Day period and after
the expiration of the additional ten (10) Business Day period for the exercise
of the over-allotment provisions of Section 3.1, the Company shall have ninety
(90) 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 ninety
(90) days from the date of said agreement) to sell the New Securities respecting
which the Shareholders' Preemptive Rights set forth in Section 3.1 were not
exercised, at a price and upon terms no more favorable to the purchasers thereof
than specified in the Company's notice to Shareholders pursuant to Section 3.3.
In the event the Company has not sold the New Securities within such ninety (90)
day period, the Company shall not thereafter issue or sell any New Securities,
without first again offering such securities to the Shareholders in the manner
provided in Section 3.1 above.
3.5 ASSIGNMENT OF PREEMPTIVE RIGHT. The Preemptive Right may not be
assigned or transferred, except that (i) such right is assignable by each
Shareholder to the Affiliates of any such Shareholder, and (ii) such right is
assignable between and among any of the Shareholders.
3.6 INAPPLICABILITY AND TERMINATION OF PREEMPTIVE RIGHT. The Preemptive
Right shall not be applicable to the Company's Qualified IPO, and shall
terminate in accordance with Section 10.1 hereof.
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SECTION 4
RESTRICTIONS ON TRANSFER
4.1 GENERAL. Before a Seller may Transfer any Stock, securities convertible
into Stock, or Stock issued upon conversion of any securities held by the Seller
as of the date hereof (as adjusted for any stock dividends, stock splits,
recapitalizations and the like), the Company or its assignee(s) and the Eligible
Investors shall have a Right of First Refusal to purchase such Stock on the
terms and conditions set forth herein.
4.2 NOTICE OF PROPOSED TRANSFER. Prior to the Seller Transferring any
Stock, the Seller shall deliver to the Company and the Eligible Investors a
written notice (the "TRANSFER NOTICE") stating: (i) the Seller's bona fide
intention to sell or otherwise Transfer such Stock (the "OFFERED SHARES"); (ii)
the name, address and phone number of each proposed purchaser or other
transferee ("PROPOSED TRANSFEREE"); (iii) the aggregate number of Offered Shares
to be Transferred to each Proposed Transferee; (iv) the bona fide cash price or
other consideration for which the Seller proposes to Transfer the Offered Shares
(the "OFFERED PRICE"); (v) each Eligible Investor's right to exercise either its
Right of First Refusal or its Right of Co-Sale (but not both rights) with
respect to the Offered Shares; and (vi) a deadline, consistent with the terms of
this Agreement, within which the Company and Eligible Investors must exercise
such rights.
SECTION 5
RIGHT OF FIRST REFUSAL
5.1 TRANSFER OF SHARES TO THE COMPANY. The Company may elect itself as the
transferee of the Offered Shares, provided that the Company shall purchase all
but not less than all of the Offered Shares and shall give written notice of
such election to the Seller within fifteen (15) Business Days after the date on
which the Transfer Notice is, pursuant to Section 11.1 hereof, deemed to have
been delivered to the Company and the Eligible Investors (the "INITIAL REFUSAL
PERIOD").
5.2 INITIAL EXERCISE BY THE ELIGIBLE INVESTORS. Subject to the limitations
of this Section 5.2, the Eligible Investors and their Affiliates appointed by
the Eligible Investors shall have the Right of First Refusal to purchase all or
any part of the Offered Shares should the Company not elect itself as the
transferee of the Offered Shares pursuant to Section 5.1 hereof; provided that
each Eligible Investor so electing gives written notice of the exercise of such
right to the Seller within the Initial Refusal Period. Upon the earlier to occur
of (a) the termination of the Initial Refusal Period and (b) the time when the
Seller has received written confirmation from the Company regarding its exercise
of its Right First Refusal, the Eligible Investors' Rights of First Refusal
shall expire. To the extent that the Company elects not to purchase the Offered
Shares, the Company shall allocate the Offered Shares to the Eligible Investors,
and shall give written notice thereof to the Seller within the Initial Refusal
Period. To the extent that the aggregate number of shares that the Eligible
Investors desire to purchase exceeds the number of Offered Shares, each Eligible
Investor will be entitled to purchase a fraction of the Offered Shares, the
numerator of which shall be the number of shares of common stock (assuming
conversion of all securities then outstanding that are convertible into common
stock) owned by such Eligible Investor on the date of the Transfer Notice and
the denominator of which shall be the number
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of shares of Stock held by all Eligible Investors exercising their Right of
First Refusal. Within five (5) Business Days after the expiration of the Initial
Refusal Period (the "CONFIRMATION PERIOD"), the Seller will give written notice
to the Company and each Eligible Investor specifying the number of Offered
Shares that was subscribed by the Company or the Eligible Investors exercising
their Rights of First Refusal, as the case may be (the "CONFIRMATION NOTICE").
The Confirmation Notice shall specify the number of Offered Shares to be
purchased by the Company or those Eligible Investors who are exercising their
Rights of First Refusal. If the Company does not elect itself as the transferee
of the Offered Shares, the Confirmation Notice shall also specify the number of
Offered Shares not purchased, if any, and list each Participating Investor's (as
defined in Section 5.3 hereof) share of the Offered Shares. This Right of First
Refusal shall not apply with respect to Offered Shares sold by the Investors
under the Right of Co-Sale.
5.3 SUBSEQUENT EXERCISE BY THE ELIGIBLE INVESTORS. Each Eligible Investor
electing to exercise its Right of First Refusal to purchase at least its full
pro rata share of the Offered Shares under Section 5.2 hereof (a "PARTICIPATING
INVESTOR") shall have a right of reallotment such that if, after the Eligible
Investors exercise their respective Rights of First Refusal, there remain any
Offered Shares that are not purchased by the Eligible Investors within the
Initial Refusal Period, then each such Participating Investor may elect to
purchase all (or any portion of) such Participating Investor's pro rata share of
the Offered Shares not previously purchased. For the purpose of the preceding
sentence, each Participating Investor's pro rata share shall be a fraction of
the Offered Shares not previously purchased, the numerator of which shall be the
number of shares of common stock (assuming conversion of all securities then
outstanding that are convertible into common stock) owned by such Participating
Investor on the date of the Transfer Notice and the denominator of which shall
be the total number of shares of common stock (assuming conversion of all
securities then outstanding that are convertible into common stock) held by all
Participating Investors on the date of the Transfer Notice. Each Eligible
Investor exercising its right pursuant to this Section 5.3 shall do so by giving
written notice to the Seller within seven (7) Business Days after delivery of
the Confirmation Notice to such Eligible Investor pursuant to Section 11.1 (the
"SUBSEQUENT REFUSAL PERIOD").
5.4 PURCHASE PRICE. The purchase price for the Offered Shares to be
purchased by the Company or by an Eligible Investor exercising its Right of
First Refusal under this Agreement will be the Offered Price, and will be
payable as set forth in Section 5.5 hereof. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration will be determined by the Board of Directors of the Company in
good faith, which determination will be binding upon the Company, each Eligible
Investor and the Seller, absent fraud or error.
5.5 PAYMENT. Payment of the purchase price for the Offered Shares purchased
by the Company or by an Eligible Investor exercising its Right of First Refusal
will be made within ten (10) Business Days after the later of (i) the end of the
Confirmation Notice Period, or (ii) where applicable, the end of the Subsequent
Refusal Period. Payment of the purchase price will be made, at the option of the
Company or the exercising Eligible Investor, (i) in cash (by check), (ii) by
cancellation of all or a portion of any outstanding indebtedness of the Seller
to the Company or the Eligible Investor, as the case may be, or (iii) by any
combination of the foregoing.
5.6 RIGHTS AS A SHAREHOLDER. If the Company or any Eligible Investor
exercises its Right of First Refusal to purchase the Offered Shares, then, upon
the date that the notice of such exercise by
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the Company or any Eligible Investor is deemed delivered to the Seller pursuant
to Section 11.1 hereof, the Seller will have no further rights as a holder of
the Offered Shares except the right to receive payment for the Offered Shares
from the Company or the Eligible Investor(s), as the case may be, in accordance
with the terms of this Agreement, and the Seller will forthwith cause all
certificate(s) evidencing such Offered Shares, properly endorsed for Transfer,
to be surrendered for Transfer to the Company or the Eligible Investor, as the
case may be.
5.7 SELLER'S RIGHT TO TRANSFER. If the Company and each Eligible Investor
have not elected to purchase all or any portion of the Offered Shares, then,
with respect to such portion of Offered Shares (the "TRANSFERABLE PORTION"), the
Right of First Refusal shall not apply to such Transfer, and the Seller may
Transfer the Transferable Portion to any Proposed Transferee, at the Offered
Price or at a higher price; provided that such Transfer shall still be subject
to the Investors' Right of Co-Sale as defined in Section 6 hereof; provided
further that such Transfer (i) is consummated within ten (10) Business Days
after the end of the Subsequent Refusal Period, (ii) is on terms no more
favorable than the terms proposed in the Transfer Notice and (iii) is in
accordance with all the terms of this Agreement. If the Offered Shares are not
so Transferred during such ten (10) Business Day period, then the Seller may not
Transfer any of such Offered Shares without complying again in full with the
provisions of this Agreement.
SECTION 6
RIGHT OF CO-SALE
6.1 EXERCISE BY THE ELIGIBLE INVESTORS. To the extent that the Company and
the Eligible Investors do not exercise their respective Rights of First Refusal
with respect to the Offered Shares pursuant to Section 5 hereof, then each
Eligible Investor who has not exercised its Right of First Refusal in Section 5
(a "CO-SALE ELIGIBLE INVESTOR") shall have the right to participate in such sale
of Offered Shares on the same terms and conditions as specified in the Transfer
Notice, up to its Co-Sale Share, by notifying the Seller in writing within ten
(10) Business Days after the later of (1) delivery of the Confirmation Notice,
or (2) the end of the Subsequent Refusal Period, as applicable (the "INITIAL
CO-SALE PERIOD"); provided, however, that no Co-Sale Eligible Investor shall
have a Co-Sale Right in connection with any transfer set forth in Section 1.15
(a) to (e). The Co-Sale Eligible Investor shall indicate the number of shares of
Stock it then holds that it wishes to sell pursuant to this Section 6.1 (the
"SELLING INVESTOR SHARES"). To the extent that one or more of the Co-Sale
Eligible Investors exercises their Rights of Co-Sale as described in this
Section 6.1 (a "SELLING INVESTOR" for purposes of this Section 6), the number of
Offered Shares that the Seller may sell in the Transfer shall be correspondingly
reduced. If, after the end of the Initial Co-Sale Period, any Co-Sale Eligible
Investors decline to participate in sales under this Section 6, then, within
five (5) Business Days after the Initial Co-Sale Period, the Seller will notify
the Selling Investors of the extent to which other Co-Sale Eligible Investors
declined to exercise their Co-Sale Right (the "CO-SALE NOTICE"). The Selling
Investors shall within ten (10) Business Days after delivery of the Co-Sale
Notice (the "SUBSEQUENT CO-SALE PERIOD") notify the Seller of the additional
Selling Investor Shares that such Selling Investor wishes to sell. If the
aggregate amount of Selling Investor Shares proposed to be sold by Selling
Investors under this Subsequent Co-Sale Period exceeds the number of Offered
Shares stated in the Co-Sale Notice, the number of Selling Investor Shares that
each Selling Investor may sell under this Subsequent Co-Sale Period shall be
reduced pro rata according to each Selling Investor's Co-Sale
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Share. The sale of the Offered Shares and the Selling Investor Shares shall
occur within twenty-five (25) Business Days from the beginning of the Initial
Co-Sale Period (the "CLOSING"). This Right of Co-Sale shall not apply with
respect to Offered Shares sold or to be sold to Eligible Investors or the
Company under the Right of First Refusal.
6.2 CONSUMMATION OF CO-SALE. A Selling Investor may exercise the Right of
Co-Sale by delivering to the Seller at or before the Closing, one or more
certificates, properly endorsed for Transfer, representing a number of Selling
Investor Shares not to exceed the number of shares of Stock to which Selling
Investor is entitled in Section 6.1, representing such Selling Investor Shares
to be Transferred by the Seller on behalf of the Selling Investor. If the
Selling Investor does not hold a certificate in that series, class or type of
stock representing the number of Selling Investor Shares to be sold by such
Selling Investor pursuant to this Section 6, then the Company shall promptly
issue a certificate representing the proper number of Selling Investor Shares to
be sold pursuant to this Right of Co-Sale. Following the Closing, the Company
shall deliver a certificate for the remaining balance of the Stock held by the
Selling Investor and not sold pursuant to this Section 6, if any, to such
Selling Investor. At the Closing, such certificates or other instruments will be
Transferred and delivered to the Transferee as set forth in the Transfer Notice
in consummation of the Transfer of the Offered Shares pursuant to the terms and
conditions specified in the Transfer Notice, and the Seller will remit, or will
cause to be remitted, to each Selling Investor, within ten (10) days after such
Closing, that portion of the proceeds of the Transfer to which each Selling
Investor is entitled by reason of each Selling Investor's participation in such
Transfer pursuant to the Right of Co-Sale.
6.3 MULTIPLE SERIES, CLASS OR TYPE OF STOCK. If the Offered Shares consist
of more than one series, class or type of Stock, the Seller has the right to
Transfer hereunder each such series, class or type; provided that if, as to the
Right of Co-Sale, a Selling Investor does not hold any of such series, class or
type, and the Proposed Transferee is not willing, at the Closing, to purchase
some other series, class or type of Stock from such Selling Investor, or is
unwilling to purchase any Stock from such Selling Investor at the Closing, then
such Selling Investor will have the put right set forth in Section 6.4(b)
hereof.
6.4 REFUSAL TO TRANSFER: PUT RIGHT.
(a) Refusal to Transfer. Any attempt by any Seller to Transfer any
Stock in violation of any provision of this Agreement will be void. The Company
will not be required (i) to transfer on its books any Stock that has been sold,
gifted or otherwise Transferred in violation of this Agreement, or (ii) to treat
as owner of such Stock, or to accord the right to vote or pay dividends to any
purchaser, donee or other transferee to whom such Stock may have been so
Transferred.
(b) Put Right. If a Seller Transfers any Stock in contravention of the
Investors' Right of Co-Sale under this Agreement (a "PROHIBITED TRANSFER"), or
if the Proposed Transferee of Offered Shares desires to purchase a class, series
or type of Stock offered by the Seller but not held by an Investor or the
Proposed Transferee is unwilling to purchase any Stock from an Investor, such
Investor may, by delivery of written notice to such Seller (a "PUT NOTICE")
within ten (10) Business Days after the later of (i) the Closing, or (ii) the
date on which such Investor becomes aware of the Prohibited Transfer or the
terms thereof, require such Seller to purchase from such Investor, for cash or
such other consideration as the Seller received in the Prohibited Transfer or at
the Closing, a number of Selling
10
Investor Shares (of the same class or type as Transferred in the Prohibited
Transfer or at the Closing if such Investor then owns Stock of such class or
type; otherwise of preferred stock or common stock) having a purchase price
equal to the aggregate purchase price that the Investor would have received in
the closing of such Prohibited Transfer if such Investor had elected to exercise
its Right of Co-Sale with respect thereto or in the Closing if the Proposed
Transferee had been willing to purchase the Selling Investor Shares of the
Investor. The closing of such sale to the Seller will occur within ten (10) days
after the date of such Investor's Put Notice to such Seller.
SECTION 7
RESTRICTIVE LEGEND AND STOP TRANSFER ORDERS
7.1 TRANSFERS. No securities shall be Transferred unless (i) such Transfer
is made with the prior written consent of the Company's Board of Directors,
which consent shall not be unreasonably withheld, and (ii) prior to such
Transfer, the transferee or transferees sign a counterpart to this Agreement
pursuant to which it or they agree to be bound by the terms of this Agreement.
The Company shall not be required (a) to transfer on its books any shares that
shall have been sold or Transferred in violation of any of the provisions of
this Agreement or (b) to treat as the owner of such shares or to accord the
right to vote as such owner or to pay dividends to any transferee to whom such
shares shall have been so Transferred.
7.2 LEGENDS. The Shareholders understand and agree that the Company will
cause the legends set forth below, or legends substantially equivalent thereto,
to be placed upon any certificate(s) or other documents or instruments
evidencing ownership of Stock by the Shareholders:
"ANY TRANSFER OR SALE OF THE SHARES REPRESENTED HEREBY IS SUBJECT TO
APPROVAL BY THE BOARD OF DIRECTORS OF THE COMPANY."
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO AN INVESTOR RIGHTS AGREEMENT (A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY) AND BY ACCEPTING ANY
INTEREST IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID INVESTOR
RIGHTS AGREEMENT."
7.3 STOP TRANSFER INSTRUCTIONS. In order to ensure compliance with the
restrictions referred to herein, each Seller agrees that the Company may issue
appropriate "stop transfer" certificates or instructions and that, if the
Company Transfers its own securities, it may make appropriate notations to the
same effect in its records.
11
SECTION 8
OPTIONS UPON A CHANGE OF CONTROL OF PARENT
8.1 CALL OPTION.
a. Exercise by Parent. During the time period commencing on the
effective date of a Change of Control of the Parent and terminating at the end
of the ninetieth (90th ) day thereafter (the "Option Termination Date"), the
Parent shall be entitled, at its option, to require the Investors to sell all
(but not less than all) of their shares of Stock (the "Called Stock") to the
Parent or its designee (which may be the Company) (the "Call Option"). The
Parent may exercise the Call Option by delivery of written notice (the "Call
Notice") to the Investors at any time after the public announcement of the
Change of Control of the Parent and before fifteen (15) days prior to the Option
Termination Date, provided that, the Call Option may only be consummated on or
after the effective date of such Change of Control and provided further that the
Call Notice shall be delivered to the Investors at least fifteen (15) days prior
to the date determined by Parent (or its designee) for consummation of the Call
Option, during which fifteen (15) day period the Investors may discuss with the
Parent the advisability of consummating the Call Option; provided, however, that
after such fifteen (15) day period, Parent (or its designee) may consummate the
Call Option and purchase the Called Stock, in its sole discretion. In the event
of a Change of Control of Parent, Parent shall use its commercially reasonable
efforts to give Investors notification, including the name of the acquirer, of
such event immediately following the public announcement of such event,
regardless of whether Parent (or its designee) provides notice of exercise of
the Call Option at such time.
b. Purchase Price. The price to be paid by the Parent or its designee
for the Called Stock (the "Call Price") shall be the Fair Value (as defined
below) of the Called Stock on the date of delivery of the Call Notice to the
Investors. "Fair Value" shall be determined by good faith negotiation between
the Parent and the Investors. If such negotiation fails to determine the Fair
Value within thirty (30) days after delivery of the Call Notice, the Parent and
the Investors will select an appraiser to determine the Fair Value of the Called
Stock. If the parties cannot agree on an appraiser, each will select an
appraiser, who will then select a third appraiser and that third appraiser shall
determine the Fair Value of the Called Stock; provided, however, the Fair Value
of the Called Stock in this circumstance will be an amount at least equal to a
fourteen percent (14%) internal rate of return for the Investors and no greater
than a twenty-five percent (25%) internal rate of return for the Investors, as
measured against the initial issue price of the Called Stock.
c. Procedure. Within ten (10) days after the determination of the Call
Price, the Parent or its designee shall pay to the Investors in cash the Call
Price, at which time the Parent or its designee will become the record holder of
the Called Stock, and the Investors shall deliver the certificate(s) for the
Called Stock (if certificates were issued), properly endorsed for Transfer, to
the Parent or its designee.
8.2 PUT OPTION.
a. Exercise by Mitsubishi. During the time period commencing on the
effective date of a Change of Control of the Parent that has a value of at least
Two Hundred Fifty Million
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Dollars ($250,000,000 US) (measured by the fair market value of the actual,
non-contingent consideration paid to the Parent or its stockholders upon the
closing of such Change of Control) and represents a per-fully-diluted share
premium of at least twenty percent (20%) (measured by dividing the fair market
value of the actual, non-contingent consideration paid to the Parent or its
stockholders upon the closing of such Change of Control by the fully-diluted
number of shares of capital stock outstanding as of the closing of such Change
of Control and comparing the resulting quotient to the closing market price for
the Parent's common stock on the last trading date prior to the public
announcement of such Change of Control) ("Qualifying Change of Control") and
terminating at the end of the ninetieth (90th) day thereafter (the "Put Option
Termination Date"), Mitsubishi Corporation ("Mitsubishi") shall be entitled, at
its option, to the extent permitted under applicable law (including without
limitation the Japanese Corporation Law), to require the Company (or its
designee, which may be the Parent or the successor of Parent in the Qualifying
Change of Control) to purchase all (but not less than all) of shares of Stock
(the "Put Stock") owned by Mitsubishi (the "Put Option"). Mitsubishi may
exercise the Put Option by delivery of written notice (the "Put Notice") to the
Company at any time after the public announcement of a Qualifying Change of
Control of the Parent and before fifteen (15) days prior to the Put Option
Termination Date, provided that, the Put Option may only be consummated on or
after the effective date of such Qualifying Change of Control and provided
further that the Put Notice shall be delivered to the Company at least fifteen
(15) days prior to the date determined by Mitsubishi for consummation of the Put
Option, during which fifteen (15) day period the Company and/or the Parent may
discuss with Mitsubishi the advisability of consummating the Put Option;
provided, however, that after such fifteen (15) day period, Mitsubishi may
consummate the Put Option and sell the Put Stock, in its sole discretion.
b. Purchase Price. The price to be paid by the Company or its designee
for the Put Stock (the "Put Price") shall be an amount equal to one hundred ten
percent (110%) of the amount paid by Mitsubishi to the Company for the Put
Stock.
c. Procedure. The Put Price shall be paid in cash; provided, however,
if the consideration received by the Parent or its stockholders in the
Qualifying Change of Control consists in whole or in part of the registered
common stock of the other party to the Qualifying Change of Control, the Company
(or its designee) may, at its sole option, pay the Put Price using such stock in
the same proportion as such stock represented to the total consideration paid in
the Qualifying Change of Control and applying the valuation for such stock as
applied in connection with the consummation of the Qualifying Change of Control.
Upon payment of the Put Price, Mitsubishi shall deliver the certificate(s) for
the Put Stock (if certificates were issued), properly endorsed for Transfer, to
the Company or its designee.
8.3 TERMINATION UPON QUALIFIED IPO. The Call Option rights described in
Section 8.1 and the Put Option rights described in Section 8.2 shall
automatically terminate, without notice, upon a Qualified IPO.
13
SECTION 9
VOTING, BOARD OF DIRECTORS AND APPROVAL PROVISIONS
9.1 VOTING SHARES. So long as at least fifty percent (50%) of the Series A
Preferred Stock remains outstanding and the Investors continue to own at least
fifty percent (50%) of the shares of such Series A Preferred Stock (or shares of
common stock issued upon conversion of the Series A Preferred Stock) held by the
Investors as of the date of this Agreement, the Parent and the Investors (each a
"VOTING PARTY", and collectively, the "VOTING PARTIES") each agree to vote all
shares of Stock now or hereafter owned by them, whether beneficially or
otherwise, or as to which they have voting power (collectively, the "VOTING
SHARES") in accordance with the provisions of this Section 9.
9.2 ELECTION OF BOARD OF DIRECTORS.
(a) Voting. During the term of this Agreement, each Voting Party
agrees to vote all Voting Shares in such manner as may be necessary to elect
(and maintain in office) as members of the Company's Board of Directors the
following individuals:
(i) one (1) Series A Designee (as defined below) as the
representative of the holders of the Series A Preferred Stock (or shares of
common stock issued upon conversion of the Series A Preferred Stock) (the
"SERIES A DIRECTOR"); and
(ii) three (3) Common Designees (as defined below) as the
representatives of the holders of the Company's common stock (the "COMMON
DIRECTORS").
Each Voting Party shall take all actions necessary to vote all Voting
Shares in accordance with this Section 9.2(a), including without limitation
attending and voting at any meeting for the election of directors, or completion
of proxies or written consents.
(b) Designation of Directors. The designees to the Company's Board of
Directors described above (each a "DESIGNEE") shall be selected as follows:
(i) The Series A Director shall initially be Xxxxxxxxx
Xxxxxxxxxx. Thereafter, with respect to each election of the Series A Director,
the Designee for the Series A Director (the "SERIES A DESIGNEE") shall be
chosen, and may be removed, by Mitsubishi Corporation.
(ii) The Common Directors shall initially be Xxxx Xxxxxxxxxxx,
Xxxxxxxx Xxxxxx and Xxxxx Xxxxxx. Thereafter, with respect to each election of
the Common Directors, the Designees for the Common Director (the "COMMON
DESIGNEES") shall be chosen, and may be removed, by the Parent.
(c) Changes in Designees. From time to time during the term of this
Agreement, Voting Parties who may elect or remove a Designee pursuant to this
Agreement may, in their sole discretion:
14
(i) notify the Company in writing of an intention to remove from
the Company's Board of Directors any incumbent Designee who occupies a seat on
the Board of Directors for which such Voting Parties are entitled to designate
the Designee; or
(ii) notify the Company in writing of an intention to select a
new Designee for election to a seat on the Board of Directors for which such
Voting Parties are entitled to designate the Designee (whether to replace a
prior Designee or to fill a vacancy in such seat).
In the event of such an initiation of a removal or selection of a Designee
under this Section 9.2(c), the Company shall take such reasonable actions as are
necessary to facilitate such removals or elections, including, without
limitation, soliciting the votes of the appropriate shareholders, and the
appropriate Voting Parties shall vote their Voting Shares to cause: (a) the
removal from the Company's Board of Directors of the Designee or Designees so
designated for removal; and (b) the election to the Company's Board of Directors
of any new Designee or Designees so designated.
9.3 BOARD OF DIRECTORS VOTING REQUIREMENTS. So long as at least fifty
percent (50%) of the Series A Preferred Stock remains outstanding and the
Investors continue to own at least fifty percent (50%) of the shares of such
Series A Preferred Stock (or shares of common stock issued upon conversion of
the Series A Preferred Stock) held by the Investors as of the date of this
Agreement, the Company may not, without the unanimous consent of the Board of
Directors (of which no director's consent shall be withheld unreasonably, in bad
faith or contrary to the Company's best interests or such director's applicable
fiduciary duty), approve or authorize:
(a) the Company's annual budget (in its entirety) and business plan
including its mid-term strategy; provided, however, that each member of the
Board of Directors will vote in favor of a budget that substantially comports
with any of the Company's budgets, operations and practices in the ordinary
course of business from and during the Company's previous fiscal years;
(b) the Company's fiscal year-end financial statements; provided,
however, that each member of the Board of Directors will vote in favor of the
Company's financial statements if such statements were prepared in accordance
with past practices and generally accepted accounting principals under
applicable laws;
(c) a declaration or payment of a dividend on shares of the Company's
capital stock in a given fiscal year, if (i) the aggregate amount of dividends
to be distributed in such fiscal year exceeds the Company's net profits for such
fiscal year, or (ii) no dividend was declared or paid by the Company in the
previous three (3) fiscal years;
(d) a sale of any part of the Company's business or assets valued at a
sale price greater than ten percent (10%) of the fair market value of the total
assets of the Company prior to the consummation of such sale or
Y1,000,000,000;
(e) a purchase of a business or assets for a purchase price greater
than ten percent (10%) of the fair market value of the total assets of the
Company after the consummation of such purchase or Y1,000,000,000;
15
\
(f) salaries, bonuses or retirement bonuses for a member of the Board
of Directors in an amount greater than Y100,000,000 during any year;
(g) a term sheet, proposal or letter of intent or any other contract
or agreement (i) which will result in payment or receipt by the Company of an
amount greater than ten percent (10%) of the fair market value of the total
assets of the Company or an amount greater than the gross sales generated by the
Company during the preceding fiscal year, (ii) the term of which will exceed
three (3) years and that has an aggregate value of greater than ten percent
(10%) of the fair market value of the total assets of the Company, (iii)
regarding a license with respect to the Company's intellectual property that
requires payments in an aggregate amount greater than ten percent (10%) of the
fair market value of the total assets of the Company, or (iv) regarding the
payment or receipt by the Company of royalty payments that have an aggregate
value of greater than ten percent (10%) of the fair market value of the total
assets of the Company. The consent requirement applicable to this subsection (g)
shall be deemed to apply, in any event, to any material amendment after the date
of this Agreement of any of the following agreements: the Agreement between
Parent and the Company being entered into contemporaneously herewith, the
Development and Commercialization Agreement with BML, Inc., the Development
Agreement and the Distribution Agreement with Daiichi Pure Chemicals Co., Ltd.,
the Development and Commercialization Agreement with Shimadzu Corporation and
Toppan Printing Co., Ltd., and the License Agreement with RIKEN;
(h) any Transfer by Parent, which results in (i) Parent's shareholding
ratio in the Company being less than fifty percent (50%) of the voting stock of
Company and/or (ii) such transferee's shareholding ratio in the Company being
more than that of the second largest investor, Mitsubishi Corporation; and
(i) Amendment of the Memorandum of Association or Articles of
Association.
9.4 ISSUES TO BE RESOLVED. The following issues are subject to the simple
majority resolutions in the Board of Directors:
(a) a declaration or payment of a dividend on shares of the Company's
capital stock in a given fiscal year, except for the case set forth in Section
9.3 (c);
(b) a sale of any part of the Company's business or assets, except for
the case set forth in Section 9.3 (d) and except for sales in the ordinary
course of the Company's business;
(c) a purchase of a business or assets, except for the case set forth
in Section 9.3 (e) and except for purchases in the ordinary course of the
Company's business;
(d) salaries, bonuses or retirement bonuses for a member of the Board
of Directors, except for the case set forth in Section 9.3 (f);
(e) approval of any transaction that will result in a change of more
than ten percent (10%) in the composition of the Company's shareholders;
(f) Loans, guarantees, extension of payment, purchase or sales
contracts for over one (1) year, if cumulative amounts for each customer or
product exceed one hundred (100) million yen;
16
(g) Acquisition of stocks, if cumulative amounts for each customer
exceed thirty (30) million yen;
(h) Acquisition of fixed assets, if such acquisition is over one
hundred (100) million yen per transaction;
(i) Investments, loans and guarantees to any new Affiliate, if the
cumulative amount invested in such Affiliate exceeds thirty (30) million yen;
(j) Settling a lawsuit or any committing funds in connection with a
similar matter, if such action results in the payment by the Company of over
thirty (30) million yen per transaction;
(k) Taxable write-down, if cumulative amounts for each customer exceed
thirty (30) million yen; and
(l) Acceptance of director's doing the same kind of business as the
company or representing the Shareholders in the contract.
9.5 PARENT APPROVAL RIGHTS. The Company's stock option plan and stock
option grants issued thereunder or otherwise must be approved and authorized in
writing by the Parent.
SECTION 10
TERMINATION AND WAIVER
10.1 TERMINATION. Each of the Investors' information and inspection rights
pursuant to Section 2 hereof, the Shareholders' Preemptive Right pursuant to
Section 3 hereof, the Eligible Investors' Right of First Refusal and the
Investors' Right of Co-Sale pursuant to Sections 4, 5 and 6 hereof,
respectively, and the voting provisions pursuant to Section 9 hereof, and the
board voting rights pursuant to Sections 9.3 and 9.4 hereof will terminate upon
the earliest to occur of (i) the effectiveness of a registration statement
pursuant to a Qualified IPO, (ii) the date on which this Agreement is terminated
by a writing executed by the Company, the Parent and the Investors, (iii) the
dissolution of the Company, (iv) exercise of the Call Option or, in the case of
Mitsubishi, the Put Option, or (v) termination by the Company or its successor
in the event of a Change of Control of the Company that directly or indirectly
results in the Investors no longer holding, collectively, at least twenty-five
percent (25%) of the then issued and outstanding shares of the Series A
Preferred Stock (or shares of common stock issued upon conversion of the Series
A Preferred Stock), provided, however, that in the event of such a Change of
Control, TWT shall notify the Investors of the name of the acquirer and a
summary of the expected or actual terms and conditions of such acquisition at
any time within the period spanning from ninety (90) days prior to, until ninety
(90) days after, the effective date such the Change of Control and discuss the
advisability of terminating this Agreement with the Investors for fifteen (15)
days from the date of such notice to the Investors, after which time the Company
or its successor may, upon written notice to the Investors, immediately effect
the above described termination. The Company's Right of First Refusal will
terminate upon the earliest to occur of (i) a written election of the Company
pursuant to an action by the Board of Directors or (ii) the occurrence of any of
(i), (iii) or (iv) in the preceding sentence.
17
10.2 WAIVER. Any waiver by a party of its rights hereunder will be
effective and binding on all parties hereto only if evidenced by a written
instrument executed by such party or its authorized representative. No waivers
of, or exceptions to, any term, condition or provision of this Agreement, in any
one or more instances, shall be deemed to be, or construed as, a further
continuing waiver of any such term, condition or provision.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, sent by confirmed facsimile or otherwise delivered by
hand or by messenger addressed:
(a) if to an Eligible Investor, at the Eligible Investor's address or
facsimile number as shown in the Company's records, as may be updated in
accordance with the provisions hereof; or
(b) if to the Company, at its address or facsimile number set forth on
the cover page of this Agreement and addressed to the attention of the
President, or at such other address or facsimile number as the Company shall
have furnished to the Eligible Investors.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or
seventy-two (72) hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the mail, addressed and mailed as
aforesaid or, if sent by confirmed facsimile, upon confirmation of facsimile
transfer.
11.2 INAPPLICABILITY OF CERTAIN RIGHTS. The Eligible Investors' Right of
First Refusal and Right of Co-Sale pursuant to Sections 4, 5 and 6 hereof,
respectively, shall not apply to any Change of Control of the Parent, even if
the Parent's Stock is transferred as part of such Change of Control.
11.3 SUCCESSORS AND ASSIGNS. This Agreement, and any and all rights, duties
and obligations hereunder, shall not be assigned, transferred, delegated or
sublicensed by any Shareholder without the prior written consent of the Company.
Any attempt by a Shareholder without such permission to assign, transfer,
delegate or sublicense any rights, duties or obligations that arise under this
Agreement shall be void. Subject to the foregoing and except as otherwise
provided herein, the provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties. Any transferee of a Seller who is required to
become a party hereto will be considered a "Seller" for purposes of this
Agreement.
11.4 SEVERABILITY. Unless otherwise expressly provided herein, the rights
of the Shareholders hereunder are several rights, not rights jointly held with
any other Shareholder. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
provision, and the parties agree to negotiate, in good faith, a legal and
enforceable substitute provision which most nearly effects the parties' intent
in entering into this Agreement.
18
11.5 AMENDMENT. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument referencing this Agreement and signed by the Company,
the Parent and the Investors.
11.6 CONTINUITY OF OTHER RESTRICTIONS. Any Offered Shares not purchased by
the Company or any Eligible Investor under their Rights of First Refusal
hereunder will continue to be subject to all other restrictions imposed upon
such shares of Stock by law, including any restrictions imposed under the
Articles or by agreement.
11.7 GOVERNING LAW. This Agreement shall be governed in all respects by the
internal laws of Japan as applied to agreements entered into among Japanese
residents to be performed entirely within Japan, without regard to principles of
conflicts of law.
11.8 OBLIGATION OF COMPANY: BINDING NATURE OF EXERCISE. The Company agrees
to use its best efforts to enforce the terms of this Agreement except where it
elects to effect a waiver, to inform the Shareholders of any breach hereof (to
the extent the Company has knowledge thereof) and to assist the Shareholders in
the exercise of its rights and the performance of its obligations hereunder. Any
exercise of the Right of First Refusal or Right of Co-Sale will be binding upon
the party so exercising, and may not be withdrawn without the written consent of
the Company or the Seller as to whom it is given, as the case may be, except
that such exercise may be withdrawn unilaterally by the exercising party if
there is any legal prohibition as to a party's consummation of its purchase or
sale hereunder.
11.9 SPECIFIC PERFORMANCE. The rights of the parties under this Agreement
are unique and, accordingly, the parties shall, in addition to such other
remedies as may be available to any of them at law or in equity, have the right
to enforce their rights hereunder by actions for specific performance to the
extent permitted by law.
11.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, will be deemed an
original, and all such counterparts together will constitute one and the same
instrument.
11.11 FURTHER ASSURANCES. Each party hereby agrees to execute and deliver
all such further instruments and documents and take all such other actions as
necessary or required under each of the Commercial Code of Japan and the
Corporation Law of Japan, or as reasonably requested by the other party, in
either event, in order to carry out the intent and purposes of this Agreement.
11.12 CONFLICT. In the event of any conflict between the terms of this
Agreement and the Articles, the terms of the Articles will control. In the event
of any conflict between the Company's books and records and this Agreement or
any notice delivered hereunder, the Company's books and records will control
absent fraud or error.
11.13 ATTORNEYS' FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, 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
19
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
11.14 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. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto.
11.15 ENTIRE AGREEMENT. This Agreement, the other Agreements and the
exhibits and schedules hereto and thereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner with regard to the subjects hereof or thereof by any warranties,
representations or covenants except as specifically set forth herein or therein.
11.16 DELAYS OR OMISSIONS. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any party to this
Agreement upon any breach or default of any other party under this Agreement
shall impair any such right, power or remedy of such non-defaulting party, nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring, nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party to this Agreement, shall be cumulative and not
alternative.
11.17 FACSIMILE EXECUTION AND DELIVERY. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
11.18 JURISDICTION; VENUE. All disputes or claims arising under or relating
to this Agreement shall be settled by the parties amicably through good faith
discussions upon the written request of any party. In the event that any such
dispute or claim arising under or relating to this Agreement cannot be resolved
thereby within a period of sixty (60) days after such notice has been given,
such dispute or claim (other than a dispute under Section 8.2) shall be subject
to the exclusive jurisdiction of the Tokyo District Court.
11.19 FURTHER ASSURANCES. Each party hereto agrees to execute and deliver,
by the proper exercise of its corporate, limited liability company, partnership
or other powers, all such other and additional instruments and documents and do
all such other acts and things as may be necessary to more fully effectuate this
Agreement.
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11.20 TERMINATION OF ORIGINAL XXX. The Company, the Parent, and those
Investors that were parties to the Original XXX hereby agree that the Original
XXX shall be deemed terminated and replaced by this Agreement upon the execution
in full of this Agreement.
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the
day and year first above written.
COMPANY:
THIRD WAVE JAPAN, INC.
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: President
PARENT:
THIRD WAVE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President & CEO
INVESTORS:
MITSUBISHI CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: General Manager, Life Sciences
Business Unit
CSK INSTITUTE FOR SUSTAINABILITY, LTD.
By: /s/ Masahiro Aozono
------------------------------------
Name: Masahiro Aozono
Title: President & CEO
BML, INC.
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: President
DAIICHI PURE CHEMICALS CO., LTD.
By: /s/ Shin-xxxxxx Xxxxxx
------------------------------------
Name: Shin-xxxxxx Xxxxxx
Title: President & CEO
TOPPAN PRINTING CO., LTD.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President & CEO
SHIMADZU CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Corporate Officer
[Signature Page to Investor Rights Agreement]
EXHIBIT A
INVESTORS
Mitsubishi Corporation
CSK Institute for Sustainability, Ltd.
BML, Inc.
Daiichi Pure Chemicals Co., Ltd.
Toppan Printing Co., Ltd.
Shimadzu Corporation
