RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit
10.36
RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT
THIS
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (the “Agreement”)
is
made as of the 20th day of February, 2008 by and among
Asyrmatos, Inc., a Delaware corporation (the “Company”),
Lumera Corporation, a Delaware corporation (“the Investor”),
and
the Key Holders listed on Schedule B.
WHEREAS,
each Key Holder is the beneficial owner of the number of shares of Capital
Stock, or of options to purchase Common Stock, set forth opposite the name
of
such Key Holder on Schedule B;
WHEREAS,
the Company and the Investor are parties to the Contribution Agreement, of
even
date herewith (the “Contribution
Agreement”),
pursuant to which the Investor has agreed to contribute certain assets to the
Company in exchange for Class L Preferred Stock, par value $0.01 per share;
and
WHEREAS,
the Key Holders and the Company desire to further induce the Investor to enter
into the Contribution Agreement;
NOW,
THEREFORE, the Company, the Key Holders, and the Investor agree as
follows:
1. Definitions.
“Affiliate”
means,
with respect to any specified Investor, any other Investor who or which,
directly or indirectly, controls, is controlled by or is under common control
with such Investor, including without limitation any partner, member, officer,
director or employee of such Investor, and any venture capital fund now or
hereafter existing which is controlled by or under common control with one
or
more general partners or managing members of, or shares the same management
company with, such Investor.
“Capital
Stock”
means
(a) shares of Common Stock and Preferred Stock (whether now outstanding or
hereafter issued in any context), (b) shares of Common Stock issued or issuable
upon conversion of Preferred Stock and (c) shares of Common Stock issued or
issuable upon exercise or conversion, as applicable, of stock options, warrants
or other convertible securities of the Company, in each case now owned or
subsequently acquired by any Key Holder, the Investor, or their respective
successors or permitted transferees or assigns. For purposes of the number
of
shares of Capital Stock held by the Investor or Key Holder (or any other
calculation based thereon), all shares of Preferred Stock shall be deemed to
have been converted into Common Stock at the then-applicable conversion ratio.
“Common
Stock”
means
shares of Common Stock of the Company, $0.01 par value per share.
“Company
Notice”
means
written notice from the Company notifying the selling Key Holder that the
Company intends to exercise its Right of First Refusal as to some or all of
the
Transfer Stock with respect to any Proposed Transfer.
“Investor
Notice”
means
written notice from the Investor notifying the Company and the selling Key
Holder that it intends to exercise its Secondary Refusal Right as to a portion
of the Transfer Stock with respect to any Proposed Key Holder
Transfer.
“Key
Holder Notice”
means
written notice from the Key Holders notifying the Company and the Investor
that
it intends to exercise its Secondary Refusal Right as to a portion of the
Transfer Stock with respect to any Proposed Investor Transfer.
“Key
Holders”
means
the persons named on Schedule B
hereto,
each person to whom the rights of a Key Holder are assigned pursuant to the
terms of this Agreement, each person who hereafter becomes a signatory to this
Agreement pursuant to the terms of this Agreement and any one of them, as the
context may require.
“Preferred
Stock”
means
shares of Class L Preferred Stock of the Company, $0.01 par value per
share.
“Proposed
Key Holder Transfer”
means
any assignment, sale, offer to sell, pledge, mortgage, hypothecation,
encumbrance, disposition of or any other like transfer or encumbering of any
Transfer Stock (or any interest therein) proposed by any of the Key
Holders.
“Proposed
Key Holder Transfer Notice”
means
written notice from a Key Holder setting forth the terms and conditions of
a
Proposed Key Holder Transfer.
“Proposed
Investor Transfer”
means
any assignment, sale, offer to sell, pledge, mortgage, hypothecation,
encumbrance, disposition of or any other like transfer or encumbering of any
Transfer Stock (or any interest therein) proposed by the Investor.
“Proposed
Investor Transfer Notice”
means
written notice from an Investor setting forth the terms and conditions of a
Proposed Investor Transfer.
"Proposed
Transfer" means
a
Proposed Investor Transfer and/or a Proposed Key Holder Transfer.
“Proposed
Transfer Notice”
means
a
Proposed Investor Transfer Notice and/or a Proposed Key Holder Transfer
Notice.
“Prospective
Transferee”
means
any person to whom a Key Holder proposes to make a Proposed Key Holder
Transfer.
"Qualifying
Holder" means
(i)
each Investor and (ii) each Key Holder other than the selling Investor or Key
Holder, as applicable.
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“Right
of Co-Sale”
means
the right, but not an obligation, of the Investor to participate in a Proposed
Key Holder Transfer on the terms and conditions specified in the Proposed
Transfer Notice.
“Right
of First Refusal”
means
the right, but not an obligation, of the Company, or its permitted transferees
or assigns, to purchase some or all of the Transfer Stock with respect to a
Proposed Key Holder Transfer, on the terms and conditions specified in the
Proposed Transfer Notice.
“Secondary
Notice”
means
written notice from the Company notifying the Qualifying Holders, as applicable,
and the selling Investor or Key Holder, as applicable, that the Company does
not
intend to exercise its Right of First Refusal as to all shares of Transfer
Stock
with respect to any Proposed Transfer.
“Secondary
Refusal Right”
means
(i) in the case of Proposed Transfer by a Key Holder, the right, but not an
obligation, of the Investor to purchase any Transfer Stock offered by a Key
Holder and, (ii) in the case of Proposed Transfer by the Investor , the right,
but not the obligation, of a Key Holder to purchase up to its pro rata portion
(based upon the total number of shares of Capital Stock then held by all Key
Holders) of any Transfer Stock offered by the Investor, in each case, not
purchased pursuant to the Right of First Refusal, on the terms and conditions
specified in the Proposed Transfer Notice.
“Stockholders”
means,
collectively, the Investor and each of the Key Holders.
“Transfer
Stock”
means
shares of Capital Stock owned by a Key Holder but does not include any shares
of
Common Stock issued or issuable upon conversion of Preferred Stock.
“Undersubscription
Notice”
means
written notice from a Qualifying Holder notifying the Company and the selling
Key Holder or Investor, as applicable, that such Investor or Key Holder intends
to exercise its option to purchase all or any portion of the Transfer Stock
not
purchased pursuant to the Right of First Refusal or the Secondary Refusal
Right.
2. Agreement
Among the Company, the Investor and the Key Holders.
2.1 Right
of First Refusal.
(a) Grant.
Subject
to the terms of Section
3
below,
each Stockholder hereby unconditionally and irrevocably grants to the Company
a
Right of First Refusal to purchase all or any portion of Transfer Stock that
such Stockholder may propose to transfer in a Proposed Transfer, at the same
price and on the same terms and conditions as those offered to the Prospective
Transferee.
(b) Notice.
Each
Stockholder
proposing
to make a Proposed Transfer must deliver a Proposed Transfer Notice to the
Company and the Qualifying Holders not later than forty-five (45) days prior
to
the consummation of such Proposed Transfer. Such Proposed Transfer Notice shall
contain the material terms and conditions (including price and form of
consideration) of the Proposed Transfer and the identity of the Prospective
Transferee. To exercise its Right of First Refusal under this Section
2,
the
Company must deliver a Company Notice to the selling Stockholder within fifteen
(15) days after delivery of the Proposed Transfer Notice. In the event of a
conflict between this Agreement and any other agreement that may have been
entered into by a Stockholder with the Company that contains a preexisting
right
of first refusal, the Company and the Stockholder acknowledge and agree that
the
terms of this Agreement shall control and the preexisting right of first refusal
shall be deemed satisfied by compliance with this Section
2.1(a)
and
(b).
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(c) Grant
of Secondary Refusal Right to Investor.
Subject
to the terms of Section
3
below,
each Key Holder hereby unconditionally and irrevocably grants to the Investor
a
Secondary Refusal Right to purchase all or any portion of the Transfer Stock
not
purchased by the Company pursuant to the Right of First Refusal, as provided
in
this Section 2.1(c).
If the
Company does not intend to exercise its Right of Refusal with respect to all
Transfer Stock subject to a Proposed Key Holder Transfer, the Company must
deliver a Secondary Notice to the selling Key Holder and to the Investor to
that
effect no later than fifteen (15) days after the selling Key Holder delivers
the
Proposed Transfer Notice to the Company. To exercise its Secondary Refusal
Right, the Investor must deliver an Investor Notice to the selling Key Holder
and the Company within ten (10) days after the Company’s deadline for its
delivery of the Secondary Notice as provided in the preceding
sentence.
(d) Grant
of Secondary Refusal Right to Key Holders.
Subject
to the terms of Section
3
below,
the Investor hereby unconditionally and irrevocably grants to the Key Holders
a
Secondary Refusal Right to purchase all or any portion of the Transfer Stock
not
purchased by the Company pursuant to the Right of First Refusal, as provided
in
this Section 2.1(d).
If the
Company does not intend to exercise its Right of Refusal with respect to all
Transfer Stock subject to a Proposed Investor Transfer, the Company must deliver
a Secondary Notice to the Investor and to each Key Holder to that effect no
later than fifteen (15) days after the Investor delivers the Proposed Transfer
Notice to the Company. To exercise its Secondary Refusal Right, each Key Holder
must deliver a Key Holder Notice to the Investor and the Company within ten
(10)
days after the Company’s deadline for its delivery of the Secondary Notice as
provided in the preceding sentence.
(e) Undersubscription
of Transfer Stock.
If
options to purchase have been exercised by the Company and the Investors or
the
Key Holders, as applicable, with respect to some but not all of the Transfer
Stock by the end of the 15-day period specified in the last sentence of
Section
2.1(c)
or
2.1(d),
as
applicable (the “Secondary
Notice Period”),
then
the Company shall, immediately after the expiration of the Secondary Notice
Period, send written notice (the “Company
Undersubscription Notice”)
to
those Qualifying Holders who fully exercised their Secondary Refusal Right
within the Secondary Notice Period (the “Exercising
Holders”).
Each
Exercising Holder shall, subject to the provisions of this Section
2.1(e),
have an
additional option to purchase all or any part of the balance of any such
remaining unsubscribed shares of Transfer Stock on the terms and conditions
set
forth in the Proposed Transfer Notice. To exercise such option, an Exercising
Holder must deliver an Undersubscription Notice to the selling Investor or
Key
Holder, as applicable, and the Company within ten (10) days after the expiration
of the Secondary Notice Period. In the event there are two or more such
Exercising Holders that choose to exercise the last-mentioned option for a
total
number of remaining shares in excess of the number available, the remaining
shares available for purchase under this Section
2.1(e)
shall be
allocated to such Exercising Holders pro rata based on the number of shares
of
Transfer Stock such Exercising Holders have elected to purchase pursuant to
the
Secondary Refusal Right (without giving effect to any shares of Transfer Stock
that any such Exercising Holder has elected to purchase pursuant to the Company
Undersubscription Notice). If the options to purchase the remaining shares
are
exercised in full by the Exercising Holders, the Company shall immediately
notify all of the Exercising Holders and the selling Investor or Key Holder,
as
applicable, of that fact.
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(f) Consideration;
Closing.
If the
consideration proposed to be paid for the Transfer Stock is in property,
services or other non-cash consideration, the fair market value of the
consideration shall be as determined in good faith by the Company’s Board of
Directors and as set forth in the Company Notice. If the Company or any
Qualifying Holder cannot for any reason pay for the Transfer Stock in the same
form of non-cash consideration, the Company or such Qualifying Holders may
pay
the cash value equivalent thereof, as determined in good faith by the Board
of
Directors and as set forth in the Company Notice. The closing of the purchase
of
Transfer Stock by the Company and the Qualifying Holders shall take place,
and
all payments from the Company and the Qualifying Holders shall have been
delivered to the selling Investor or Key Holder, as applicable, by the later
of
(i) the date specified in the Proposed Transfer Notice as the intended date
of the Proposed Key Holder Transfer and (ii) forty-five (45) days after delivery
of the Proposed Transfer Notice.
2.2 Right
of Co-Sale.
(a) Exercise
of Right.
If any
Transfer Stock subject to a Proposed Transfer is not purchased pursuant to
Section
2.1
above
and thereafter is to be sold to a Prospective Transferee, the Qualifying Holders
may elect to exercise their Right of Co-Sale and participate on a pro rata
basis
in the Proposed Transfer as set forth in Section
2.2(b)
below
and otherwise on the same terms and conditions specified in the Proposed
Transfer Notice (provided that if the Qualifying Holder wishes to sell Preferred
Stock, the price set forth in the Proposed Transfer Notice shall be
appropriately adjusted based on the conversion ratio of the Preferred Stock
into
Common Stock). If the Qualifying Holder desires to exercise its Right of
Co-Sale, it must give the selling Stockholder written notice to that effect
within fifteen (15) days after the deadline for delivery of the Secondary Notice
described above and, upon giving such notice, the Qualifying Holder shall be
deemed to have effectively exercised the Right of Co-Sale.
(b) Shares
Includable.
If the
Qualifying Holder timely exercises its Right of Co-Sale by delivering the
written notice provided for above in Section
2.2(a),
it may
include in the Proposed Transfer all or any part of its Capital Stock equal
to
the product obtained by multiplying (i) the aggregate number of shares of
Transfer Stock subject to the Proposed Transfer (excluding shares purchased
by
the Company or the Qualifying Holders pursuant to the Right of First Refusal
or
the Secondary Refusal Right) by (ii) a fraction, the numerator of which is
the
number of shares of Capital Stock owned by such Qualifying Holder immediately
before consummation of the Proposed Transfer (including any shares that such
Qualifying Holder has agreed to purchase pursuant to the Secondary Refusal
Right) and the denominator of which is the total number of shares of Capital
Stock owned by such Qualifying Holder immediately prior to the consummation
of
the Proposed Transfer (including any shares that such Qualifying Holder has
agreed to purchase pursuant to the Secondary Refusal Right), plus the number
of
shares of Transfer Stock held by the selling Stockholder. To the extent a
Qualifying Holder exercises such right of participation in accordance with
the
terms and conditions set forth herein, the number of shares of Transfer Stock
that the selling Stockholder may sell in the Proposed Transfer shall be
correspondingly reduced.
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(c) Delivery
of Certificates.
The
Qualifying Holder shall effect its participation in the Proposed Transfer by
delivering to the transferring Investor or Key Holder, as applicable, no later
than fifteen (15) days after its exercise of the Right of Co-Sale, one or more
stock certificates, properly endorsed for transfer to the Prospective
Transferee, representing:
(i) the
number of shares of Common Stock that the Qualifying Holder elects to include
in
the Proposed Transfer; or
(ii) the
number of shares of Preferred Stock that is at such time convertible into the
number of shares of Common Stock that the Qualifying Holder elects to include
in
the Proposed Transfer; provided,
however,
that if
the Prospective Transferee objects to the delivery of convertible Preferred
Stock in lieu of Common Stock, the Qualifying Holder shall first convert the
Preferred Stock into Common Stock and deliver Common Stock as provided above.
The Company agrees to make any such conversion concurrent with and contingent
upon the actual transfer of such shares to the Prospective
Transferee.
(d) Purchase
Agreement.
The
parties hereby agree that the terms and conditions of any sale pursuant to
this
Section
2.2
will be
memorialized in, and governed by, a written purchase and sale agreement with
customary terms and provisions for such a transaction and the parties further
covenant and agree to enter into such an agreement as a condition precedent
to
any sale or other transfer pursuant to this Section
2.2.
(e) Deliveries.
Each
stock certificate the Qualifying Holder delivers to the selling Investor or
Key
Holder, as applicable, pursuant to Section
2.2(c)
above
will be transferred to the Prospective Transferee against payment therefor
in
consummation of the sale of the Transfer Stock pursuant to the terms and
conditions specified in the Proposed Transfer Notice and the purchase and sale
agreement, and the selling Investor or Key Holder, as applicable, shall
concurrently therewith remit or direct payment to the Qualifying Holder the
portion of the sale proceeds to which it is entitled by reason of its
participation in such sale. If any Prospective Transferee or Transferees
refuse(s) to purchase securities subject to the Right of Co-Sale from the
Qualifying
Holder
exercising its Right of Co-Sale hereunder, no selling Stockholder may sell
any
Transfer Stock to such Prospective Transferee or Transferees unless and until,
simultaneously with such sale, such selling Stockholder purchases all securities
subject to the Right of Co-Sale from the Qualifying Holder exercising its Right
of Co-Sale hereunder on the same terms and conditions (including the proposed
purchase price) as set forth in the Proposed Transfer Notice.
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(f) Additional
Compliance.
If any
Proposed Transfer is not consummated within forty-five (45) days after receipt
of the Proposed Transfer Notice by the Company, the Stockholder proposing the
Proposed Transfer may not sell any Transfer Stock unless they first comply
in
full with each provision of this Section
2.
The
exercise or election not to exercise any right by the Qualifying Holders
hereunder shall not adversely affect its right to participate in any other
sales
of Transfer Stock subject to this Section 2.2.
2.3 Dispositions
of All Capital Stock.
(a) If
any
Key Holder transfers all of his or her Capital Stock in the Company pursuant
to
this Agreement, he or she shall be required by the Directors of the Corporation
to resign from any and all official positions he or she may hold with the
Corporation, including but not limited to positions as an officer and a director
of the Corporation.
(b) If
any
Key Holder transfers all of his or her Capital Stock in the Company pursuant
to
this Agreement, any and all indebtedness of such Key Holder to the Corporation
shall be immediately due and payable.
2.4 Effect
of Failure to Comply.
(a) Transfer
Void; Equitable Relief.
Any
Proposed Transfer not made in compliance with the requirements of this Agreement
shall be null and void ab initio, shall not be recorded on the books of the
Company or its transfer agent and shall not be recognized by the Company. Each
party hereto acknowledges and agrees that any breach of this Agreement would
result in substantial harm to the other parties hereto for which monetary
damages alone could not adequately compensate. Therefore, the parties hereto
unconditionally and irrevocably agree that any non-breaching party hereto shall
be entitled to seek protective orders, injunctive relief and other remedies
available at law or in equity (including, without limitation, seeking specific
performance or the rescission of purchases, sales and other transfers of
Transfer Stock not made in strict compliance with this Agreement).
(b) Violation
of First Refusal Right.
If any
Stockholder becomes obligated to sell any Transfer Stock to the Company or
a
Qualifying Holder under this Agreement and fails to deliver such Transfer Stock
in accordance with the terms of this Agreement, the Company and/or the
Qualifying Holders may, at its option, in addition to all other remedies it
may
have, send to such selling Stockholder the purchase price for such Transfer
Stock as is herein specified and transfer to the name of the Company or the
Qualifying Holder (or request that the Company effect such transfer in the
name
of the Investor) on the Company’s books the certificate or certificates
representing the Transfer Stock to be sold.
(c) Violation
of Co-Sale Right.
If any
Stockholder purports to sell any Transfer Stock in contravention of the Right
of
Co-Sale (a “Prohibited
Transfer”)
and
the Qualifying Holder desires to exercise its Right of Co-Sale under
Section
2.2,
it may,
in addition to such remedies as may be available by law, in equity or hereunder,
require such selling Stockholder to purchase from the Qualifying Holder the
type
and number of shares of Capital Stock that the Qualifying Holder would have
been
entitled to sell to the Prospective Transferee under Section
2.2
had the
Prohibited Transfer been effected pursuant to and in compliance with the terms
of Section
2.2.
The
sale will be made on the same terms and subject to the same conditions as would
have applied had the selling Stockholder not made the Prohibited Transfer,
except that the sale (including, without limitation, the delivery of the
purchase price) must be made within ninety (90) days after the Investor learns
of the Prohibited Transfer, as opposed to the timeframe proscribed in
Section 2.2.
Such
selling Stockholder shall also reimburse the Qualifying Holder for any and
all
reasonable and documented out-of-pocket fees and expenses, including reasonable
legal fees and expenses, incurred pursuant to the exercise or the attempted
exercise of the Investor’s rights under Section 2.2.
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3. Exempt
Transfers.
Notwithstanding
the foregoing or anything to the contrary herein, the provisions of Sections
2.1
and 2.2 shall not apply: (a) in the case of a Stockholder that is an entity,
upon a transfer by such Stockholder to its stockholders, members, partners
or
other equity holders, (b) to a repurchase of Transfer Stock from a Stockholder
by the Company at a price no greater than that originally paid by such
Stockholder for such Transfer Stock and pursuant to an agreement containing
vesting and/or repurchase provisions approved by a majority of the Board of
Directors, or (c) in the case of a Key Holder, upon a transfer of Transfer
Stock
by such Key Holder made for bona fide estate planning purposes, either during
his or her lifetime or on death by will or intestacy to his or her spouse,
child
(natural or adopted), or any other direct lineal descendant of such Key Holder
(or his or her spouse) (all of the foregoing collectively referred to as “family
members”), or any other relative/person approved by unanimous consent of the
Board of Directors of the Company, or any custodian or trustee of any trust,
partnership or limited liability company for the benefit of, or the ownership
interests of which are owned wholly by, such Key Holder or any such family
members; provided that in the case of clauses (a) or (c) (i) the Stockholder
or
Key Holder, as applicable, shall deliver prior written notice to the Company
and
the other Stockholders of such gift or transfer and such shares of Transfer
Stock shall at all times remain subject to the terms and restrictions set forth
in this Agreement and such transferee shall, as a condition to such issuance,
deliver a counterpart signature page to this Agreement as confirmation that
such
transferee shall be bound by all the terms and conditions of this Agreement
as
Investor or Key Holder, as applicable, (but only with respect to the securities
so transferred to the transferee), including the obligations of a Stockholder
with respect to Proposed Transfers of such Transfer Stock pursuant to Section
2,
and (ii), that such transfer is made pursuant to a transaction in which there
is
no consideration actually paid for such transfer.
3.1 Exempted
Offerings. Notwithstanding the foregoing or anything to the contrary herein,
the provisions of Section 2 shall not apply to the sale of any Transfer Stock
(a) to the public in an offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended (a “Public
Offering”)
or (b)
pursuant to a Deemed Liquidation Event (as defined in the Company’s Certificate
of Incorporation).
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3.2 Prohibited
Transferees. Notwithstanding the foregoing, no Stockholder shall transfer
any Transfer Stock to (a) any entity which, in the determination of the
Company’s Board of Directors, directly or indirectly competes with the Company
or (b) any customer, distributor or supplier of the Company, if the Company’s
Board of Directors should determine that such transfer would result in such
customer, distributor or supplier receiving information that would place the
Company at a competitive disadvantage with respect to such customer, distributor
or supplier.
4. Legend.
Each
certificate representing shares of Transfer Stock held by the Shareholders
or
issued to any permitted transferee in connection with a transfer permitted
by
Section 3(a) hereof shall be endorsed with the following
legend:
THE
SALE,
PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND
CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT BY AND
AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN OTHER HOLDERS OF STOCK OF
THE
CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST
TO
THE SECRETARY OF THE CORPORATION.
Each
Shareholder agrees that the Company may instruct its transfer agent to impose
transfer restrictions on the shares represented by certificates bearing the
legend referred to in this Section 4 above to enforce the provisions of
this Agreement, and the Company agrees to promptly do so. The legend shall
be
removed upon termination of this Agreement at the request of the
holder.
5. Lock-Up.
5.1 Agreement
to Lock-Up. Each Stockholder hereby agrees that it will not, without the
prior written consent of the managing underwriter, during the period commencing
on the date of the final prospectus relating to the Company’s initial public
offering (the “IPO”)
and
ending on the date specified by the Company and the managing underwriter or,
if
required by such underwriter, such longer period of time as is necessary to
enable such underwriter to issue a research report or make a public appearance
that relates to an earnings release or announcement by the Company within 15-18
days prior to or after the date that is one hundred eighty (180) days after
the
effective date of the registration statement relating to such offering, but
in
any event not to exceed two hundred ten (210) days following the effective
date
of the registration statement relating to such offering (a) lend, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Capital Stock held immediately prior
to
the effectiveness of the registration statement for the IPO or (b) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Capital Stock,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of Capital Stock or other securities, in cash or otherwise.
The foregoing provisions of this Section 5 shall apply only to the IPO, shall
not apply to the sale of any shares to an underwriter pursuant to an
underwriting agreement, and shall only be applicable to the Stockholders if
all
officers, directors and greater than one percent (1%) stockholders of the
Company enter into similar agreements. The underwriters in connection with
the
IPO are intended third-party beneficiaries of this Section 5 and shall have
the
right, power and authority to enforce the provisions hereof as though they
were
a party hereto. Each Stockholder further agrees to execute such agreements
as
may be reasonably requested by the underwriters in the IPO that are consistent
with this Section 5 or that are necessary to give further effect
thereto.
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5.2 Stop
Transfer Instructions. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to the shares of
Capital Stock of each Stockholder (and transferees and assignees thereof) until
the end of such restricted period.
6. Miscellaneous.
6.1 Term.
This Agreement shall automatically terminate upon the earlier of
(a) immediately prior to the consummation of the Company’s IPO and (b) the
consummation of a Deemed Liquidation Event (as defined in the Company’s
Certificate of Incorporation).
6.2 Stock
Split. All references to numbers of shares in this Agreement shall be
appropriately adjusted to reflect any stock dividend, split, combination or
other recapitalization affecting the Capital Stock occurring after the date
of
this Agreement.
6.3 Ownership.
Each Stockholder represents and warrants that such Stockholder is the sole
legal
and beneficial owner of the shares of Transfer Stock subject to this Agreement
and that no other person or entity has any interest in such shares (other than
a
community property interest as to which the holder thereof has acknowledged
and
agreed in writing to the restrictions and obligations hereunder).
6.4 Notices.
All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given, delivered and received:
(i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (iii) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one (1) business day after the business
day
deposit with a nationally recognized overnight courier, specifying next -day
delivery, with written verification of receipt. All communications shall be
sent
to the respective parties at their address as set forth on Schedule A or
Schedule B hereof, as the case may be, or to the principal office of the Company
and to the attention of the CEO, in the case of the Company, or to such email
address, facsimile number or address as subsequently modified by written notice
given in accordance with this Section 6.4. If notice is given to the Investor,
a
copy shall also be sent to Ropes & Xxxx LLP, Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, XX 00000, Attention Xxxxxxxxxxx Xxxxxx.
10
6.5 Entire
Agreement. This
Agreement (including the Exhibits and Schedules hereto) the Restated Certificate
and the other Transaction Agreements (as defined in the Contribution Agreement)
constitutes the full and entire understanding and agreement between the parties
with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties
are
expressly canceled.
6.6 Delays
or Omissions. No
delay
or omission to exercise any right, power or remedy accruing to any party under
this Agreement, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such non-breaching
or
non-defaulting party nor shall it be construed to be a waiver of or acquiescence
to any such breach or default or to any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Any
waiver, permit, consent or approval of any kind or character on the part of
any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
6.7 Amendment;
Waiver and Termination. This Agreement may be amended, modified or
terminated (other than pursuant to Section 6.1 above) and the observance of
any
term hereof may be waived (either generally or in a particular instance and
either retroactively or prospectively) only
by a
written instrument executed by (a) the Company, (b) the
Key
Holders holding a majority of the shares of Transfer Stock then held by all
of
the Key Holders who are then providing services to the Company as officers,
employees or consultants, and (c) the Investor. Any amendment,
modification, termination or waiver so effected shall be binding upon the
Company, the Investor, the Key Holders and all of their respective successors
and permitted assigns. Notwithstanding the foregoing, (i) this Agreement may
not
be amended, modified or terminated and the observance of any term hereunder
may
not be waived with respect to any Key Holder without the written consent of
such
Key Holder unless such amendment, modification, termination or waiver applies
to
all Key Holders, respectively, in the same fashion and (ii) the consent of
the
Key Holders shall not be required for any amendment, modification, termination
or waiver if such amendment, modification, termination or waiver does not apply
to the Key Holders, and (iii) Exhibit A hereto may be amended by the Company
from time to time in accordance with the Purchase Agreement to add information
regarding Additional Purchasers (as defined in the Purchase Agreement) without
the consent of the other parties hereto. The Company shall give prompt written
notice of any amendment, modification or termination hereof or waiver hereunder
to any party hereto that did not consent in writing to such amendment,
modification, termination or waiver. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall
be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
6.8 Assignment
of Rights.
(a) The
terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and permitted assigns of the parties. Nothing
in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and permitted assigns
any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
11
(b) Any
successor or permitted assignee of any Key Holder, including any Prospective
Transferee who purchases shares of Transfer Stock in accordance with the terms
hereof, shall deliver to the Company and the Investor, as a condition to any
transfer or assignment, a counterpart signature page hereto pursuant to which
such successor or permitted assignee shall confirm their agreement to be subject
to and bound by all of the provisions set forth in this Agreement that were
applicable to the predecessor or assignor of such successor or permitted
assignee.
(c) The
rights of the Investor hereunder are not assignable without the Company’s
written consent (which shall not be unreasonably withheld, delayed or
conditioned), except (i) to any Affiliate or (ii) to an assignee or
transferee who acquires at least 100,000 shares of Capital Stock (as
adjusted for any stock combination, stock split, stock dividend,
recapitalization or other similar transaction), it being acknowledged and agreed
that any such assignment, including an assignment contemplated by the preceding
clauses (i) or (ii) shall be subject to and conditioned upon any such assignee’s
delivery to the Company of a counterpart signature page hereto pursuant to
which
such assignee shall confirm their agreement to be subject to and bound by all
of
the provisions set forth in this Agreement that were applicable to the assignor
of such assignee.
(d) Except
in
connection with an assignment by the Company by operation of law to the acquirer
of the Company, the rights and obligations of the Company hereunder may not
be
assigned under any circumstances.
6.9 Severability.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
6.10 Additional
Investors. Notwithstanding anything to the contrary contained herein, if the
Company issues additional shares of the Company’s Preferred Stock after the date
hereof, any purchaser of such shares of Preferred Stock may become a party
to
this Agreement by executing and delivering an additional counterpart signature
page to this Agreement and thereafter shall be deemed an “Investor” for all
purposes hereunder.
6.11 Governing
Law;
Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the General
Corporation Law of the State of Delaware as to matters within the scope thereof,
and as to all other matters shall be governed by and construed in accordance
with the internal laws of the State of Delaware, without regard to its
principles of conflicts of laws. The
parties (a) hereby irrevocably and unconditionally submit to the jurisdiction
of
the state and federal courts located in the State of Delaware for the purpose
of
any suit, action or other proceeding arising out of or based upon this Agreement
(“Covered
Matters”),
(b)
agree not to commence any suit, action or other proceeding arising out of or
based upon any Covered Matters except in the state courts or federal courts
located in the State of Delaware , and (c) hereby waive, and agree not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that
this
Agreement or the subject matter of any Covered Matter may not be enforced in
or
by such court.
12
6.12 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.
6.13 Counterparts;
Facsimile. This Agreement may also be executed and delivered by facsimile
signature and 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.
6.14 Aggregation
of Stock. All shares of Capital 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 and the exercise of any
such
rights may be allocated among such affiliated entities in such manner as such
affiliated entities may determine in their discretion.
6.15 Specific
Performance. In addition to any and all other remedies that may be available
at law in the event of any breach of this Agreement, the Investor shall be
entitled to specific performance of the agreements and obligations of the
Company and the Key Holders hereunder and to such other injunction or other
equitable relief as may be granted by a court of competent
jurisdiction.
6.16 Additional
Key Holders. In the event that after the date of this Agreement, the Company
issues shares of Transfer Stock, or options to purchase Transfer Stock, to
any
employee or consultant, which shares or options would collectively constitute
with respect to such employee or consultant (taking into account all shares
of
Transfer Stock, options and other purchase rights held by such employee or
consultant) one percent (1%) or more of the Company’s then outstanding Capital
Stock (treating for this purpose all shares of Common Stock issuable upon
exercise of or conversion of outstanding options, warrants or convertible
securities, as if exercised or converted), the Company shall, as a condition
to
such issuance, cause such employee or consultant to execute a counterpart
signature page hereto as a Key Holder, and such person shall thereby be bound
by, and subject to, all the terms and provisions of this Agreement applicable
to
a Key Holder.
6.17 Further
Assurances. At any time or from time to time after the date hereof, the
parties agree to cooperate with each other, and at the request of any other
party, to execute and deliver any further instruments or documents and to take
all such further action as the other party may reasonably request in order
to
evidence or effectuate the consummation of the transactions contemplated hereby
and to otherwise carry out the intent of the parties hereunder.
6.18 Spousal
Consent. If any individual Key Holder is married on the date of this
Agreement and is a resident of Arizona, California, Idaho, Louisiana, Nevada,
New Mexico, Texas, Washington or Wisconsin, or the Commonwealth of Puerto Rico,
such Stockholder’s spouse shall execute and deliver to the Company a Consent of
Spouse in the form of Exhibit A hereto (“Consent
of Spouse”),
effective on the date hereof. Notwithstanding the execution and delivery
thereof, such consent shall not be deemed to confer or convey to the spouse
any
rights in such Key Holder’s Capital Stock that do not otherwise exist by
operation of law or the agreement of the Parties. If any individual Stockholder
who is a resident of Arizona, California, Idaho, Louisiana, Nevada, New Mexico,
Texas, Washington or Wisconsin, or the Commonwealth of Puerto Rico should marry
or remarry subsequent to the date of this Agreement, such Stockholder shall
within thirty (30) days thereafter obtain his/her new spouse’s acknowledgement
of and consent to the existence and binding effect of all restrictions contained
in this Agreement by causing such spouse to execute and deliver a Consent of
Spouse acknowledging the restrictions and obligations contained in this
Agreement and agreeing and consenting to the same.
[Remainder
of Page Intentionally Left Blank.]
13
IN
WITNESS WHEREOF, the parties have executed this Right of First Refusal and
Co-Sale Agreement as of the date first written above.
|
ASYRMATOS,
INC.
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||
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By:
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/s/
Xxxxx Xxxxxx
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Name:
|
Xxxxx
Xxxxxx
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|
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Title:
|
Chief
Executive Officer
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LUMERA
CORPORATION
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||
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By:
|
/s/
Xxxxx X. Xxxxx
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|
|
Name:
|
Xxxxx
X. Xxxxx
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|
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Title:
|
Chief
Financial Officer
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KEY
HOLDERS:
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||
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By:
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/s/
Xxxxx Xxxxxx
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|
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Name:
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Xxxxx
Xxxxxx
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By:
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/s/
Xxx Xxxxx
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|
|
Name:
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Xxx
Xxxxx
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By:
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/s/
Xxxxxxx Xxxxx
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|
Name:
|
Xxxxxxx
Xxxxx
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By:
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/s/
Xxxxx XxXxxxx
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|
|
Name:
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Xxxxx
XxXxxxx
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