EXHIBIT 10.14
VISTA MEDICAL TECHNOLOGIES, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
November 27, 1996
TABLE OF CONTENTS
Page
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SECTION 1. RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS . . . . . . . 1
1.1 Restrictions on Transferability . . . . . . . . . . . . . . 1
1.2 Certain Definitions . . . . . . . . . . . . . . . . . . . . 2
1.3 Restrictive Legend(s) . . . . . . . . . . . . . . . . . . . 3
1.4 Notice of Proposed Transfers. . . . . . . . . . . . . . . . 3
1.5 Demand Registration Rights. . . . . . . . . . . . . . . . . 4
1.6 Company Registration. . . . . . . . . . . . . . . . . . . . 6
1.7 Form S-3 Registration Rights. . . . . . . . . . . . . . . . 7
1.8 Expenses of Registration. . . . . . . . . . . . . . . . . . 8
1.9 Registration Procedures . . . . . . . . . . . . . . . . . . 8
1.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . 9
1.11 Information by Holder . . . . . . . . . . . . . . . . . . . 11
1.12 Rule 144 Reporting. . . . . . . . . . . . . . . . . . . . . 11
1.13 Transfer of Registration Rights . . . . . . . . . . . . . . 12
1.14 Termination of Registration Rights. . . . . . . . . . . . . 12
1.15 "Market Stand Off" Agreement. . . . . . . . . . . . . . . . 13
SECTION 2. AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS . . . 13
2.1 Financial Information . . . . . . . . . . . . . . . . . . . 13
2.2 Assignment of Rights to Financial Information . . . . . . . 14
2.3 Inspection Rights . . . . . . . . . . . . . . . . . . . . . 14
2.4 Attendance at Board Meetings. . . . . . . . . . . . . . . . 15
2.5 Termination of Covenants. . . . . . . . . . . . . . . . . . 15
2.6 Confidential Information, etc . . . . . . . . . . . . . . . 15
SECTION 3. RIGHTS OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . 16
3.1 Right of First Refusal on Company Issuances . . . . . . . . 16
SECTION 4. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 17
4.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 17
4.2 Successors and Assigns. . . . . . . . . . . . . . . . . . . 17
4.3 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . 18
4.4 Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . 18
4.6 Severability. . . . . . . . . . . . . . . . . . . . . . . . 18
4.7 Separability. . . . . . . . . . . . . . . . . . . . . . . . 18
4.8 Approval of Amendments and Waivers. . . . . . . . . . . . . 18
4.9 Amendment of Prior Agreement. . . . . . . . . . . . . . . . 19
VISTA MEDICAL TECHNOLOGIES, INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (the "Agreement") is
made as of the 27th day of November, 1996 (the "Effective Date"), by and between
Vista Medical Technologies, Inc., a Delaware corporation (the "Company"), and
the Stockholders listed on Schedule A hereto, each of which is herein referred
to as a "Stockholder."
RECITALS
WHEREAS, the Company and certain of the Stockholders (the "Series A
Stockholders") are parties to a certain Investors' Rights Agreement dated as of
July 12, 1996, as amended through the date hereof (the "Prior Agreement"),
pursuant to which certain of the Stockholders possess registration rights,
information rights, rights of first refusal and other rights, and the Company is
obligated thereunder;
WHEREAS, the Company and one of the Stockholders are parties to the
Series C Preferred Stock Purchase Agreement dated the date hereof (the "Series C
Agreement"); and
WHEREAS, in order to induce the Company to enter into the Series C
Agreement and to induce such Stockholder to purchase shares of the Company's
Series C Preferred Stock (the "Series C Preferred") pursuant to the Series C
Agreement, the Stockholders and the Company hereby agree that this Agreement
shall amend the Prior Agreement so that this Agreement shall govern the
obligations of the Company to register the resale of shares of Common Stock
issuable to the Stockholders upon conversion of their shares of the Company's
Series A-1 Preferred Stock, Series A-3 Preferred Stock (collectively, the
"Series A Preferred"), Series B Preferred Stock (the "Series B Preferred")
and/or Series C Preferred, and certain other matters as set forth herein.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1.
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS
1.1 RESTRICTIONS ON TRANSFERABILITY. Neither the Series A Preferred,
the Series B Preferred or the Series C Preferred nor the Registrable Securities
(as defined below) shall be transferable except upon the conditions specified in
this Agreement, which conditions are intended to insure compliance with the
provisions of the Securities Act (as defined below), or upon such other terms as
are in the opinion of counsel to the Company satisfactory to comply with the
provisions of the Securities Act. Except for transfers made pursuant to Rule
144 of the Securities Act, the Stockholders will cause any proposed transferee
of Series
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A Preferred, Series B Preferred, Series C Preferred or Registrable Securities
held by any Stockholder to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Agreement and it will be a
condition precedent to the effectiveness of any such transfer that the Company
shall have secured a written agreement in form and substance satisfactory to the
Company to that effect, if so requested by the Company,
1.2 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"FORM S-3" shall mean Form S-3 under the Securities Act (as defined below)
as in effect on the date of this Agreement, or any substantially similar,
equivalent or successor form under the Securities Act.
"HOLDER" shall mean each holder of Registrable Securities.
"REGISTRABLE SECURITIES" means (i) the Common Stock issuable or issued
upon conversion of the Series A Preferred, (ii) the Common Stock issuable or
issued upon conversion of the Series B Preferred, (iii) the Common Stock
issuable or issued upon conversion of the Series C Preferred, and (iv) any
Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the shares referenced in (i), (ii) and (iii) above, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his rights under this Section 1 are not assigned and any Registerable Securities
as to which the registration rights granted hereunder have been terminated
pursuant to Section 1.14.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in
complying with Sections 1.5, 1.6 and 1.7 hereof other than Selling Expenses,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of Company counsel, blue
sky fees and expenses, and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company which shall be paid in any event by the Company).
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"RESTRICTED SECURITIES" shall mean the securities of the Company required
to bear the legend set forth in Section 1.3 hereof or a legend substantially
similar thereto and all shares of Common Stock outstanding on the date of this
Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the applicable sale.
1.3 RESTRICTIVE LEGEND(S).
(a) Each certificate representing the shares of Series A Preferred,
Series B Preferred, Series C Preferred and Registrable Securities shall (unless
otherwise permitted by the provisions of Section 1.4 below) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable California or other state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR
TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION.
(b) Each certificate representing shares of Registrable Securities into
which shares of the Series A Preferred, Series B Preferred and/or Series C
Preferred are converted also shall be stamped or otherwise imprinted with any
legend required by the Bylaws of the Company (in addition to any legend required
under applicable California or other state securities laws).
1.4 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing the Restricted Securities, by acceptance thereof, agrees to comply
in all respects with the provisions of this Section 1.4. Prior to any proposed
transfer of any Restricted Securities, unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the holder
thereof shall give written notice to the Company of such holder's intention to
effect such transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall be
accompanied (except in transactions in compliance with Rule 144) by either (i) a
written opinion of legal counsel which shall be reasonably satisfactory to the
Company addressed to the Company and
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reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act, or (ii) a "no action" letter from
the Commission, a copy of any holder's request (together with all supplements or
amendments thereto) to which shall have been provided to the Company, at or
prior to the time of first delivery to the Commission's staff, to the effect
that the transfer of such securities without registration will not result in a
recommendation by such staff that action be taken with respect thereto,
whereupon the holder of such Restricted Securities shall be entitled to transfer
such Restricted Securities in accordance with the terms of the notice delivered
by the holder to the Company. Each certificate evidencing the Restricted
Securities transferred as provided for above shall bear the appropriate
restrictive legend set forth in Section 1.3 above, except that such certificate
shall not bear such restrictive legend if, in the opinion of counsel for the
Company or counsel for such holder, such legend is not required in order to
establish compliance with any provisions of the Securities Act.
Notwithstanding the provisions above, no such opinion of counsel or "no
action letter" shall be necessary for a transfer by a Stockholder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner ("Partners"), if the transferee agrees in writing to
be subject to the terms hereof to the same extent as if he were an original
Stockholder hereunder.
1.5 DEMAND REGISTRATION RIGHTS.
(a) Commencing on the third anniversary of the Effective Date, if the
Company shall receive a written request (specifying that it is being made
pursuant to this Section 1.5) from the Holders of at least forty percent (40%)
of the Registrable Securities that the Company file a registration statement or
similar document under the Securities Act covering the registration of
Registrable Securities the expected aggregate offering price to the public of
which is at least $7,500,000, then the Company shall promptly notify all other
Holders of such request and shall use its best efforts to cause all Registrable
Securities that such Holders have requested, within fifteen (15) days after
receipt of such written notice, to be registered in accordance with this Section
1.5 to be registered under the Securities Act. The Holders making the written
request pursuant to this Section 1.5 shall be referred to hereinafter as the
"Initiating Holders".
Notwithstanding the foregoing, (i) the Company shall not be obligated to
effect a registration pursuant to this Section 1.5 during the period starting
with the date one hundred twenty (120) days prior to the Company's estimated
date of filing of, and ending on a date one hundred eighty (180) days following
the effective date of, a registration statement pertaining to an underwritten
public offering of the Company's securities, provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and that the Company's estimate of
the date of filing such registration statement is made in good faith; and (ii)
if the Company shall furnish to such
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Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be seriously detrimental
to the Company or its stockholders for a registration statement to be filed in
the near future, then the Company's obligation to use its best efforts to file a
registration statement shall be deferred for a period not to exceed six (6)
months; provided, however, that the Company shall not obtain such a deferral
more than once in any 12-month period.
The Company shall be obligated to effect not more than two (2)
registrations pursuant to this Section 1.5 for which holders of Registrable
Securities are the Initiating Holders.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their demand by means of an underwriting, they shall so
advise the Company as part of their demand made pursuant to this Section 1.5,
and the Company shall include such information in the notice referred to in
Section 1.5(a). In such event, the right of any Holder to registration pursuant
to this Section 1.5 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.
The Company shall, together with all Holders proposing to distribute their
securities through such underwriting, enter into an underwriting agreement in
customary form with the underwriter or underwriters selected by the Company and
reasonably satisfactory to a majority of interest of the Initiating Holders.
Notwithstanding any other provision of this Section 1.5, if the underwriter
shall advise the Company in writing that marketing factors (including, without
limitation, an adverse effect on the per share offering price) require a
limitation of the number of shares to be underwritten, then the Company shall so
advise all Holders of Registrable Securities that would otherwise be registered
and underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated pro rata among such Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, such Holder
may elect to withdraw therefrom by written notice to the Company, the
underwriter and the Initiating Holders. The Registrable Securities so withdrawn
shall also be withdrawn from registration. If by the withdrawal of such
Registrable Securities a greater number of Registrable Securities held by other
Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities in the same proportion used in
determining the underwriter limitation in this Section 1.5.
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If the underwriter has not limited the number of Registrable Securities to
be underwritten, the Company may include securities for its own account (or for
the account of other securityholders) in such registration if the underwriter so
agrees and if the number of Registrable Securities that would otherwise have
been included in such registration and underwriting will not thereby be limited.
1.6 COMPANY REGISTRATION.
(a) If, at any time or from time to time, the Company shall determine to
register any of its securities, either for its own account or the account of a
securityholder or holders exercising their respective demand registration
rights, other than a registration relating solely to employee benefit plans on
Form S-8 or similar forms which may be promulgated in the future or a
registration on Form S-4 or similar forms which may be promulgated in the future
relating solely to a Securities and Exchange Commission Rule 145 or similar
transaction the Company will (i) promptly give to each Holder written notice
thereof and (ii) include in such registration (and any related qualification
under Blue Sky laws or other compliance), and in any underwriting involved
therein, all Registrable Securities of such Holders as specified in a written
request or requests made within fifteen (15) days after receipt of such written
notice from the Company.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
indicate in the notice given pursuant to Section 1.6(a). In such event the right
of any Holder to registration pursuant to this Section 1.6 shall be conditioned
upon such Holder's agreeing to participate in such underwriting and to the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the other Holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company or by other holders exercising any
demand registration rights. Notwithstanding any other provision of this Section
1.6, if the underwriter determines that marketing factors require a limitation
of the number of shares to be underwritten, the underwriter may exclude some or
all Registrable Securities or other securities from such registration and
underwriting (hereinafter an "Underwriter Cutback"); provided, however, that if
such underwriting relates to any registration statement other than a
registration statement being filed with respect to the first registration
statement filed by the Company covering an underwritten offering of any of its
securities to the general public ("Initial Public Offering") in which no
secondary shares are included, then (i) in no event shall the aggregate number
of shares of Registrable Securities included in such underwriting be reduced
below thirty (30%) of the total number of shares proposed to be included in such
underwriting. In the event of an Underwriter Cutback, the Company shall so
advise all Holders and the other holders distributing their securities through
such underwriting, and the number of Registrable Securities and other securities
that may be included in the registration and underwriting shall be allocated
among all holders thereof (other than those holders who are exercising their
demand registration
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rights) on the basis that the holders who are not Holders shall be cut back
before any cutback of Holders. If the limitation determined by the underwriter
requires an Underwriter Cutback, such Underwriter Cutback shall be in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the underwriter. Any securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
1.7 FORM S-3 REGISTRATION RIGHTS. After the Initial Public Offering,
the Company shall use its best efforts to qualify for registration on Form S-3,
and to that end the Company shall use its best efforts to comply with the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), within twelve (12) months following the effective date of the
first registration of any securities of the Company for an underwritten
registered public offering. After the Company has qualified for the use of Form
S-3, and subject to the provisions of Section 1.14, each Holder shall have the
right to request registrations on Form S-3 (such requests shall be in writing
and shall state the number of shares of Registrable Securities to be disposed of
and the intended method of disposition of such shares by each such Holder),
subject only to the following limitations:
(a) The Company shall not be obligated to cause a registration on Form
S-3 to become effective prior to one hundred eighty (180) days following the
effective date of a Company initiated registration (other than a registration
relating solely to employee benefit plans on Form S-8 or similar forms which may
be promulgated in the future or a registration on Form S-4 or similar forms
which may be promulgated in the future relating solely to a Securities and
Exchange Commission Rule 145 or similar transaction the Company);
(b) The Company shall not be required to effect a registration pursuant
to this Section 1.7 unless the Holder or Holders requesting such a registration
propose to dispose of shares of Registrable Securities having an aggregate
disposition price (before deduction of underwriting discounts and expenses of
sale) of at least $500,000;
(c) The Company shall not be required to effect a registration pursuant
to this Section 1.7 if the Company shall furnish to the requesting 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 or its stockholders for the registration statement to
be filed at the date filing would be required, in which case the Company shall
have an additional period of not more than one hundred twenty (120) days within
which to file such registration statement; PROVIDED HOWEVER, that the Company
shall not use this right more than once in any 12-month period;
(d) The Company shall not be required to maintain and keep any such
registration on Form S-3 effective for a period exceeding one hundred twenty
(120) days from the effective date thereof;
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(e) The Company shall not be obligated to cause a registration on Form
S-3 if in the prior six-month period the Company has caused a registration on
Form S-3 to become effective; and
(f) The Company shall be obligated to effect not more than two
registrations per year pursuant to this Section 1.7 for which holders of
Registrable Securities request such registration.
The Company shall give notice to all Holders of the receipt of a request
for registration pursuant to this Section 1.7 and shall use its best efforts to
cause all Registrable Securities that such Holders have requested, within
fifteen (15) days after receipt of such written notice, be registered in
accordance with this Section 1.7 to be registered under the Securities Act.
Subject to the foregoing, the Company will use its best efforts to effect
promptly any registration pursuant to this Section 1.7. The provisions of
Section 1.5(b) shall apply to any registration effected pursuant to this Section
1.7
1.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 1.5, 1.6 and 1.7 (exclusive of Selling Expenses but inclusive of the
reasonable fees and expenses of one special counsel to the selling Holders)
shall be borne by the Company. Notwithstanding anything to the contrary herein,
the Company shall not be required to pay for any expenses of any registration
proceeding under Section 1.5 if the registration request is subsequently
withdrawn at the request of the Holders of a majority of the Registrable
Securities to have been registered, unless such Holders agree to forfeit their
right to a demand registration pursuant to Section 1.5 (in which event such
right shall be forfeited by all Holders). In the absence of such an agreement
to forfeit, the Holders of Registrable Securities to have been registered shall
bear all such expenses pro rata on the basis of the Registrable Securities to
have been registered. Notwithstanding the foregoing, however, if at the time of
the withdrawal, the Holders have learned of a material adverse change in the
condition, business or prospects of the Company from that known to the Holders
at the time of their request, of which the Company had knowledge at the time of
the request, then the Holders shall not be required to pay any of said expenses
and shall retain their rights pursuant to Section 1.5.
1.9 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance effective for a
period of one hundred twenty (120) days or until the Holder or Holders have
completed the distribution described in the registration statement relating
thereto, whichever first occurs;
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration
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statement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them;
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
(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 participating
in such underwriting shall also enter into and perform its obligations under
such an agreement; and
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
Notwithstanding any provision to the contrary in this Agreement, the
Company shall not be required in connection with any registration pursuant to
Sections 1.5, 1.6 or 1.7 to qualify shares in any state or jurisdiction which
requires the Company to qualify to do business or to file a general consent to
service of process.
1.10 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and will promptly reimburse each such Holder, each of its
officers and directors and partners, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred (as and when incurred) in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and partners and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof) including any of the foregoing incurred in
settlement of any litigation commenced or threatened, arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, or any violation by the Company of any
rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification, or compliance,
and will promptly reimburse the Company, such Holders, such directors,
officer's, partners, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred (as and when incurred) in connection with
investigation, preparing or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by an instrument
duty executed by such Holder and stated to be specifically for use therein,
provided, however, that the obligations of each such Holder hereunder shall be
limited to an amount equal to the proceeds to each such Holder of Registrable
Securities sold as contemplated herein.
-10-
(c) Each party entitled to indemnification under this Section 1.10 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at its own
expense, and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 1 unless such failure resulted in actual
detriment to the Indemnifying Party. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party a release from all liability in respect of
such claim or litigation.
(d) If the indemnification provided for in this Section 1.10 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) The obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1 and otherwise.
1.11 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Section 1.
1.12 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the
-11
Restricted Securities to the public without registration, after such time as a
public market exists for the Common Stock of the Company, the Company agrees to:
(a) Use its best efforts to make and keep public information available,
as those terms are understood and defined in Rule 144 under the Securities Act
at all times after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(b) Use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Exchange Act at any time after it has become subject to such reporting
requirements,
(c) So long as a Stockholder owns any Restricted Securities, to furnish
to the Stockholder forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 (at any time
after 90 days after the effective date of the first registration statement filed
by the Company for an offering of its securities to the general public) and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), a copy of the most recent annual report of the
Company, and such other reports and documents of the Company as a Stockholder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing a Stockholder to sell any such securities without
registration.
1.13 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted under Sections 1.5, 1.6 and 1.7 may be assigned or
otherwise conveyed to a transferee or assignee of Registrable Securities, who
shall be considered a "Holder," and the transferred shares shall be considered
"Registrable Securities," for purposes of this Section 1, provided that (i) said
transferee acquires (or, together with affiliates (as defined under the
Securities Act) ("Affiliates") of said transferee, after the acquisition then
beneficially owns) at least 250,000 shares of the Registrable Securities
(including shares of Series A Preferred, Series B Preferred and Series C
Preferred prior to conversion into Registrable Securities) and (ii) the Company
is given written notice by such Holder at the time of or within a reasonable
time (but not more than thirty (30) days) after said transfer, stating the name
and address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being assigned, subject to said
transferee's agreement to be bound by and comply with the provisions of this
Section 1.
1.14 TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to this Section 1 shall terminate (i) upon the seventh anniversary of
the effective date of the first registration statement filed by the Company
covering the Initial Public Offering or (ii) if earlier, as to any individual
Holder, at such time after the Company's Initial Public Offering as all
Registrable Securities (including shares of Series A Preferred, Series B
Preferred and Series C Preferred prior to conversion into Registrable
Securities) held by such Holder (together with shares of any other holder whose
sales of Registrable Securities must be aggregated with sales of Holder pursuant
to Rule 144(e)) can be sold within any
-12-
three-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144 (including Rule 144(k)) promulgated
thereunder.
1.15 "MARKET STAND OFF" AGREEMENT. Each 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) such agreement shall not exceed 180 days for the first
such registration statement of the Company which covers Common Stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
(b) such agreement shall not exceed 90 days for any
subsequent registration statement of the Company which covers Common Stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering; and
(c) all executive officers and directors of the Company and
all other persons with registration rights under this Agreement or any other
agreement enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Investor (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 1.15 shall not apply to a
registration relating solely to employee benefit plans on Form S-8 or similar
forms which may be promulgated in the future, or a registration relating solely
to a SEC Rule 145 transaction on Form S-4 or similar forms which may be
promulgated in the future.
SECTION 2.
AFFIRMATIVE COVENANTS OF THE COMPANY AND STOCKHOLDERS
2.1 FINANCIAL INFORMATION. Subject to Section 2.3, the Company will
furnish the following reports to the Stockholders for so long as the
Stockholders are holders of any Series A Preferred, Series B Preferred, Series C
Preferred or Registrable Securities:
(a) As soon as practicable after the end of each fiscal year, and in any
event within 90 days thereafter, audited consolidated balance sheets of the
Company and its
-13-
subsidiaries, if any, as of the end of such fiscal year, and consolidated
statements of income and surplus and consolidated statements of changes in
financial position of the Company and its subsidiaries, if any, for such year,
prepared in accordance with generally accepted accounting principles and setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and certified by independent public accountants of
recognized national standing selected by the Company;
(b) Each month, an unaudited consolidated balance sheet of the Company
and its subsidiaries, if any, and consolidated statements of income and
consolidated statements of changes in financial condition of the Company and its
subsidiaries for such period, all in reasonable detail and signed, subject to
changes resulting from year-end audit adjustments, by the principal financial or
accounting officer of the Company;
(c) An annual operating budget for each coming year, delivered on or
before January 1 of each year; and
(d) Such other information relating to the financial condition,
business, prospects or corporate affairs of the Company as the investor may from
time to time request, provided, however, that the Company shall not be obligated
to provide information which it deems proprietary.
2.2 ASSIGNMENT OF RIGHTS TO FINANCIAL INFORMATION. The rights granted
pursuant to Section 2.1 may be assigned by the Stockholders (or by any permitted
transferee of any such rights) so long as (i) the Company is given notice of any
such assignment within a reasonable time after the date the same is effected,
(ii) the transferee shall have acquired (or, together with such transferee's
Affiliates, after the acquisition shall then beneficially own) at least 250,000
shares of Registrable Securities (including shares Series A Preferred, Series B
Preferred and Series C Preferred prior to conversion into Registrable
Securities) in a private transaction and (iii) the transferee is not engaged in
a business that is competitive with the Company.
2.3 INSPECTION RIGHTS.
(a) The Company will permit any Investor, so long as such Investor (or
its representative) owns at least 200,000 Shares, or such number of shares of
Common Stock issued upon conversion of 200,000 or more Shares, or any
combination thereof (as presently constituted and subject to subsequent
adjustment for stock splits, stock dividends, reverse stock splits,
recapitalizations and the like) (a "Significant Holder") (or a representative of
any Significant Holder) to visit and inspect any of the properties of the
Company, including its books of account and other records (and make copies
thereof and take extracts therefrom), and to discuss its affairs, finances and
accounts with the Company's officers and its independent public accountants, all
at such reasonable times and as often as any such person may reasonably request.
-14-
(b) The provisions of Section 2.2 and this Section 2.3 shall not be in
limitation of any rights which any Holder or Significant Holder may have with
respect to the books and records of the Company and its subsidiaries, or to
inspect their properties or discuss their affairs, finances and accounts, under
the laws of the jurisdictions in which they are incorporated.
2.4 ATTENDANCE AT BOARD MEETINGS. So long as Xxxxxx City Partners
("Xxxxxx") owns at least an aggregate of 1,000,000 shares of Series A Preferred,
and so long as Xxxxxx does not have a representative on the Board of Directors
of the Company, Xxxxxx shall receive from the Company notices of all meetings of
the Board of Directors, including without limitation telephonic meetings, and
Xxxxxx shall receive, with such limitations provided herein, any materials
distributed for such meeting, and may send one representative to such meetings,
PROVIDED, HOWEVER, that the Company may require as a condition precedent that
such representative proposing to attend any meeting of the Board of Directors
shall agree to hold in confidence and trust and to act in a fiduciary manner
with respect to all information so received during such meetings and may require
that such representative sign a confidentiality agreement with the Company; and,
PROVIDED, FURTHER, that the Company reserves the right not to provide
information and to exclude such representative from any meeting or portion
thereof if attendance at such meeting by such representative or dissemination of
any information at such meeting to such representative would, in the good faith
judgment of the Board of Directors, result in disclosure of trade secrets to
such representative, would compromise or adversely affect the attorney-client
privilege between the Company and its counsel, or would, in the good faith
judgment of the Board of Directors, result in a conflict of interest situation.
If such representative in his or her good faith judgment believes that an item
to be discussed by the Board of Directors would result in any conflict of
interest, such representative shall promptly bring such conflict to the
attention of the Chairman of the Board. In no event shall any provision of this
paragraph waive any obligation of confidentiality to the Company owed by any
such representative or Xxxxxx.
2.5 TERMINATION OF COVENANTS. The covenants set forth in Section 2.1,
Section 2.3 and Section 2.4 shall terminate and be of no further force or effect
after the closing date of the Initial Public Offering.
2.6 CONFIDENTIAL INFORMATION, ETC. Each Stockholder agrees that all
information received by it pursuant to this Section 2, and any other information
relating to the Company's technology, processes or formulas that is disclosed by
the Company to any Stockholder in writing and is marked "Confidential," shall be
considered confidential information. Each Stockholder further agrees that it
shall hold all such confidential information in confidence and shall not
disclose any such confidential information to any third party other than its
counsel or accountants nor shall such Stockholder use such confidential
information for any purpose other than evaluation of such Stockholder's
investment in the Company; provided, however, that the foregoing obligation to
hold in confidence and not to disclose confidential information shall not apply
to any such
-15-
information that (a) was known to the public prior to disclosure by the Company,
(b) becomes known to the public through no fault of such Stockholder, (c) is
disclosed to such Stockholder on a non-confidential basis by a third party
having a legal right to make such disclosure or (d) is independently developed
by such Stockholder.
SECTION 3.
RIGHTS OF FIRST REFUSAL
3.1 RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES.
(a) The Company hereby grants to each Stockholder the right of first
refusal to purchase its Pro Rata Share (defined below) of all (or any part) of
New Securities (defined below) that the Company may from time to time propose to
sell and issue. Such Stockholder's "Pro Rata Share," for purposes of this
Section 3, is the ratio of the number of shares of Common Stock (assuming
conversion of all shares of Series A Preferred, Series B Preferred and Series C
Preferred) then held by such Stockholder to the total number of shares of Common
Stock then outstanding (assuming conversion of all shares of Series A Preferred,
Series B Preferred and Series C Preferred). This right of first refusal shall
be subject to the following provisions:
(b) "New Securities" shall mean any Common Stock or Preferred Stock of
the Company, whether now authorized or not, and rights, options, or warrants to
purchase said Common Stock or Preferred Stock, and securities of any type
whatsoever that are, or may become, convertible into or exchangeable for said
Common Stock or Preferred Stock; provided, however, that "New Securities" does
not include (i) securities issuable upon conversion of or with respect to Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred or any future
series of preferred stock; (ii) shares of the Company's Common Stock (or related
options) issued to officers, directors, employees of and/or consultants to the
Company pursuant to plans or agreements as approved by the Company's Board of
Directors; (iii) shares of the Company's Common Stock or Preferred Stock issued
in connection with any stock split, stock dividend, or recapitalization by the
Company; (iv) securities issued in connection with any equipment leasing,
technology licensing, corporate partnering, strategic alliance, acquisition,
merger, purchase of assets or similar transaction as approved by the Company's
Board of Directors; and (v) shares of the Company's Common Stock issued or
issuable as a result of any antidilution adjustment provided for in the
Company's Certificate of Incorporation as in effect at the time of such
issuance.
(c) In the event that the Company proposes to undertake an issuance of
New Securities, it shall give each Stockholder written notice of its intention,
describing the type of New Securities, the price and the general terms upon
which the Company proposes to issue the same. Each Stockholder shall have
twenty (20) business days from the date of receipt of any such notice to agree
to purchase some or all of his Pro Rata Share of such New Securities for the
price and upon the general terms specified in the notice by giving
-16-
written notice to the Company and stating therein the quantity of New Securities
to be purchased. Each Stockholder shall have a right of over-allotment such
that if any Stockholder fails to exercise his right hereunder to purchase his
Pro Rata Share of New Securities, the other Stockholders may purchase the
non-purchasing Stockholder's portion on a pro rata basis, within fifteen (15)
business days from the date such non-purchasing Stockholder fails to exercise
his right hereunder to purchase his Pro Rata Share of New Securities.
(d) In the event that the Stockholders fail to exercise in full the
right of first refusal within said twenty (20) plus fifteen (15) business day
period, the Company shall have one hundred twenty (120) days thereafter to sell
(or enter into an agreement pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within one hundred twenty (120) days from
the date of said agreement) the New Securities respecting which the
Stockholders' rights were not exercised, at a price and upon general terms no
more favorable to the purchasers thereof than specified in the Company's notice.
In the event the Company has not sold the New Securities within said one hundred
twenty (120) day period (or sold and issued New Securities in accordance with
the foregoing within one hundred twenty (120) days from the date of said
agreement), the Company shall not thereafter issue or sell any New Securities,
without first offering such securities to the Stockholders in the manner
provided above.
(e) The right of first refusal granted under this Section 3. 1 shall not
apply to and shall expire upon the closing of the Company's Initial Public
Offering.
(f) The rights granted pursuant to this Section 3.1 may be assigned by
the Stockholders (or by any permitted transferee of any such rights) so long as
(i) the Company is given notice of any such assignment within a reasonable time
after the date the same is effected and (ii) the transferee shall have acquired
(or, together with such transferee's Affiliates, after the acquisition shall
then beneficially own) at least 250,000 shares of Registrable Securities
(including shares of Series A Preferred, Series B Preferred and Series C
Preferred prior to conversion into Registrable Securities) in a private
transaction.
SECTION 4.
MISCELLANEOUS
4.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware as applicable to contracts entered into and performed entirely
within the State of Delaware by Delaware residents.
4.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
-17-
4.3 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
4.4 NOTICES. ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by facsimile or by
registered or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, addressed (a) if to the Stockholders, to such Stockholders'
addresses set forth on the Schedule of Stockholders or to such other address as
such Stockholders shall have furnished to the Company in writing, (b) if to any
other holder of Registrable Securities, at such address as such holder shall
have furnished the Company in writing, or (c) if to the Company, to its address
set forth above and addressed to the attention of the President or at such other
addresses as the Company shall have furnished to the Stockholders. All notices
and other communications pursuant to the provisions of this Section 4.4 shall be
deemed delivered when mailed or sent by facsimile.
4.5 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be enforceable against the party actually executing such
counterpart, and which together shall constitute one instrument.
4.6 SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
4.7 SEPARABILITY. Any invalidity, illegality, or limitation of the
enforceability with respect to any Stockholder of any one or more of the
provisions of this Agreement, or any part thereof, whether arising by reason of
the law of any such Stockholder's domicile or otherwise, shall in no way affect
or impair the validity, legality, or enforceability of this Agreement with
respect to other Stockholder.
4.8 APPROVAL OF AMENDMENTS AND WAIVERS. Any term of this agreement may
be amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with the written consent of (i) the Company and (ii) the holders
of at least a majority of the then outstanding shares of Registrable Securities,
excluding from the determination of such a majority in clause (ii) (both in
determining the total number of such shares outstanding and the number of such
shares consenting or not consenting) all shares previously disposed of by such
holders pursuant to one or more registration statements under the Securities Act
or pursuant to Rule 144. Any amendment, termination or waiver effected in
accordance with this section shall be binding upon the Stockholders, each of
their transferees and the Company. Each Stockholder acknowledges that by the
operation of this Section the holders of a majority of the outstanding
Registrable Securities as aforesaid may have the right and power to diminish or
eliminate all rights of such Stockholders under this Agreement.
-18-
4.9 AMENDMENT OF PRIOR AGREEMENT. This Agreement constitutes an
amendment of the Prior Agreement and is cast in the form of an amendment and
restatement solely for the ease of the parties hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-19-
The foregoing Restated Investors' Rights Agreement is hereby executed as of the
date first above written.
THE COMPANY:
VISTA MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxx
----------------------------------------
Title:President
---------------------------------------
Address: 0000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxx, XX 00000
THE STOCKHOLDERS:
XXXXXX CITY PARTNERS
By:X. X. Xxxxx
------------------------------------------
Title:General Partner
---------------------------------------
Address: 000 Xxxxx Xxxx, Xxx. 000
Xxxxxx Xxxx, XX 00000
ONE LIBERTY FUND III, L.P.
By:/s/ X. X. Xxxxxxx
------------------------------------------
Title:
---------------------------------------
Address: 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
GILDE INTERNATIONAL, B.V.
By:/s/ X. X. Xxxxxxx
------------------------------------------
Title:
---------------------------------------
Address: 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
DOMAIN PARTNERS III, L.P.
By: One Xxxxxx Square Associates III, L.P.
By:/s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------------
Title:General Partner
---------------------------------------
Address: Xxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
BIOTECHNOLOGY INVESTMENTS LIMITED
By: Old Court Limited
By:/s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------------
Title:Attorney - In - Fact
---------------------------------------
Address: St. Julian's Court
St. Xxxxx Port
Guernsey, Channel Islands
[SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
D.P. III ASSOCIATES, L.P.
By: One Xxxxxx Square Associates III, L.P.
By:/s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------------
Title:General Partner
---------------------------------------
Address: Xxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
SBIC PARTNERS, L.P.
By: Xxxxxxx Xxxxxxx & Xxxxx X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx
Venture Co., General Partner
By:/s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Title:President
---------------------------------------
By: SL-SBIC Partners, L.P.,
General Partner
By: FW-SBIC, Inc.,
General Partner
By:/s/ illegible
-----------------------------------------
Title:
--------------------------------------
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
KOICHIRO HIRO
/s/ Koichiro Hiro
---------------------------------------------
Address: c/o Oktas
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
MEDTRONIC ASSET MANAGEMENT, INC.
---------------------------------------------
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
---------------------------------------
Address: 0000 Xxxxxxx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
EXHIBIT A
SCHEDULE OF STOCKHOLDERS
STOCKHOLDERS
XXXXXX CITY PARTNERS
000 Xxxxx Xxxx, Xxx. 000
Xxxxxx Xxxx, XX 00000
Attention: Xx. X.X. Xxxxx
ONE LIBERTY FUND III
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxx
GILDE INTERNATIONAL B.V.
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxx
B. U. N. P.
c/o Community Technology Fund
Boston University Ventures
000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
DOMAIN PARTNERS III, L.P.
Xxx Xxxxxx Xxxxxx. Xxx. 000
Xxxxxxxxx. XX 00000
Attention: Xxxxx X. Xxxxx. Ph.D.
BIOTECHNOLOGY INVESTMENTS LIMITED
St. Julian's Court
St. Xxxxx Xxx
Guernsey. Channel Islands
with copy to:
c/o Domain Associates
Xxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx. Ph.D.
A-1
DP III ASSOCIATES, L.P.
Xxx Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Ph.D
SBIC PARTNERS. L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
XXXXXXXX XXXX
c/o Oktas
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
DELAWARE CHARTER GUARANTEE &
TRUST TTEE FBO XXXXX X. BRIEFS
0000 Xxxx Xxxx Xxxx 0-000
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
with copy to:
c/o Oktas
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Briefs
PIONEER CAPITAL CORPORATION
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
ACCEL III, L.P.
0 Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
ACCEL JAPAN, L.P.
0 Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
ACCEL '91
0 Xxxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
A-2
OAK INVESTMENT PARTNERS V, L.P.
0 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
OAK V AFFILIATES FUND, L.P.
0 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
XXXXX X. XXXXXXX
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
XXXX XXXXXXXXX
00000 Xxx xxx Xxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXX XXXXXX XXXXXXX TRUST U/A DTD 7-11-88
X.X. Xxx 0000
Xx Xxxxx, XX 00000
XXXXXX XXXXX, M.D.
0000 X. X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
NATIONAL CITY BANK AS CUSTODIAN
CARDIAC SURGICAL FBO XX. XXXXXXX X.
XXXXXXXX, XX
000 Xxxxxxxx Xxxx, XXX-0
Xxxxxxxxxxx, XX 00000
GUARANTEE & TRUST CO., TRUSTEE
FBO XXXXXXX X. XXXXXXX, M.D.
P. O. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
XXXXXXXX X. XXXXX, M.D.
0000 Xxxxxxxxx Xxx
Xxxxxx Xxxx, XX 00000
SELECTED MEDICAL ENTERPRISES
0000 Xxxx Xxx
Xxxxxx, XX 00000
A-3
PROMEDICA INTERNATIONAL, INC.
000 Xxxxxxx Xxxxxx Xxxxx, #000
Xxxxxxx Xxxxx, XX 00000
MEDTRONIC ASSET MANAGEMENT, INC.
0000 Xxxxxxx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
A-4
