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EXHIBIT 10.5
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT is made as of the
9th day of February 1995, by and among Micro Therapeutics, Inc., a California
corporation (the "Company"), persons holding at least a majority of the
Registrable Securities under the Investors' Rights Agreement (the "Existing
Rights Agreement") dated as of December 21, 1993 (as "Registrable Securities"
is defined under the Existing Rights Agreement), the Purchasers under the
Series B Preferred Stock Purchase Agreement (the "Series B Agreement") of even
date herewith and the holders of Common Stock listed on Schedule A who are
parties hereto (the "Common Holders"). Holders of Registrable Securities under
the Existing Rights Agreement and the Series B Purchasers are referred to
collectively herein as the "Investors."
RECITALS
WHEREAS, the Company wishes to raise additional capital by issuing
Series B Preferred Stock with the rights, privileges and preferences set forth
in the Amended and Restated Articles of Incorporation attached to the Series B
Agreement;
WHEREAS, pursuant to Section 3.7 of the Existing Rights Agreement, the
Existing Rights Agreement may be amended by written consent of the holders of a
majority in interest of the then outstanding Registrable Securities and the
Company; and
WHEREAS, the Company wishes to amend the Existing Rights Agreement in
order to give the Series B Purchasers registration rights that are parallel to
and pooled with those of the currently outstanding Registrable Securities,
NOW, THEREFORE, the parties hereby agree that the Existing Rights
Agreement is amended and restated in its entirety as follows:
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "Act" means the Securities Act of
1933, as amended.
(b) The term "Form S-3" means such form under the
Act as in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC that permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(c) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 hereof.
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(d) The term "1934 Act" means the Securities
Exchange Act of 1934, as amended.
(e) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(f) The term "Registrable Securities" means (i)
the Common Stock issuable or issued upon conversion of the Series A-1 Preferred
Stock, Series A-2 Preferred Stock and Series B Preferred Stock, and (ii) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security that is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of
the shares referenced in (i) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his, her or
its rights under this Section 1 are not assigned.
(g) The term "Registrable Common Stock" means (i)
the shares of Common Stock held by the Common Holders as of the date hereof,
and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) above.
(h) The number of shares of "Registrable
Securities then outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which are,
Registrable Securities.
(i) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 Request for Registration.
(a) If the Company shall receive at any time
after (i) January 1, 1997, and before the effective date of the first
registration statement for a public offering of securities of the Company
(other than a registration statement relating either to the sale of securities
to employees of the Company pursuant to a stock option, stock purchase or
similar plan or a SEC Rule 145 transaction), a written request from the Holders
of a majority of the Registrable Securities then outstanding that the Company
file a registration statement under the Act covering the registration of at
least a majority of the Registrable Securities then outstanding, or (ii) the
effective date of the first registration statement for a public offering of
securities of the Company (other than a registration statement relating to
either the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or a SEC Rule 145 transaction), a
written request from Holders of Registrable Securities covering the
registration of Registrable Securities with an anticipated gross offering price
of at least $10,000,000, then the Company shall:
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(i) within ten (10) days of the receipt
thereof, give written notice of such request to all Holders; and
(ii) effect as soon as practicable, and
in any event within ninety (90) days of the receipt of such request, the
registration under the Act of all Registrable Securities that the Holders
request to be registered within twenty (20) days of the mailing of such notice
by the Company in accordance with Section 3.5., subject to the limitations of
subsection 1.2(b).
(b) If the Holders initiating the registration
request hereunder ("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 subsection
1.2(a) and the Company shall include such information in the written notice
referred to in subsection 1.2(a). The underwriter will be selected by a
majority in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any Holder to include
his, her or its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in subsection 1.4(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder; provided, however, that the number of
shares of Registrable Securities to be included in such underwriting shall not
be reduced unless all other securities are first entirely excluded from the
underwriting. For purposes of the preceding sentence concerning apportionment,
for any Initiating Holder that is a holder of Registrable Securities that is a
partnership or corporation, the partners, retired partners and shareholders of
such Initiating Holder (and, in the case of a partnership, any affiliated
partnerships), or the estates and family members of any such partners and
retired partners and any trusts for the benefit of any of the foregoing persons
shall be deemed to be a single "Initiating Holder," and any proportionate
reduction with respect to such "Initiating Holder" shall be based upon the
aggregate amount of shares carrying registration fights owned by all entities
and individuals included in such "Initiating Holder," as defined in this
sentence.
(c) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its 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 taking action with respect to such filing for a period of not
more than 60 days after receipt of the request of the Initiating
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Holders; provided, however, that the Company may not utilize this right more
than twice in any twelve-month period.
(d) In addition, the Company shall not be
obligated to effect, or to take any action to effect, any registration pursuant
to this Section 1.2:
(i) After the Company has effected one
registration pursuant to this Section 1.2 that has been declared or ordered
effective, provided that such registration was declared or ordered effective
subsequent to the closing of the first public offering of the Company's Common
Stock (other than an offering relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a SEC Rule 145 transaction);
(ii) During the period starting with the
date seventy-five (75) days prior to the Company's good faith estimate of the
date of filing of, and ending on a date one hundred eighty (180) days after the
effective date of, a registration subject to Section 1. 3 hereof, provided that
the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or
(iii) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 1.11 below.
1.3 Company Registration.
(a) If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders and, in any
case, subject to Section 1.3(b) hereof, including a registration in connection
with the initial public offering of the Company's Common Stock) any of its
capital stock under the Act in connection with the public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, a registration on
any form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which
are also being registered), the Company shall, at such time, promptly give each
Holder and Common Holder written notice of such registration. Upon the written
request of each Holder and Common Holder given within twenty (20) days after
mailing of such notice by the Company in accordance with Section 3.5, the
Company shall, subject to the provisions of Section 1.3(b), cause to be
registered under the Act all of the Registrable Securities and Registrable
Common Stock that each such Holder and Common Holder has requested to be
registered.
(b) In connection with any offering under this
Section 1.3 involving an underwriting of shares of the Company's capital stock,
the Company shall not be required to include any of the Holders' or Common
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
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by it (or by other persons entitled to select the underwriters), and then only
in such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities and Registrable Common Stock,
requested by shareholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities and Registrable Common Stock, which
the underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro rata
among the selling shareholders according to the total amount of securities
entitled to be included therein owned by each selling shareholder or in such
other proportions as shall mutually be agreed to by such selling shareholders;
provided, however, that no Registrable Securities shall be excluded from such
offering until all Registrable Common Stock has first been excluded) but in no
event shall the amount of securities of the selling Holders included in the
offering be reduced below twenty-five percent (25%) of the total amount of
securities included in such offering, unless such offering is the initial public
offering of the Company's securities in which case the selling shareholders may
be excluded entirely if the underwriters make the determination described above
and no other shareholders securities are included. Any reduction in Registrable
Common Stock pursuant to the preceding sentence shall be made among the Common
Holders pro rata in proportion to the number of shares requested by each such
Common Holder to be included in such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling shareholder that is a
holder of Registrable Securities or Registrable Common Stock that is a
partnership or corporation, the partners, retired partners and shareholders of
such holder (and, in the case of a partnership, any affiliated partnerships), or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling shareholder," and any pro-rata reduction with respect to such
"selling shareholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholder," as defined in this sentence.
1.4 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable Securities or
Registrable Common Stock, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to
one hundred twenty (120) days or until the distribution contemplated in the
Registration Statement has been completed, provided, however, that (i) such
120-day period shall be extended for a period of time equal to the period the
Holder refrains from selling any securities included in such registration at
the request of an underwriter of Common Stock (or other securities) of the
Company; and (ii) in the case of any registration of Registrable Securities on
Form S-3 which are intended to be offered on a continuous or delayed basis,
such 120-day period shall be extended, if necessary, to keep the registration
statement effective until all such Registrable Securities are sold, provided
that Rule 415, or any successor rule under the Act, permits an offering on a
continuous or delayed
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basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (I) includes any prospectus required by Section
10(a)(3) of the Act or (II) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (I)
and (II) above to be contained in periodic reports filed pursuant to Section 13
or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders and the Common
Holders, as the case may be, such numbers of copies of a prospectus, including
a preliminary prospectus, in conformity with the requirements of the Act, and
such other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities and Registrable Common Stock owned by
them.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders or the Common Holders, as the case may be; provided
that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder and Common Holder participating in such underwriting
shall also enter into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
and each Common Holder of Registrable Common Stock covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities and
Registrable Common Stock registered pursuant hereto to be listed on each
securities exchange on which similar securities issued by the Company are then
listed.
(h) Provide a transfer agent and registrar for
all Registrable Securities and Registrable Common Stock registered pursuant
hereto and a CUSIP number for all such
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Registrable Securities and Registrable Common Stock, in each case not later
than the effective date of such registration.
1.5 Furnish Information.
(a) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities or Registrable Common Stock of any
selling Holder or Common Holder that such Holder or Common Holder shall furnish
to the Company such information regarding himself, herself or itself, the
Registrable Securities or Registrable Common Stock held by him, her or it, and
the intended method of disposition of such securities as shall be required to
effect the registration of such Holder's or Common Holder's Registrable
Securities or Registrable Common Stock, as the case may be.
(b) The Company shall have no obligation with
respect to any registration requested pursuant to Section 1.2 or Section 1.11
if, due to the operation of subsection 1.5(a), the number of shares or the
anticipated aggregate offering price of the Registrable Securities to be
included in the registration does not equal or exceed the number of shares or
the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection 1.11(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other
than underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Holders shall
be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 1.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless (i) the registration is withdrawn following any deferral of the
registration by the Company pursuant to Section 1.2(c); (ii) the registration
is withdrawn due to a material adverse change in the Company's business or
financial condition; or (iii) the Holders of a majority of the Registrable
Securities agree to forfeit their right to one demand registration pursuant to
Section 1.2.
1.7 Expenses of Company Registration. The Company shall
bear and pay all expenses incurred in connection with any registration, filing
or qualification of Registrable Securities and Registrable Common Stock with
respect to the registrations pursuant to Section 1.3 for each Holder and Common
Holder (which right may be assigned as provided in Section 1.12), including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees relating or apportionable thereto and the fees and
disbursements of one counsel for the selling Holders and Common Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities and Registrable Common Stock.
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1.8 Delay of Registration. No Holder or Common Holder
shall have any right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable
Securities or Registrable Common Stock are included in a registration statement
under this Section 1:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder and Common Holder, any underwriter
(as defined in the Act) for such Holder or Common Holder and each person, if
any, who controls such Holder, Common Holder or underwriter within the meaning
of the Act or the 1934 Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the 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"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged violation
by the Company of the Act, the 1934 Act, any state securities law or any rule
or regulation promulgated under the Act, the 1934 Act or any state securities
law; and the Company will pay to each such Holder, Common Holder, underwriter
or controlling person any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.9(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, Common Holder, underwriter or controlling
person.
(b) To the extent permitted by law, each selling
Holder and Common Holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the Act,
any underwriter, any other Holder or Common Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder or Common Holder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may become
subject under the Act, the 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 or Common Holder
expressly for use in connection with such registration; and each such Holder
and Common Holder will pay any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.9(b) in
connection with
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investigating or defending any such loss, claim, damage, liability or action;
provided, however that the indemnity agreement contained in this subsection
1.9(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder or Common Holder, which consent shall not be unreasonably
withheld; and provided, that, in no event shall any indemnity under this
subsection 1.9(b) exceed the gross proceeds from the offering received by such
Holder or Common Holder.
(c) Promptly after receipt by an indemnified
party under this Section 1.9 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
1.9, 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 (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate 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 prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 1.9, 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 1.9.
(d) If the indemnification provided for in this
Section 1.9 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage or expense 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 statements or omissions that resulted
in such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined 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.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
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(f) The obligations of the Company, Holders and
Common Holders under this Section 1.9 shall survive the completion of any
offering of Registrable Securities or Registrable Common Stock in a
registration statement under this Section 1, and otherwise.
1.10 Reports Under Securities Exchange Act of 1934. With
a view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available,
as those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the first registration statement filed by
the Company for the offering of its securities to the general public is
declared effective;
(c) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the 1934
Act; and
(d) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of SEC Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.11 Form S-3 Registration. In case the Company shall
receive a written request or requests from Holders of Registrable Securities
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:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other
Holders; and
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any
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other Holder or Holders joining in such request as are specified in a written
request given within 15 days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance pursuant to this section
1.11: (1) if Form S-3 is not available for such offering by the Holders; (2) if
the Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public (net of any underwriters' discounts or commissions) of less than
$1,000,000; (3) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its 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
sixty (60) days after receipt of the request of the Holder or Holders under
this Section 1.11; provided, however, that the Company shall not utilize this
right more than twice in any twelve (12) month period; (4) if the Company has,
within the twelve (12) month period preceding the date of such request, already
effected two (2) registrations on Form S-3 for the Holders pursuant to this
Section 1.11; or (5) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall
file a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders. All expenses incurred in connection
with a registration requested pursuant to Section 1.11, including (without
limitation) all registration, filing, qualification, printer's and accounting
fees and the reasonable fees and disbursements of counsel for the selling
Holder or Holders and counsel for the Company, but excluding any underwriters'
discounts or commissions associated with Registrable Securities, shall be paid
by the Company. Registrations effected pursuant to this Section 1.11 shall not
be counted as demands for registration or registrations effected pursuant to
Sections 1.2 or 1.3, respectively.
1.12 Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant to this Section 1
may be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities who, after such assignment or
transfer, holds the lesser of (i) 200,000 shares of Registrable Securities
(subject to appropriate adjustment for stock splits, stock dividends,
combinations and other recapitalizations or (ii) all of the Registrable
Securities previously owned by the transferring Holder, provided: (a) the
Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned,
(b) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement, including without limitation the
provisions of Section 1.14 below; and (c) such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act. For the
purposes of determining the number of shares of Registrable Securities held by
a transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including
spouses and ancestors, lineal descendants and siblings of such partners or
spouses who acquire Registrable
-11-
12
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership and its affiliated partnerships; provided that all
assignees and transferees who would not qualify individually for assignment of
registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under this
Section 1. The rights of the Common Holders to include the Registrable Common
Stock in a registration pursuant to Section 1.3 hereof shall not be assigned by
any Common Holder to any assignee or transferee other than to an assignee or
transferee who acquires all (but not less than all) of the Registrable Common
Stock held by such Common Holder on the date hereof
1.13 Limitations on Subsequent Registration Rights. From
and after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company that would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of his, her or its securities will not reduce the
amount of the Registrable Securities of the Holders that is included, (b) to
include such securities in any registration filed under Section 1.3 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his, her or its securities will not reduce the amount of the
Registrable Securities and Registrable Common Stock of the Holders and Common
Holders that is included, or (c) to make a demand registration that could
result in such registration statement being declared effective prior to the
earlier of either of the dates set forth in subsection 1.2(a) or within one
hundred eighty (180) days of the effective date of any registration effected
pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. Each Investor and each
Common Holder hereby agrees that, during the period of duration specified by
the Company and an underwriter of Common Stock or other securities of the
Company, following the effective date of a registration statement of the
Company filed under the Act, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any securities of the Company held by it at
any time during such period except Common Stock included in such registration;
provided, however, that:
(a) all officers and directors of the Company and
all other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements;
(b) the Company uses reasonable efforts to obtain
from persons who hold in excess of one percent (1%) of the Company's
outstanding capital stock, a lock-up agreement similar to that set forth in
this Section 1.14; and
(c) such market stand-off time period shall not
exceed one hundred eighty (180) days.
-12-
13
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities
and Registrable Common Stock (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in
this Section 1.14 shall not apply to a registration relating solely to
employee benefit plans on Form S-1 or Form S-8 or similar forms that may be
promulgated in the future, or a registration relating solely to an SEC Rule 145
transaction on Form S-4 or similar forms that may be promulgated in the future.
1.15 Limitations on Disposition. Each Common Holder
agrees not to make any disposition of all or any portion of the Registrable
Common Stock unless and until the transferee has agreed in writing for the
benefit of the Company to be bound by Section 1.14 hereof, provided and to the
extent such section is then applicable.
1.16 Termination of Registration Rights. The right of any
Holder or Common Holder to request registration or inclusion in any registration
pursuant to Section 1.3 shall terminate on the closing of the first
Company-initiated registered public offering of Common Stock of the Company if
all shares of Registrable Securities and Registrable Common Stock beneficially
owned or subject to Rule 144 aggregation by such Holder or Common Holder may
immediately be sold under Rule 144 (without regard to Rule 144(k)) during any
90-day period, or on such date after the closing of the first Company-initiated
registered public offering of Common Stock of the Company as all shares of
Registrable Securities and Registrable Common Stock beneficially owned or
subject to Rule 144 aggregation by such Holder or Common Holder may immediately
be sold under Rule 144 (without regard to Rule 144(k)) during any 90-day period;
provided however, that the provisions of this Section 1.16 shall not apply to
any Holder or Common Holder who owns more than two percent (2%) of the Company's
outstanding stock until such time as such Holder or Common Holder owns less than
two percent (2%) of the outstanding stock of the Company.
2. Covenants of the Company. The Company covenants and agrees as
follows:
2.1 Delivery of Financial Statements. The Company shall
deliver to each Investor, so long as such Investor holds at least 200,000
shares of Registrable Securities (as adjusted for stock splits, recombinations
or reclassifications):
(a) as soon as practicable, but in any event
within one hundred twenty (120) days after the end of each fiscal year of the
Company, an income statement for such fiscal year, a balance sheet of the
Company and statement of shareholder's equity as of the end of such year, and a
statement of cash flows for such year, such year-end financial reports to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles ("GAAP"), and audited and certified by independent public
accountants of nationally recognized standing selected by the Company;
(b) within thirty (30) days of the end of each
month, an unaudited income statement and a statement of cash flows and balance
sheet for and as of the end of such
-13-
14
month (including year to date totals for such statements), in reasonable
detail, comparing results to the annual plan and to the prior year comparable
period;
(c) as soon as practicable, but by the end of
each fiscal year, a budget and business plan for the next fiscal year, prepared
on a monthly basis, including balance sheets, income statements and statements
of cash flows for such months and, as soon as prepared, any other budgets or
revised budgets prepared by the Company;
(d) with respect to the financial statements
called for in subsection (b) of this Section 2.1, an instrument executed by
the Chief Financial Officer or President of the Company and certifying that
such financials were prepared in accordance with GAAP consistently applied with
prior practice for earlier periods (with the exception of footnotes that may be
required by GAAP) and fairly present the financial condition of the Company and
its results of operation for the period specified, subject to year-end audit
adjustment;
(e) such other information relating to the
financial condition, business, prospects or corporate affairs of the Company as
the Investor or any assignee of the Investor may from time to time reasonably
request; provided, however, that the Company shall not be obligated under this
subsection (e) or any other subsection of Section 2.1 to provide information
which it deems in good faith to be a trade secret or similar confidential
information unless the Investor agrees in writing to hold such information in
confidence.
2.2 Inspection. The Company shall permit each Investor,
at such Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, all at such reasonable times as may be
requested by the Investor, provided, however, that the Company shall not be
obligated pursuant to this Section 2.2 to provide access to any information
which it reasonably considers to be a trade secret or similar confidential
information unless the Investor agrees in writing to hold such information in
confidence.
2.3 Assignment of Information and Inspection Rights.
Notwithstanding anything to the contrary in Sections 2.1 or 2.2, the right to
receive financial information granted in Section 2.1 and the inspection rights
granted in Section 2.2 shall not be assigned to a competitor of the Company.
Nothing in this Section 2.3 shall be construed to restrict the right of any
Holder to sell shares of Registrable Securities to any purchaser, irrespective
of whether such purchaser is a competitor of the Company.
2.4 Transactions with Affiliates. The Company shall not,
without the approval of a disinterested majority of the Company's Board of
Directors, engage in any loans, leases, contracts or other transactions with
any director, officer, key employee or greater than ten percent (10%)
shareholder of the Company, or any member of any such person's immediate
family, including the parents, spouse, children and other relatives of any such
person, on terms less favorable than the Company would obtain in a transaction
with an unrelated party, as determined in good faith by the Board of Directors.
-14-
15
2.5 Proprietary Information and Inventions Agreements and
Market Stand-Off. The Company will cause each person now or hereafter employed
by it or any subsidiary with access to confidential information to enter into a
proprietary information and inventions agreement substantially in the form
approved by the Board of Directors. The Company will use its best efforts to
cause all holders of its Common Stock who are not parties hereto to be bound by
a market stand-off provision in substantially the form set forth in Section 1.14
hereof.
2.6 Insurance.
(a) Except as otherwise decided in accordance
with policies adopted by the Company's Board of Directors, the Company will use
its best efforts to maintain in full force and effect at all times from
financially sound and reputable insurers, (i) insurance on its assets and those
of its subsidiaries that are of an insurable character against loss or damage
by fire, explosion and other risks customarily insured against by companies in
the Company's line of business, and (ii) insurance against other hazards and
risks and liability to persons and property to the extent and in the manner
customary for companies in similar businesses similarly situated.
(b) The Company covenants that so long as a
representative of Menlo Ventures VI, L.P., Xxxxxxxx VII or Xxxxxxxx Associates
II serves on the Company's Board of Directors, it will use its best efforts to
maintain directors' and officers' liability insurance in the minimum amount of
$1,000,000, provided that such insurance is available at commercially
reasonable rates.
2.7 Qualified Small Business Stock. The Company
covenants that so long as the Series A-1 Preferred Stock, Series A-2 Preferred
Stock or Series B Preferred Stock, or the Common Stock into which it is
converted, is held by an Investor (or a transferee in whose hands the Series A-1
Preferred Stock, Series A-2 Preferred Stock or Series B Preferred Stock, or
the Common Stock into which it is converted, is eligible to qualify as
Qualified Small Business Stock as defined in Section 1202(c) of the Internal
Revenue Code of 1986, as amended), it will use its reasonable efforts to cause
the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B
Preferred Stock, or the Common Stock into which it is converted, to qualify as
Qualified Business Stock; provided, however, that "reasonable efforts" as used
in this Section 2.7 shall not be construed to require the Company to operate
its business in a manner that would adversely affect the Company's business as
it is contemplated in the Business Plan.
2.8 Indemnification. The Company covenants that so long
as a representative of Xxxxxxxx VII, Xxxxxxxx Associates II or Menlo Ventures
VI, L.P. serves on the Company's Board of Directors its Restated Articles will
provide for the indemnification of the Company's officers and directors to the
fullest extent permitted by law.
2.9 Termination of Covenants. The covenants set forth in
this Section 2 shall terminate as to Investors and be of no further force or
effect (i) when the sale of securities pursuant to a registration statement
filed by the Company under the Act in connection with the firm commitment
underwritten offering of its securities to the general public is consummated or
when the Company is subject to the requirements of Sections 12(g) or 15(d) of
the 1934 Act, whichever event shall first occur or (ii) as to any Investor, or
transferee or assignee of such Investor, who
-15-
16
holds less than 200,000 shares of Series A-1 Preferred Stock, Series A-2
Preferred Stock or Series B Preferred Stock (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations).
The covenants of the Company set forth in this Section 2 are expressly for the
benefit of the Investors and their permitted successors and assigns and are not
intended to confer on any Common Holder or their successors or assigns any
rights or remedies.
2.10 Right of First Offer. Subject to the terms and
conditions specified in this Section 2.10, the Company hereby grants to each
Major Investor (as hereinafter defined) a right of first offer with respect to
future sales by the Company of its Shares (as hereinafter defined). For
purposes of this Section 2.10, a Major Investor shall mean any Investor who
holds 200,000 shares of Registrable Securities. For purposes of this Section
2.10, Investor includes any general partners and affiliates of an Investor.
An Investor shall be entitled to apportion the right of first offer hereby
granted it among itself and its partners and affiliates in such proportions as
it deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by
nationally recognized overnight courier ("Notice") to the Major Investors
stating (i) its bona fide intention to offer such Shares, (ii) the number of
such Shares to be offered, and (iii) the price and terms, if any, upon which it
proposes to offer such Shares.
(b) Within twenty (20) calendar days after giving
of the Notice, the Major Investor may elect to purchase or obtain, at the price
and on the terms specified in the Notice, up to that portion of such Shares
which equals the proportion that the number of shares of Common Stock issued
and held, or issuable upon conversion of the Series A-1 Preferred Stock,
Series A-2 Preferred Stock and Series B Preferred Stock then held by such Major
Investor bears to the total number of shares of Common Stock of the Company
then outstanding (assuming full conversion and exercise of all outstanding
convertible and exercisable securities, options or warrants) issued and held,
or issuable upon conversion of the Series A-1 Preferred Stock, Series A-2
Preferred Stock and Series B Preferred Stock then held by all the Major
Investors. The Company shall promptly, in writing, inform each Major Investor
that purchases all the shares available to it ("Fully-Exercising Investor") of
any other Major investor's failure to do likewise. During the ten-day period
commencing after such information is given, each Fully-Exercising Investor
shall be entitled to obtain that portion of the Shares for which Major
Investors were entitled to subscribe but which were not subscribed for by the
Major Investors which is equal to the proportion that the number of shares of
Common Stock issued and held, or issuable upon conversion of Series A-1
Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then
held by such Fully-Exercising Investor bears to the total number of shares of
Common Stock issued and held, or issuable upon conversion of the Series A-1
Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock then
held by all Fully-Exercising Investors who wish to purchase some of the
unsubscribed shares.
-16-
17
(c) If all Shares referred to in the Notice which
Investors are entitled to obtain pursuant to subsection 2.10(b) are not
elected to be obtained as provided in subsection 2.10(b) hereof, the Company
may, during the 60-day period following the expiration of the period provided
in subsection 2.10(b) hereof, offer the remaining unsubscribed portion of such
Shares to any person or persons at a price not less than, and upon terms no
more favorable to the offeree than those specified in the Notice. If the
Company does not enter into an agreement for the sale of the Shares within such
period, or if such agreement is not consummated within sixty (60) days of the
execution thereof, the right provided hereunder shall be deemed to be revived
and such Shares shall not be offered unless first reoffered to the Major
Investors in accordance herewith.
(d) The right of first offer in this Section 2.10
shall not be applicable (i) to the issuance or sale of 1,000,000 shares of
Common Stock (or options therefor) to employees for the primary purpose of
soliciting or retaining their employment, (ii) to or after consummation of a
bona fide, firmly underwritten public offering of shares of Common Stock,
registered under the Act pursuant to a registration statement on Form S-1,
(iii) to the issuance of securities pursuant to the conversion or exercise of
convertible or exercisable securities, (iv) to the issuance of securities in
connection with a bona fide business acquisition of or by the Company, whether
by merger, consolidation, sale of assets, sale or exchange of stock or
otherwise, or (v) to the issuance of stock, warrants or other securities or
rights to persons or entities with which the Company has business relationships
provided such issuances are for other than primarily equity financing purposes.
(e) The right of first offer set forth in this
Section 2.10 may not be assigned or transferred, except that (i) such right
is assignable by each Holder to any wholly owned subsidiary or parent of, or to
any corporation or entity that is, within the meaning of the Act, controlling,
controlled by or under common control with, any such Holder, and (ii) such
right is assignable between and among any of the Holders.
2.11 Right of Repurchase. The Company covenants that to
the extent it has the right to repurchase shares of its Common Stock held by
employees, consultants and directors or former employees, consultants and
directors at the price such persons paid for such Common Stock, and the Company
fails to exercise such right, it will assign such right to Xxxxxx Xxxxxxx,
Xxxxxx Xxxxx, Novel Biomedical, Inc., JK Holdings, Inc. and the Investors on a
pro rata basis according to the number of shares of Common Stock held by each
such person on an as converted basis. The Company covenants further that it
will either exercise such right or make such assignment no later than ten (10)
days before its right to repurchase such shares terminates.
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
-17-
18
3.2 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.
3.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery, delivery by nationally
recognized overnight courier or five days after deposit in the U.S. mail, by
registered or certified mail postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties.
3.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
3.7 Amendments and Waivers. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, and, in the case of
any provision herein the amendment of which would have an adverse effect on the
Common Holders, with the written consent of holders of a majority of the
Registrable Common Stock. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any Registrable Securities
then outstanding, each future holder of all such Registrable Securities, and
the Company.
3.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 Aggregation of Stock. All shares of Registrable
Securities and Registrable Common Stock held or acquired by affiliated entities
or persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
3.10 Entire Agreement, Amendment, Waiver. This Agreement
(including the Exhibits hereto, if any) constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
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IN WITNESS WHEREOF, the parties have executed this Investors' Rights
Agreement as of the date first above written.
MICRO THERAPEUTICS, INC.
By: /s/ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx, President
INVESTORS:
ABS EMPLOYEES' VENTURE FUND LIMITED
PARTNERSHIP
By:
------------------------------------
Title:
------------------------------------
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
DIMA VENTURES, INC.
By:
------------------------------------
Title:
------------------------------------
Address: 0000 Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By:
------------------------------------
Title:
------------------------------------
Address: 000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed this Investors' Rights
Agreement as of the date first above written.
MICRO THERAPEUTICS, INC.
By:
-------------------------------
Xxxxxx Xxxxxxx, President
INVESTORS:
ABS EMPLOYEES' VENTURE FUND LIMITED
PARTNERSHIP
BY: Alex. Xxxxx Investments
Incorporated, its General Partner
-------------------------------
By: /s/ MAYO X. XXXXXXXX
-------------------------------
Title: Mayo X. Xxxxxxxx III, President
Address: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
DIMA VENTURES, INC.
By:
-------------------------------
Title:
-------------------------------
Address: 0000 Xxxxxx Xxxxx, #000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By:
-------------------------------
Title:
-------------------------------
Address: 000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
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-------------------------------
Xxxxxx Jaquilard
Address: Residence Pre Olivier
Route De La Branvaude
1290 Chavannes-Des-Bois
Switzerland
MAYFIELD VII
By: /s/
-------------------------------
Title: General Partner
-------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MAYFIELD ASSOCIATES FUND II
By: /s/
-------------------------------
Title: General Partner
-------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
-------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
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-------------------------------
Xxxxxx Jaquilard
Address: Residence Pre Olivier
Route De La Branvaude
1290 Chavannes-Des-Bois
Switzerland
MAYFIELD VII
By:
-------------------------------
Title:
-------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MAYFIELD ASSOCIATES FUND II
By:
-------------------------------
Title:
-------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/
-------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
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MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/
-------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
VWMTI INVESTORS
By:
-------------------------------
Title:
-------------------------------
Address: 0 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
-------------------------------
Xxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
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COMMON HOLDERS:
/s/ XXXXXX XXXXXXX
-------------------------------
Xxxxxx Xxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
NOVEL BIOMEDICAL, INC.
By:
-------------------------------
Title:
-------------------------------
Address:
-------------------------------
-------------------------------
JK HOLDINGS, INC.
By:
-------------------------------
Title:
-------------------------------
Address:
-------------------------------
-------------------------------
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COMMON HOLDERS:
-------------------------------
Xxxxxx Xxxxxxx
Address:
-------------------------------
-------------------------------
/s/ XXXXXX XXXXX
-------------------------------
Xxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
NOVEL BIOMEDICAL, INC.
By:
-------------------------------
Title:
-------------------------------
Address:
-------------------------------
-------------------------------
JK HOLDINGS, INC.
By:
-------------------------------
Title:
-------------------------------
Address:
-------------------------------
-------------------------------
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COMMON HOLDERS:
-------------------------------
Xxxxxx Xxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
NOVEL BIOMEDICAL, INC.
By: /s/
-------------------------------
Title: President
-------------------------------
Address: 13845 Industrial Pk. Blvd.
-------------------------------
Xxxxxxxx, XX 00000
-------------------------------
JK HOLDINGS, INC.
By: /s/
-------------------------------
Title: President
-------------------------------
Address: 0000 Xxxxxxx Xxx. S.
-------------------------------
Mpls. XX 00000
-------------------------------
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/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxx Xxx.
-------------------------------
Xxxx Xxxxx, XX 00000
-------------------------------
-------------------------------
Xxxx Xxxxx, M.D.
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
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-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
/s/ XXXX XXXXX
-------------------------------
Xxxx Xxxxx, M.D.
Address: 0000 Xxxxxxx Xxxx
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
Xxxxx Xxxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-23-
29
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxx Xxxxx, M.D.
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
/s/ XXXXX XXXXXX
-------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxx
-------------------------------
Xxxxxxx Xxxx, XX 00000
-------------------------------
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-23-
30
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxx Xxxxx, M.D.
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxxx Xxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
/s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx
Address: 00000 Xxxxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxx, XX 00000
-------------------------------
-23-
31
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxx
Address: 0000 Xxxxxxxxx Xx.
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
Will Thehu
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxx Xxxxxxxx Family Trust
By:
-------------------------------
Title:
-------------------------------
Address:
-------------------------------
-------------------------------
-24-
32
-------------------------------
Xxxxxx Xxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxxxx Xxxxxxxxx
Address:
-------------------------------
-------------------------------
-------------------------------
Will Thehu
Address:
-------------------------------
-------------------------------
-------------------------------
Xxxx Xxxxxxxx Family Trust
By: /s/ XXXXXXX X. XXXXXXXX XX.
-------------------------------
Title: Trustee
-------------------------------
Address: 000 Xxxxxx Xxxxx Xx.
-------------------------------
Xxxxxxx Xxxxxx, XX 00000
-------------------------------
-24-
33
INVESTORS
XXXX XXXXX INVESTMENTS
INCORPORATED
By: /s/ MAYO X. XXXXXXXX III
----------------------------------
Mayo X. Xxxxxxxx III, President
Address: 000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
-25-
34
SCHEDULE A
COMMON HOLDERS:
Xxxxxx Xxxxxxx
Xxxxxx Xxxxx
Novel Biomedical, Inc.
JK Holdings, Inc.
Xxxxxx Xxxxxx
Xxxx Xxxxx, M.D.
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
Will Thehu
Xxxxxxx X. Xxxxxxxx, Xx., Trustee,
and Xxxx Xxxxxxx Xxxxxxxx, Trustee of the Xxxxxxxx Family Trust,
U/D/T August 15, 1990
35
FIRST AMENDMENT TO
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
---------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT is made as of the 17th day of May 1996, by and among Micro
Therapeutics, Inc., a California corporation (the "Company"), persons holding
at least a majority of the Registrable Securities (the "Investors") under the
Amended and Restated Investors' Rights Agreement (the "Rights Agreement") dated
as of February 9, 1995 (as "Registrable Securities" is defined under the Rights
Agreement), the Investors (the "Series C Investors) under the Series C
Preferred Stock Purchase Agreement (the "Series C Agreement") of even date
herewith and the holders of a majority of the Common Stock listed on the
signature pages hereto (the "Common Holders").
NOW, THEREFORE, the parties hereto agree that the Rights Agreement is
amended as expressly provided herein and except as expressly amended continues
in full force and effect as otherwise existing.
1. Definitions. Certain definitions contained in Section 1.1 of
the Rights Agreement are amended to read in full as follows:
(c) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or
Registrable Common Stock or any assignee thereof in accordance
with Section 1.12 hereof.
(f) The term "Registrable Securities" means (i)
the Common Stock issuable or issued upon conversion of the
Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock, and (ii) any
Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of the shares
referenced in (i) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in
which his, her or its rights under this Section 1 are not
assigned.
2. Qualified Small Business Stock. Section 2.7 of the Rights
Agreement shall be amended to add Series C Preferred Stock to the stock that
shall be covered by the provisions therein.
3. The parties to the Rights Agreement shall include the Series C
Investors.
4. Except as expressly provided herein the Rights Agreement
continues in full force and effect.
36
[Signature pages of FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
MICRO THERAPEUTICS, INC.
By: /s/ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx, President
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
MAYFIELD VII
By: Mayfield VII Management Partners,
a California Limited Partnership,
its General Partner
By:
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MAYFIELD ASSOCIATES FUND II,
a California Limited Partnership
By:
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
2
37
[Signature pages of FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
MICRO THERAPEUTICS, INC.
By:
------------------------------------
Xxxxxx Xxxxxxx, President
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXXX VII
By: Mayfield VII Management Partners,
a California Limited Partnership,
its General Partner
By: [SIGNATURE]
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MAYFIELD ASSOCIATES FUND II,
a California Limited Partnership
By: [SIGNATURE]
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
2
38
[Signature pages of FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
MICRO THERAPEUTICS, INC.
By:
------------------------------------
Xxxxxx Xxxxxxx, President
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
MAYFIELD VII
By: Mayfield VII Management Partners,
a California Limited Partnership,
its General Partner
By:
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MAYFIELD ASSOCIATES FUND II,
a California Limited Partnership
By:
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: [SIGNATURE]
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
2
39
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: [SIGNATURE]
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
COMMON HOLDERS:
/s/ XXXXXX XXXXXXX
----------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
----------------------------------------
Xxxxxx Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
SERIES C INVESTORS:
XXXXXXXX VII
By:
------------------------------------
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
3
40
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
COMMON HOLDERS:
----------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
----------------------------------------
Xxxxxx Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
SERIES C INVESTORS:
XXXXXXXX VII
By: Mayfield VII Management Partners,
a California Limited Partnership,
its General Partner
By: [SIGNATURE]
-------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
3
41
MAYFIELD ASSOCIATES FUND II,
a California Limited Partnership
By: [SIGNATURE]
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By:
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
4
42
MAYFIELD ASSOCIATES FUND II
By:
------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: [SIGNATURE]
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: [SIGNATURE]
------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
4
43
XXXXXXXXX CAPITAL PARTNERS II, L.P.
By: XXXXXXXXX ASSOCIATES, L.P.
General Partner
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------
Xxxxxxx X. Xxxxxxxxx
General Partner
Address: 0000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
THE XXXXX INVESTMENT PARTNERSHIP
By: /s/ XXXX XXXXX
------------------------------------
Title: MANAGING PARTNER
---------------------------------
Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By:
------------------------------------
Xxx Xxxxxxx
Title:
---------------------------------
Address: Sumitomo Seimei Aoyama Xxxx.
0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-Xx
Xxxxx 000 Xxxxx
XXXXX VENTURES III L.P.
By:
------------------------------------
Xxxx Xxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
5
44
XXXXXXXXX CAPITAL PARTNERS II, L.P.
By: XXXXXXXXX ASSOCIATES, L.P.
General Partner
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
General Partner
Address: 0000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
THE XXXXX INVESTMENT PARTNERSHIP
By:
------------------------------------
Title:
---------------------------------
Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By: /s/ XXXX XXXX
------------------------------------
For Xxx Xxxxxxx
Title: VICE PRESIDENT
---------------------------------
Address: Sumitomo Seimei Aoyama Xxxx.
0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-Xx
Xxxxx 000 Xxxxx
XXXXX VENTURES III L.P.
By:
------------------------------------
Xxxx Xxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
5
45
XXXXXXXXX CAPITAL PARTNERS II, L.P.
By: XXXXXXXXX ASSOCIATES, L.P.
General Partner
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
General Partner
Address: 0000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
THE XXXXX INVESTMENT PARTNERSHIP
By:
------------------------------------
Title:
---------------------------------
Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By:
------------------------------------
Xxx Xxxxxxx
Title:
---------------------------------
Address: Sumitomo Seimei Aoyama Xxxx.
0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-Xx
Xxxxx 000 Xxxxx
XXXXX VENTURES III L.P.
By: /s/ XXXX XXXXX
------------------------------------
Xxxx Xxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
5
46
COMDISCO, INC.
By: /s/ XXXXX X. XXXX
------------------------------------
XXXXX X. XXXX, PRESIDENT
VENTURE LEASE DIVISION
Title:
---------------------------------
Address: 0000 X. Xxxxx Xxxx
Xxxxxxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
47
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
/s/ XXXXXX X. XXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
48
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXX XXXXXX
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
49
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
/s/ XXXXX X. XxxXXXXXX
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
50
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
/s/ XXXX X. XXXXX
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
51
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
/s/ XXXXXXX XXXXX
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
52
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
/s/ XXXX XXXXX
----------------------------------------
Xxxx Xxxxx
----------------------------------------
H. Xxxx Xxxxxxx
6
53
COMDISCO, INC.
By:
------------------------------------
Xxxxx X. XxXxxxxxx
Title:
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. XxxXxxxxx
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
/s/ H. XXXX XXXXXXX
----------------------------------------
H. Xxxx Xxxxxxx
6
54
SECOND AMENDMENT TO
AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED INVESTORS' RIGHTS
AGREEMENT is made as of the 27th day of June 1996, by and among Micro
Therapeutics, Inc., a California corporation (the "Company"), persons holding at
least a majority of the Registrable Securities (the "Investors") under the First
Amendment to Amended and Restated Investors' Rights Agreement (the "Rights
Agreement") dated as of May 17, 1996 (as "Registrable Securities" is defined
under the Rights Agreement), the Investors (the "Series C Investors") under the
First Amendment to Series C Preferred Stock Purchase Agreement (the "Series C
Agreement"), of even date herewith and the holders of a majority of the Common
Stock listed on the signature pages hereto (the "Common Holders").
NOW, THEREFORE, the parties hereto agree that the Rights Agreement is
amended as expressly provided herein and except as expressly amended continues
in full force and effect as otherwise existing.
1. The parties to the Rights Agreement shall include The CIT
Group/Venture Capital, Inc. and X. Xxxxxxx 1995 Trust, and each such party
agrees to be bound by the terms and conditions of the Rights Agreement.
2. Except as expressly provided herein the Rights Agreement
continues in full force and effect.
55
[Signature pages of SECOND AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT]
MICRO THERAPEUTICS, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxx, President
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
XXXXXXXX VII
By: Mayfield VII Management Partners, a
California Limited Partnership, its General
Partner
By: /s/ [SIGNATURE]
----------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
XXXXXXXX ASSOCIATES FUND II, a California
Limited Partnership
By: /s/ [SIGNATURE]
----------------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/ [SIGNATURE]
----------------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
2
56
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/ [SIGNATURE]
----------------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
COMMON HOLDERS:
/s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxxxxx #X
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxx Xxxxx
-------------------------------------------------
Xxxxxx Xxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
SERIES C INVESTORS:
XXXXXXXX VII
By: Mayfield VII Management Partners, a
California Limited Partnership, its General
Partner
By: /s/ [SIGNATURE]
----------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
3
57
XXXXXXXX ASSOCIATES FUND II, a California
Limited Partnership
By: /s/ [SIGNATURE]
--------------------------------------------------
Title: Authorized Signatory
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO VENTURES VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/ [SIGNATURE]
--------------------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
MENLO ENTREPRENEURS FUND VI, L.P.
By its General Partner:
MV Management VI, L.P.
By: /s/ [SIGNATURE]
--------------------------------------------------
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
4
58
XXXXXXXXX CAPITAL PARTNERS X.X. XX
By: XXXXXXXXX ASSOCIATES, L.P.
General Partner
By:
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
General Partner
Address: 0000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
THE XXXXX INVESTMENT PARTNERSHIP
By: /s/ Xxxx Xxxxx
--------------------------------------------------
Title: /s/ Managing Partner
-----------------------------------------------
Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
XXXX BROS. CO., LTD.
By: /s/ Xxxx Xxxx
--------------------------------------------------
Xxxx Xxxx
Title: Vice President
-----------------------------------------------
Address: Sumitomo Seimei Aoyama Xxxx.
0-0-00, Xxxxxx-Xxxxxx, Xxxxxx-Xx
Xxxxx 000 Xxxxx
XXXXX VENTURES III L.P.
By:
--------------------------------------------------
Xxxx Xxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
5
59
COMDISCO, INC.
By:
--------------------------------------------------
Xxxxx X. XxXxxxxxx
Title:
-----------------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
THE CIT GROUP/VENTURE CAPITAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
X. XXXXXXX 1995 TRUST
By:
--------------------------------------------------
Xxx Xxxxxxx
Title: Trustee
-----------------------------------------------------
Xxxxxx X. Xxxxxxx
-----------------------------------------------------
Xxxxx Xxxxxx
-----------------------------------------------------
Xxxxx X. XxxXxxxxx
-----------------------------------------------------
Xxxx X. Xxxxx
-----------------------------------------------------
Xxxxxxx Xxxxx
-----------------------------------------------------
Xxxx Xxxxx
-----------------------------------------------------
Xxxx X. Xxxxxxx
6
