AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT KIOR, INC.
TABLE OF CONTENTS
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1. Definitions |
1 | |||
2. Registration Rights |
4 | |||
2.1 Demand Registration |
4 | |||
2.2 Company Registration |
6 | |||
2.3 Underwriting Requirements |
6 | |||
2.4 Obligations of the Company |
7 | |||
2.5 Furnish Information |
9 | |||
2.6 Expenses of Registration |
9 | |||
2.7 Delay of Registration |
9 | |||
2.8 Indemnification |
9 | |||
2.9 Reports Under Exchange Act |
12 | |||
2.10 Limitations on Subsequent Registration Rights |
12 | |||
2.11 “Market Stand-off” Agreement |
12 | |||
2.12 Restrictions on Transfer |
13 | |||
2.13 Termination of Registration Rights |
15 | |||
3. Information Rights |
15 | |||
3.1 Delivery of Financial Statements |
15 | |||
3.2 Inspection |
16 | |||
3.3 Termination of Information Rights |
16 | |||
3.4 Confidentiality |
16 | |||
4. Rights to Future Stock Issuances |
17 | |||
4.1 Right of First Offer |
17 | |||
4.2 Directed IPO Shares |
18 | |||
4.3 Termination |
18 | |||
5. Additional Covenants |
18 | |||
5.1 Insurance |
18 | |||
5.2 Employee Agreements |
19 | |||
5.3 Employee Stock |
19 | |||
5.4 Board Matters |
19 | |||
5.5 Successor Indemnification |
19 | |||
5.6 Termination of Covenants |
19 | |||
6. Miscellaneous |
19 | |||
6.1 Successors and Assigns |
19 | |||
6.2 Governing Law |
20 | |||
6.3 Counterparts; Facsimile |
20 | |||
6.4 Titles and Subtitles |
20 | |||
6.5 Notices |
20 | |||
6.6 Amendments and Waivers |
21 | |||
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6.7 Severability |
21 | |||
6.8 Aggregation of Stock |
22 | |||
6.9 Additional Investors |
22 | |||
6.10 Entire Agreement |
22 | |||
6.11 Delays or Omissions |
22 | |||
6.12 Acknowledgment |
22 | |||
Schedule A — Schedule of Investors |
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Schedule B — Schedule of Key Holders |
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AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT is made as of the 21 day of April, 2011,
by and among Kior, Inc., a Delaware corporation (the “Company”), each of the investors listed on
Schedule A hereto, each of which is referred to in this Agreement as an “Investor,” and
each of the stockholders listed on Schedule B hereto, each of whom is referred to herein as
a “Key Holder.”
RECITALS
WHEREAS, the Company and certain of the Investors are parties to the Series C Preferred Stock
Purchase Agreement of even date herewith (the “Purchase Agreement”);
WHEREAS, the Company and certain of the Investors are parties to that certain Amended and
Restated Investors’ Rights Agreement dated April 16, 2010, as amended by the certain Amendment to
the Amended and Restated Investors’ Rights Agreement, dated July 19, 2010 (the “Prior Agreement”);
and
WHEREAS, the parties to the Prior Agreement desire to amend and restate the Prior Agreement in
its entirety and accept the rights and covenants hereto in lieu of their rights and covenants under
the Prior Agreement.
NOW, THEREFORE, in consideration of these premises and for other good and valid consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 “Affiliate” means, with respect to any specified Person, any other Person who, directly or
indirectly, controls, is controlled by, or is under common control with such Person, including
without limitation any general partner, managing member, officer or director of such Person or any
venture capital fund now or hereafter existing that is controlled by one or more general partners
or managing members of, or shares the same management company with, such Person.
1.2 “Common Stock” means collectively, shares of the Company’s common stock, par value $0.0001
per share and shares of the Company’s Class A common stock, par value $0.0001 per share.
1.3 “Damages” means any loss, damage, or liability (joint or several) to which a party hereto
may become subject under the Securities Act, the Exchange Act, or other federal or state law,
insofar as such loss, damage, or liability (or any action in respect thereof) arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any
registration statement of the Company, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to make the statements
therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or
any of its agents or Affiliates) of the Securities Act, the
Exchange Act, any state securities law, or any rule or regulation promulgated under the
Securities Act, the Exchange Act, or any state securities law.
1.4 “Derivative Securities” means any securities or rights convertible into, or exercisable or
exchangeable for (in each case, directly or indirectly), Common Stock, including options and
warrants.
1.5 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
1.6 “Excluded Registration” means (i) a registration relating to the sale of securities to
employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar
plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form
that does not include substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities; or (iv) a registration in
which the only Common Stock being registered is Common Stock issuable upon conversion of debt
securities that are also being registered.
1.7 “Form S-1” means such form under the Securities Act as in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted by the SEC.
1.8 “Form S-3” means such form under the Securities Act as in effect on the date hereof or any
registration form under the Securities Act subsequently adopted by the SEC that permits
incorporation of substantial information by reference to other documents filed by the Company with
the SEC.
1.9 “GAAP” means generally accepted accounting principles in the United States.
1.10 “Holder” means any holder of Registrable Securities who is a party to this Agreement.
1.11 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, of a natural person referred to
herein.
1.12 “Initiating Holders” means, collectively, Holders who properly initiate a registration
request under this Agreement.
1.13 “IPO” means the Company’s first underwritten public offering of its Common Stock under
the Securities Act.
1.14 “Lighthouse Warrants” means (i) that certain Preferred Stock Purchase Warrant, issued by
the Company on December 30, 2008 to Lighthouse Capital Partners VI, L.P., (ii) that certain
Preferred Stock Purchase Warrant, issued by the Company on January 27, 2010 to
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Lighthouse Capital Partners VI, L.P, and (iii) that certain Preferred Stock Purchase Warrant,
issued by the Company on April 16, 2010 to Lighthouse Capital Partners Vi, L.P.
1.15 “Leader Warrant” means that certain Preferred Stock Purchase Warrant, issued by the
Company on January 27, 2010 to Leader Equity, LLC.
1.16 “Major Investor” means (i) any Investor that, individually or together with such
Investor’s Affiliates, holds at least 500,000 shares of Registrable Securities (as adjusted for
stock splits, stock dividends, recapitalizations or the like after the date hereof) or (ii) any
Investor that, individually or together with such Investor’s Affiliates, continues to hold at least
thirty percent (30%) of the Series C Preferred Stock purchased by such Investor (together with its
Affiliates) pursuant to the Purchase Agreement.
1.17 “New Securities” means, collectively, equity securities of the Company, whether or not
currently authorized, as well as rights, options, or warrants to purchase such equity securities,
or securities of any type whatsoever that are, or may become, convertible or exchangeable into or
exercisable for such equity securities.
1.18 “Person” means any individual, corporation, partnership, trust, limited liability
company, association or other entity.
1.19 “Preferred Stock” means collectively Series A Preferred Stock, Series A-1 Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock.
1.20 “Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of
the Preferred Stock; (ii) any Common Stock, or any Common Stock issued or issuable (directly or
indirectly) upon conversion and/or exercise of any other securities of the Company, acquired by the
Investors after the date hereof or upon the exercise, in whole or in part, of the Lighthouse
Warrants or the Leader Warrant in accordance with their terms; and (iii) any Common Stock issued as
(or issuable upon the conversion or exercise of any warrant, right, or other security that is
issued as) a dividend or other distribution with respect to, or in exchange for or in replacement
of, the shares referenced in clauses (i) and (ii) above; excluding in all cases, however,
any Registrable Securities sold by a Person in a transaction in which the applicable rights under
this Agreement are not assigned pursuant to Section 6.1, and excluding for purposes of
Section 2 any shares for which registration rights have terminated pursuant to Section
2.13 of this Agreement.
1.21 “Registrable Securities then outstanding” means the number of shares determined by adding
the number of shares of outstanding Common Stock that are Registrable Securities and the number of
shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or
convertible securities that are Registrable Securities.
1.22 “Restricted Securities” means the securities of the Company required to bear the legend
set forth in Section 2.12(b) hereof.
1.23 “SEC” means the Securities and Exchange Commission.
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1.24 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
1.25 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.
1.26 “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
1.27 “Selling Expenses” means all underwriting discounts, selling commissions, and stock
transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of
counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne
and paid by the Company as provided in Section 2.6.
1.28 “Series A Director” means any director of the Company that the holders of record of the
Series A Preferred Stock and Series A-1 Preferred Stock are entitled to elect pursuant to the
Company’s Certificate of Incorporation.
1.29 “Series A Preferred Stock” means shares of the Company’s Series A Preferred Stock, par
value $0.0001 per share.
1.30 “Series A-1 Preferred Stock” means shares of the Company’s Series A-1 Preferred Stock,
par value $0.0001 per share.
1.31 “Series B Preferred Stock” means shares of the Company’s Series B Preferred Stock, par
value $0.0001 per share.
1.32 “Series C Preferred Stock” means shares of the Company’s Series C Preferred Stock, par
value $0.0001 per share.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Demand Registration.
(a) Form S-1 Demand. If at any time after the earlier of (i) three (3) years after
the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the
registration statement for the IPO, the Company receives a request from Holders of at least forty
percent (40%) of the Registrable Securities then outstanding that the Company file a Form S-1
registration statement with respect to at least thirty percent (30%) of the Registrable Securities
then outstanding and the anticipated aggregate offering price to the public would exceed
$20,000,000, then the Company shall (i) within ten (10) days after the date such request is given,
give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and
(ii) as soon as practicable, and in any event within sixty (60) days after the date such request is
given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act
covering all Registrable Securities that the Initiating Holders requested to be registered and any
additional Registrable Securities requested to be included in such registration by any other
Holders, as specified by notice given by each such Holder to the Company within
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twenty (20) days of the date the Demand Notice is given, and in each case, subject to the
limitations of Section 2.1(c) and Section 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3
registration statement, the Company receives a request from the Holders of the Registrable
Securities that the Company file a Form S-3 registration statement with respect to outstanding
Registrable Securities of such Holders having an anticipated aggregate offering price of at least
$10,000,000, then the Company shall (i) within ten (10) days after the date such request is given,
give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as
practicable, and in any event within forty-five (45) days after the date such request is given by
the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering
all Registrable Securities requested to be included in such registration by any other Holders, as
specified by notice given by each such Holder to the Company within twenty (20) days of the date
the Demand Notice is given, and in each case, subject to the limitations of Section 2.1(c)
and Section 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting
a registration pursuant to this Section 2.1 a certificate signed by the Company’s chief
executive officer stating that in the good faith judgment of the Company’s Board of Directors it
would be materially detrimental to the Company and its stockholders for such registration statement
to either become effective or remain effective for as long as such registration statement otherwise
would be required to remain effective, because such action would (i) materially interfere with a
significant acquisition, corporate reorganization, or other similar transaction involving the
Company; (ii) require premature disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential; or (iii) render the Company unable to comply with
requirements under the Securities Act or Exchange Act, then the Company shall have the right to
defer taking action with respect to such filing, and any time periods with respect to filing or
effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60)
days after the request of the Initiating Holders is given; provided, however, that
the Company may not invoke this right more than once in any twelve (12) month period; and
provided further that the Company shall not register any securities for its own
account or that of any other stockholder during such sixty (60) day period other than pursuant to a
registration relating to the sale of securities to employees of the Company or a subsidiary
pursuant to a stock option, stock purchase, or similar plan.
(d) The Company shall not be obligated to effect, or to take any action to effect, any
registration pursuant to Section 2.1(a) (i) during the period that is sixty (60) days
before the Company’s good faith estimate of the date of filing of, and ending on a date that is one
hundred eighty (180) days after the effective date of, a Company-initiated registration,
provided, that the Company is actively employing in good faith commercially reasonable
efforts to cause such registration statement to become effective; (ii) after the Company has
effected two registrations pursuant to Section 2.1(a); or (iii) if the Initiating Holders
propose to dispose of shares of Registrable Securities that may be immediately registered on Form
S-3 pursuant to a request made pursuant to Section 2.1(b). The Company shall not be
obligated to effect, or to take any action to effect, any registration pursuant to Section
2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate
of the date of filing of, and ending on a date that is ninety (90) days after the effective date
of, a Company-initiated registration,
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provided, that the Company is actively employing in good faith commercially reasonable efforts to
cause such registration statement to become effective; or (ii) if the Company has effected two
registrations pursuant to Section 2.1(b) within the twelve (12) month period immediately
preceding the date of such request. A registration shall not be counted as “effected” for purposes
of this Section 2.1(d) until such time as the applicable registration statement has been
declared effective by the SEC, unless the Initiating Holders withdraw their request for such
registration, elect not to pay the registration expenses therefor, and forfeit their right to one
demand registration statement pursuant to Section 2.6, in which case such withdrawn
registration statement shall be counted as “effected” for purposes of this Section
2.1(d).
2.2 Company Registration. If the Company proposes to register (including, for this
purpose, a registration effected by the Company for stockholders other than the Holders) any of its
securities under the Securities Act in connection with the public offering of such securities
solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly
give each Holder notice of such registration. Upon the request of each Holder given within twenty
(20) days after such notice is given by the Company, the Company shall, subject to the provisions
of Section 2.3, cause to be registered all of the Registrable Securities that each such
Holder has requested to be included in such registration. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 2.2 before the
effective date of such registration, whether or not any Holder has elected to include Registrable
Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn
registration shall be borne by the Company in accordance with Section 2.6.
2.3 Underwriting Requirements.
(a) If, pursuant to Section 2.1, the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting, they shall so advise
the Company as a part of their request made pursuant to Section 2.1, and the Company shall
include such information in the Demand Notice. The underwriter(s) will be selected by the Company,
subject only to the reasonable approval of the Initiating Hodlders. In such event, the right of
any Holder to include such Holder’s Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall (together with the Company
as provided in Section 2.4(e)) enter into an underwriting agreement in customary form with
the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this
Section 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing
that marketing factors require a limitation on the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be
underwritten pursuant hereto, and the number of Registrable Securities that may be included in the
underwriting shall be allocated among such Holders of Registrable Securities, including the
Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable
Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all
such selling Holders; provided, however, that the number of Registrable Securities
held by the Holders to be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting.
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(b) In connection with any offering involving an underwriting of shares of the Company’s
capital stock pursuant to Section 2.2, the Company shall not be required to include any of
the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the
underwriting as agreed upon between the Company and its underwriters, and then only in such
quantity as the underwriters in their sole discretion determine will not jeopardize the success of
the offering by the Company. If the total number of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the number of securities to be
sold (other than by the Company) that the underwriters in their reasonable discretion determine is
compatible with the success of the offering, then the Company shall be required to include in the
offering only that number of such securities, including Registrable Securities, which the
underwriters and the Company in their sole discretion determine will not jeopardize the success of
the offering. If the underwriters determine that less than all of the Registrable Securities
requested to be registered can be included in such offering, then the Registrable Securities that
are included in such offering shall be allocated among the selling Holders in proportion (as nearly
as practicable to) the number of Registrable Securities owned by each selling Holder or in such
other proportions as shall mutually be agreed to by all such selling Holders. Notwithstanding the
foregoing, in no event shall (i) the number of Registrable Securities included in the offering be
reduced unless all other securities (other than securities to be sold by the Company) are first
entirely excluded from the offering, or (ii) the number of Registrable Securities included in the
offering be reduced below twenty five percent (25%) of the total number of securities included in
such offering, unless such offering is the IPO, in which case the selling Holders may be excluded
further if the underwriters make the determination described above and no other stockholder’s
securities are included in such offering. For purposes of the provision in this Section
2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited
liability company, or corporation, the partners, members, retired partners, retired members,
stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any
such partners, retired partners, members, and retired members and any trusts for the benefit of any
of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata
reduction with respect to such “selling Holder” shall be based upon the aggregate number of
Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this
sentence.
(c) For purposes of Section 2.1, a registration shall not be counted as “effected” if,
as a result of an exercise of the underwriter’s cutback provisions in Section 2.3(a), fewer
than thirty percent (30%) of the total number of Registrable Securities that Holders have requested
to be included in such registration statement are actually included.
2.4 Obligations of the Company. Whenever required under this Section 2 to
effect the registration of any Registrable Securities, the Company shall, as expeditiously as
reasonably possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such registration statement to
become effective and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for a period of up to one hundred
twenty (120) days or, if earlier, until the distribution contemplated in the registration statement
has been completed; provided, however, that (i) such one hundred
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twenty (120) day period shall be extended for a period of time equal to the period the Holder
refrains, at the request of an underwriter of Common Stock (or other securities) of the Company,
from selling any securities included in such registration, and (ii) in the case of any registration
of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed
basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period
shall be extended for up to one hundred twenty (120) days, if necessary, to keep the registration
statement effective until all such Registrable Securities are sold;
(b) prepare and file with the SEC such amendments and supplements to such registration
statement, and the prospectus used in connection with such registration statement, as may be
necessary to comply with the Securities Act in order to enable the disposition of all securities
covered by such registration statement;
(c) furnish to the selling Holders such numbers of copies of a prospectus, including a
preliminary prospectus, as required by the Securities Act, and such other documents as the Holders
may reasonably request in order to facilitate their disposition of their Registrable Securities;
(d) use its commercially reasonable 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 selling Holders; provided that the Company
shall not be required to qualify to do business or to file a general consent to service of process
in any such states or jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(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 underwriter(s) of such
offering;
(f) use its commercially reasonable efforts to cause all such Registrable Securities covered
by such registration statement to be listed on a national securities exchange or trading system and
each securities exchange and trading system (if any) on which similar securities issued by the
Company are then listed;
(g) provide a transfer agent and registrar for all Registrable Securities registered pursuant
to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not
later than the effective date of such registration;
(h) promptly make available for inspection by the selling Holders, any managing underwriter(s)
participating in any disposition pursuant to such registration statement, and any attorney or
accountant or other agent retained by any such underwriter or selected by the selling Holders, all
financial and other records, pertinent corporate documents, and properties of the Company, and
cause the Company’s officers, directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney, accountant, or agent,
in each case, as necessary or advisable to verify the accuracy of the information in such
registration statement and to conduct appropriate due diligence in connection therewith;
8
(i) notify each selling Holder, promptly after the Company receives notice thereof, of the
time when such registration statement has been declared effective or a supplement to any prospectus
forming a part of such registration statement has been filed; and
(j) after such registration statement becomes effective, notify each selling Holder of any
request by the SEC that the Company amend or supplement such registration statement or prospectus.
2.5 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 2 with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method of disposition of
such securities as is reasonably required to effect the registration of such Holder’s Registrable
Securities.
2.6 Expenses of Registration. All expenses (other than Selling Expenses) incurred in
connection with registrations, filings, or qualifications pursuant to Section 2, including
all registration, filing, and qualification fees; printers’ and accounting fees; fees and
disbursements of counsel for the Company; and the reasonable fees and disbursements, not to exceed
$25,000, of one counsel for the selling Holders (“Selling Holder Counsel”), shall be borne and paid
by the Company; provided, however, that the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to Section 2.1 if the
registration request is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all selling Holders shall bear such expenses
pro rata based upon the number of Registrable Securities that were to be included in the withdrawn
registration), unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one registration pursuant to Section 2.1(a) or Section 2.1(b), as
the case may be; provided further that if, at the time of such withdrawal, the
Holders shall 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 and have withdrawn the
request with reasonable promptness after learning of such information then the Holders shall not be
required to pay any of such expenses and shall not forfeit their right to one registration pursuant
to Section 2.1(a) or Section 2.1(b). All Selling Expenses relating to Registrable
Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro
rata on the basis of the number of Registrable Securities registered on their behalf.
2.7 Delay of Registration. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any registration pursuant to this Agreement as the
result of any controversy that might arise with respect to the interpretation or implementation of
this Section 2.
2.8 Indemnification. If any Registrable Securities are included in a registration
statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling
Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal
counsel and accountants for each such Holder; any
9
underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act,
against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person,
or other aforementioned Person any legal or other expenses reasonably incurred thereby in
connection with investigating or defending any claim or proceeding from which Damages may result,
as such expenses are incurred; provided, however, that the indemnity agreement
contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such
claim or proceeding if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the
extent that they arise out of or are based upon actions or omissions made in reliance upon and in
conformity with written information furnished by or on behalf of any such Holder, underwriter,
controlling Person, or other aforementioned Person expressly for use in connection with such
registration.
(b) To the extent permitted by law, each selling Holder, severally and not jointly, will
indemnify and hold harmless the Company, and each of its directors, each of its officers who has
signed the registration statement, each Person (if any), who controls the Company within the
meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as
defined in the Securities Act), any other Holder selling securities in such registration statement,
and any controlling Person of any such underwriter or other Holder, against any Damages, in each
case only to the extent that such Damages arise out of or are based upon actions or omissions made
in reliance upon and in conformity with written information furnished by or on behalf of such
selling Holder expressly for use in connection with such registration; and each such selling Holder
will pay to the Company and each other aforementioned Person any legal or other expenses reasonably
incurred thereby in connection with investigating or defending any claim or proceeding from which
Damages may result, as such expenses are incurred; provided, however, that the
indemnity agreement contained in this Section 2.8(b) shall not apply to amounts paid in
settlement of any such claim or proceeding if such settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld; and provided further
that in no event shall the aggregate amounts payable by any Holder by way of indemnity or
contribution under Sections 2.8(b) and 2.8(d) exceed the proceeds from the offering
received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of
fraud or willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of
the commencement of any action (including any governmental action) for which a party may be
entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.8, give the indemnifying
party notice of the commencement thereof. The indemnifying party shall have the right to
participate in such action and, to the extent the indemnifying party so desires, participate
jointly with any other indemnifying party to which notice has been given, and to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however, that
an indemnified party (together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party represented by such
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counsel in such action. The failure to give notice to the indemnifying party within a reasonable
time of the commencement of any such action shall relieve such indemnifying party of any liability
to the indemnified party under this Section 2.8, to the extent that such failure materially
prejudices the indemnifying party’s ability to defend such action. The failure to give notice to
the indemnifying party will not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 2.8.
(d) To provide for just and equitable contribution to joint liability under the Securities Act
in any case in which either (i) any party otherwise entitled to indemnification hereunder makes a
claim for indemnification pursuant to this Section 2.8 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such indemnification may not be
enforced in such case, notwithstanding the fact that this Section 2.8 provides for
indemnification in such case, or (ii) contribution under the Securities Act may be required on the
part of any party hereto for which indemnification is provided under this Section 2.8,
then, and in each such case, such parties will contribute to the aggregate losses, claims, damages,
liabilities, or expenses to which they may be subject (after contribution from others) in such
proportion as is appropriate to reflect the relative fault of each of the indemnifying party and
the indemnified party in connection with the statements, omissions, or other actions that resulted
in such loss, claim, damage, liability, or expense, as well as to reflect 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 allegedly
untrue statement of a material fact, or the omission or alleged omission of 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; provided, however, that, in any such case, (x) no
Holder will be required to contribute any amount in excess of the public offering price of all such
Registrable Securities offered and sold by such Holder pursuant to such registration statement, and
(y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation; and provided further that in no event shall a
Holder’s liability pursuant to this Section 2.8(d), when combined with the amounts paid or
payable by such Holder pursuant to Section 2.8(b), exceed the proceeds from the offering
received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of
willful misconduct or fraud by such Holder.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) Unless otherwise superseded by an underwriting agreement entered into in connection with
the underwritten public offering, the obligations of the Company and Holders under this Section
2.8 shall survive the completion of any offering of Registrable Securities in a registration
under this Section 2, and otherwise shall survive the termination of this Agreement.
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2.9 Reports Under Exchange Act. With a view to making available to the Holders the
benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company shall:
(a) make and keep available adequate current public information, as those terms are understood
and defined in SEC Rule 144, at all times after the effective date of the registration statement
filed by the Company for the IPO;
(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the Exchange Act (at any
time after the Company has become subject to such reporting requirements); and
(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) to the extent accurate, a written statement by the Company that it has complied
with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the
effective date of the registration statement filed by the Company for the IPO), the Securities Act,
and the Exchange Act (at any time after the Company has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form
S-3 (at any time after the Company so qualifies); (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by the Company; and
(iii) such other information as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC that permits the selling of any such securities without registration (at any
time after the Company has become subject to the reporting requirements under the Exchange Act) or
pursuant to Form S-3 (at any time after the Company so qualifies to use such form).
2.10 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the Holders of a majority of
the Registrable Securities then outstanding, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder or prospective
holder (i) to include such securities in any registration unless, under the terms of such
agreement, such holder or prospective holder may include such securities in any such registration
only to the extent that the inclusion of such securities will not reduce the number of the
Registrable Securities of the Holders that are included or (ii) allow such holder or prospective
holder to initiate a demand for registration of any securities held by such holder or prospective
holder; provided that this limitation shall not apply to any additional Investor who becomes a
party to this Agreement in accordance with Section 6.9.
2.11 “Market Stand-off” Agreement. Each Holder 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 registration by the Company of shares of its Common
Stock or any other equity securities under the Securities Act and ending on the date specified by
the Company and the managing underwriter (such period not to exceed (x) one hundred eighty (180)
days in the case of the IPO or (y) ninety (90) days in the case of any registration statement other
than the IPO, (i) lend; offer; pledge; sell; contract to sell; sell any
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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
Common Stock or any securities convertible into or exercisable or exchangeable (directly or
indirectly) for Common Stock that is held immediately before the effective date of the registration
statement for such offering or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of such securities that
are held immediately before the effective date of the registration statement for such offering,
whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this
Section 2.11 shall not apply (a) to the transfer of any shares to an Affiliate of such
Holder or to any other Person that receives or will receive investment management services directly
or indirectly from Alberta Investment Management Corporation or a transferee or assignee that is
controlled by or under common control with one or more such Persons or (b) the sale of any shares
to an underwriter pursuant to an underwriting agreement, and shall be applicable to the Holders
only if all officers, directors and stockholders individually owning one percent (1%) or more of
the Company’s outstanding Common Stock (after giving effect to conversion into Common Stock of all
outstanding Series A Preferred Stock) are subject to the same restrictions. The underwriters in
connection with such registration are intended third-party beneficiaries of this Section
2.11 and shall have the right, power, and authority to enforce the provisions hereof as though
they were a party hereto. Each Holder further agrees to execute such agreements as may be
reasonably requested by the underwriters in connection with such registration that are consistent
with this Section 2.11 or that are necessary to give further effect thereto. Any
discretionary waiver or termination of the restrictions of any or all of such agreements by the
Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based
on the number of shares subject to such agreements. Notwithstanding the above, if (y) during the
period that begins on the date that is fifteen (15) calendar days plus three (3) business days
before the last day of the 180-day or 90-day period, as applicable, referred to above and ends on
the last day of such period, the Company issues an earnings release or material news or a material
event relating to the Company occurs; or (z) prior to the expiration of the 180-day or 90-day
period, as applicable, referred to above, the Company announces that it will release earnings
results during the sixteen (16) calendar day period beginning on the last day of such period, then,
at the request of the managing underwriter, such 180-day or 90-day period, as applicable, shall be
extended until the expiration of the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the earnings release or the material news or
material event occurs; provided, however, that no such extension may be requested or effected if
the safe harbor provided by Rule 139 under the Securities Act is available in the manner
contemplated by Rule 2711(f)(4) of the Financial Industry Regulatory Authority, Inc. or Rule
472(f)(4) of the New York Stock Exchange.
2.12 Restrictions on Transfer.
(a) The Registrable Securities shall not be sold, pledged, or otherwise transferred by any
Holder, and the Company shall not recognize and shall issue stop-transfer instructions to its
transfer agent with respect to any such sale, pledge, or transfer, except upon the a sale, pledge,
or transfer to any transferee or assignee (i) who is an Affiliate of Holder or any director,
officer of partner of an Affiliate of Holder, (ii) who is a family member of the Holder or a trust
for the benefit of the Holder or any family member of the Holder, (iii) who acquires at
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least one percent (1%) of the Registrable Securities of the Company, or (iv) who is a Person who
receives or will receive investment management services directly or indirectly from Alberta
Investment Management Corporation or a transferee or assignee that is controlled by or under common
control with one or more such Persons. In no event shall any Holder sell, pledge, or otherwise
transfer any Registrable Securities to a purchaser, pledgee, or transferee that the Board of
Directors, in its reasonable good faith judgment, determines to be a direct competitor of the
Company, without the Company’s prior written consent. A transferring Holder will cause any
proposed purchaser, pledgee, or transferee of the Registrable Securities held by such Holder to
agree in writing to take and hold such securities subject to the provisions and upon the conditions
specified in this Agreement.
(b) Each certificate or instrument representing (i) the Series A Preferred Stock, (ii) the
Registrable Securities, and (iii) any other securities issued in respect of the securities
referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger,
consolidation, or similar event, shall (unless otherwise permitted by the provisions of Section
2.12(c)) be stamped or otherwise imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD,
PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE
TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON
FILE WITH THE SECRETARY OF THE COMPANY.
The Holders consent to the Company making a notation in its records and giving instructions to any
transfer agent of the Restricted Securities in order to implement the restrictions on transfer set
forth in this Section 2.12.
(c) The holder of each certificate representing Restricted Securities, by acceptance thereof,
agrees to comply in all respects with the provisions of this Section 2. Before any
proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a
registration statement under the Securities Act covering the proposed transaction, the Holder
thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or
transfer. Each such notice shall describe the manner and circumstances of the proposed sale,
pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be
accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall,
and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company,
to the effect that the proposed transaction may be effected without registration under the
Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale,
pledge, or transfer of such Restricted Securities without registration will not result in a
recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any
14
other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed
sale, pledge, or transfer of the Restricted Securities may be effected without registration under
the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell,
pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by
the Holder to the Company. The Company will not require such a legal opinion or “no action” letter
(x) in any transaction in compliance with SEC Rule 144 or (y) in any transaction in which such
Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration;
provided that each transferee agrees in writing to be subject to the terms of this Section
2.12. Each certificate or instrument evidencing the Restricted Securities transferred as above
provided shall bear, except if such transfer is made pursuant to SEC Rule 144, the appropriate
restrictive legend set forth in Section 2.12(b), except that such certificate shall not
bear such restrictive legend if, in the opinion of counsel for such Holder and the Company, such
legend is not required in order to establish compliance with any provisions of the Securities Act.
2.13 Termination of Registration Rights. The right of any Holder to request
registration or inclusion of Registrable Securities in any registration pursuant to Section
2.1 or Section 2.2 shall terminate upon the earliest to occur of:
(a) the closing of a Deemed Liquidation Event, as such term is defined in the Company’s
Certificate of Incorporation; and
(b) the fifth anniversary of the IPO.
3. Information Rights.
3.1 Delivery of Financial Statements. The Company shall deliver to each Major
Investor, provided that the Board of Directors has not reasonably determined that such Major
Investor is a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the
end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii)
statements of income and of cash flows for such year and (iii) a statement of stockholders’ equity
as of the end of such year, all such financial statements audited and certified by independent
public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each
of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income
and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of
stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP
(except that such financial statements may (i) be subject to normal year-end audit adjustments and
(ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the beginning
of each fiscal year, a budget and business plan for the next fiscal year (collectively, the
“Budget”), approved by the Board of Directors and prepared on a monthly basis and, promptly after
prepared, any other budgets or revised budgets prepared by the Company; and
15
(d) such other information relating to the financial condition, business, prospects, or
corporate affairs of the Company as any Major Investor may from time to time reasonably request.
If, for any period, the Company has any subsidiary whose accounts are consolidated with those of
the Company, then in respect of such period the financial statements delivered pursuant to the
foregoing sections shall be the consolidated and consolidating financial statements of the Company
and all such consolidated subsidiaries.
Notwithstanding anything else in this Section 3.1 to the contrary, the Company may
cease providing the information set forth in this Section 3.1 during the period starting
with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a
registration statement if it reasonably concludes it must do so to comply with the SEC rules
applicable to such registration statement and related offering; provided that the Company’s
covenants under this Section 3.1 shall be reinstated at such time as the Company is no
longer actively employing its commercially reasonable efforts to cause such registration statement
to become effective.
3.2 Inspection. The Company shall permit each Major Investor (provided that the Board
of Directors has not reasonably determined that such Major Investor is a competitor of the
Company), at such Major Investor’s expense, to visit and inspect the Company’s properties; examine
its books of account and records; and discuss the Company’s affairs, finances, and accounts with
its officers, during normal business hours of the Company as may be reasonably requested by the
Major Investor.
3.3 Termination of Information Rights. The covenants set forth in Section 3.1
and Section 3.2 shall terminate and be of no further force or effect (i) immediately before
the consummation of the IPO, or (ii) when the Company first becomes subject to the periodic
reporting requirements of Section 12(g) or 15(d) of the Exchange Act, whichever event occurs first.
3.4 Confidentiality. Each Investor agrees that such Investor will not disclose,
divulge, or use for any purpose (other than to monitor its investment in the Company) any
confidential information obtained from the Company pursuant to the terms of this Agreement
(including notice of the Company’s intention to file a registration statement), unless such
confidential information (a) is known or becomes known to the public in general (other than as a
result of a breach of this Section 3.4 by an Investor), (b) is or has been independently
developed or conceived by such Investor without use of the Company’s confidential information, or
(c) is or has been made known or disclosed to the Investor by a third party without a breach of any
obligation of confidentiality such third party may have to the Company; provided, however, that an
Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and
other professionals to the extent necessary to obtain their services in connection with monitoring
its investment in the Company; (ii) to any prospective purchaser (provided that the Board of
Directors has not reasonably determined that such prospective purchaser is a competitor of the
Company), of any Registrable Securities from such Investor, if such prospective purchaser agrees to
be bound by the provisions of this Section 3.4; (iii) to any Affiliate, partner, member,
stockholder, or wholly owned subsidiary of such Investor in the ordinary course of such
16
Investor’s business to monitor or report such Investor’s investment in the Company; or (iv) as may
otherwise be required by law, provided that the Investor promptly notifies the Company of such
disclosure and takes reasonable steps to minimize the extent of any such required disclosure.
4. Rights to Future Stock Issuances.
4.1 Right of First Offer. Subject to the terms and conditions of this Section
4.1 and applicable securities laws, if the Company proposes to offer, sell or otherwise issue
any New Securities, the Company shall first offer such New Securities to each Major Investor and
each Key Holder. A Major Investor shall be entitled to apportion the right of first offer hereby
granted to it among itself and its Affiliates in such proportions as it deems appropriate.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor and Key Holder,
stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New
Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer
such New Securities.
(b) By notification to the Company within twenty (20) days after the Offer Notice is given,
each Major Investor and Key Holder may elect to purchase or otherwise acquire, at the price and on
the terms specified in the Offer Notice, up to that portion of such New Securities which equals the
proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon
conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative
Securities then held, by such Major Investor or Key Holder, as the case may be, bears to the total
Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as
applicable, of all Preferred Stock and other Derivative Securities). At the expiration of such
twenty (20) day period, the Company shall promptly notify each Major Investor and Key Holder that
elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”)
of any other Major Investor’s or Key Holder’s failure to do likewise. During the ten (10) day
period commencing after the Company has given such notice, each Fully Exercising Investor may, by
giving notice to the Company, elect to purchase or acquire, in addition to the number of shares
specified above, up to that portion of the New Securities for which Major Investors were entitled
to subscribe but that were not subscribed for by the Major Investors which is equal to the
proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon
conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities
then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable
(directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and
any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase
such unsubscribed shares. The closing of any sale pursuant to this Section 4.1(b) shall
occur within the later of ninety (90) days of the date that the Offer Notice is given and the date
of initial sale of New Securities pursuant to Section 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or
acquired as provided in Section 4.1(b), the Company may, during the ninety (90) day period
following the expiration of the periods provided in Section 4.1(b), offer and sell
17
the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not
less than, and upon terms no more favorable to the offeree than, those specified in the Offer
Notice. If the Company does not enter into an agreement for the sale of the New Securities within
such period, or if such agreement is not consummated within thirty (30) days of the execution
thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall
not be offered unless first reoffered to the Major Investors and Key Holders in accordance with
this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to (i)
Exempted Securities (as defined in the Company’s Certificate of Incorporation); (ii) shares of
Common Stock issued in the IPO; and (iii) the issuance of shares of Series C Preferred Stock to
Additional Purchasers pursuant to the Purchase Agreement.
4.2 Directed IPO Shares. If an IPO is undertaken, the Company will use its
commercially reasonable efforts to cause the managing underwriter(s) of the IPO to designate a
number of shares equal to ten percent (10%) of the Common Stock to be offered in the IPO for sale
under a “directed shares program” to Persons designated by the Major Investors holding Series B
Preferred Stock (the “Series B Investors”) or their designees, provided that the Company shall
instruct such underwriter(s) to allocate no less than fifty percent (50%) of the shares included in
such directed share program to Xxxxx Capital Management, L.P. and its Affiliates. The shares
designated by the underwriter(s) for sale under a directed shares program are referred to herein as
“directed shares.” The Series B Investors acknowledge that, despite the Company’s use of its
commercially reasonable efforts, the underwriter(s) may determine in their sole discretion that it
is not advisable to designate all such shares as directed shares in the IPO, in which case the
number of directed shares may be reduced or no directed shares may be designated, as applicable.
The Series B Investors acknowledge that notwithstanding the terms of this Agreement, the sale of
any directed shares to any Person pursuant to this Agreement will only be made in compliance with
Rules 2010 and 5130 of the Financial Industry Regulatory Authority, Inc. Rules and federal, state,
and local laws, rules, and regulations.
4.3 Termination. The covenants set forth in Section 4.1 shall terminate and
be of no further force or effect (i) immediately before the consummation of the IPO, (ii) when the
Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of
the Exchange Act, or (iii) upon a Deemed Liquidation Event, as such term is defined in the
Company’s Certificate of Incorporation, whichever event occurs first. The covenants set forth in
Section 4.2 shall terminate and be of no further force or effect (i) immediately after the
consummation of the IPO and (ii) upon a Deemed Liquidation Event, as such term is defined in the
Company’s Certificate of Incorporation, whichever event occurs first.
5. Additional Covenants.
5.1 Insurance. Unless the board of Directors determines that such action would not be
in the best interest of the stockholders of the Company, the Company shall use its commercially
reasonable efforts to continue to maintain Directors and Officers liability insurance and term
“key-person” insurance on Xxxx Xxxxxx until such time as the Board of Directors determines that
such insurance should be discontinued.
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5.2 Employee Agreements. The Company will cause each person now or hereafter employed
by it or by any subsidiary (or engaged by the Company or any subsidiary as a consultant/independent
contractor) with access to confidential information and/or trade secrets to enter into a
nondisclosure and proprietary rights assignment agreement substantially in the form approved by the
Board of Directors. In addition, the Company shall not amend, modify, terminate, waive, or
otherwise alter, in whole or in part, any of the above-referenced agreements without the consent of
the Board of Directors.
5.3 Employee Stock. Unless otherwise approved by the Board of Directors, all future
employees and consultants of the Company who purchase, receive options to purchase, or receive
awards of shares of the Company’s capital stock after the date hereof shall be required to execute
restricted stock or option agreements, as applicable, providing for (i) vesting of shares over a
five (5) year period, with the first twenty percent (20%) of such shares vesting following twelve
(12) months of continued employment or service, and the remaining shares vesting in equal monthly
installments over the following forty-eight (48) months, and (ii) a market stand-off provision
substantially similar to that in Section 2.11. In addition, unless otherwise approved by
the Board of Directors the Company shall retain a “right of first refusal” on employee transfers
until the Company’s IPO and shall have the right to repurchase unvested shares at cost upon
termination of employment of a holder of restricted stock.
5.4 Board Matters. Unless otherwise determined by the vote of a majority of the
directors then in office, the Board of Directors shall meet at least quarterly in accordance with
an agreed-upon schedule. The Company shall reimburse the nonemployee directors for all reasonable
out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection
with attending meetings of the Board of Directors.
5.5 Successor Indemnification. If the Company or any of its successors or assignees
consolidates with or merges into any other Person and is not the continuing or surviving
corporation or entity of such consolidation or merger, then to the extent necessary, proper
provision shall be made so that the successors and assignees of the Company assume the obligations
of the Company with respect to indemnification of members of the Board of Directors as in effect
immediately before such transaction, whether such obligations are contained in the Company’s
Bylaws, its Certificate of Incorporation, or elsewhere, as the case may be.
5.6 Termination of Covenants. The covenants set forth in this Section 5,
except for Section 5.5, shall terminate and be of no further force or effect (i)
immediately before the consummation of the IPO (ii) when the Company first becomes subject to the
periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii) upon a
Deemed Liquidation Event, as such term is defined in the Company’s Certificate of Incorporation,
whichever event occurs first.
6. Miscellaneous.
6.1 Successors and Assigns. The rights under this Agreement may be assigned (but only
with all related obligations) by a Holder to a transferee of Registrable Securities that (i) is an
Affiliate of a Holder; (ii) is a Holder’s Immediate Family Member or trust
19
for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members;
(iii) is a Person that receives or will receive investment management services directly or
indirectly from Alberta Investment Management Corporation or a transferee or assignee that is
controlled by or under common control with one or more such Persons; or (iv) after such transfer,
holds at least 1,000,000 shares of Registrable Securities (subject to appropriate adjustment for
stock splits, stock dividends, combinations, and other recapitalizations); provided, however, that
(x) the Company is, within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee and the Registrable Securities with respect to which such
rights are being transferred; and (y) such transferee agrees in a written instrument delivered to
the Company to be bound by and subject to the terms and conditions of this Agreement, including the
provisions of Section 2.11. For the purposes of determining the number of shares of
Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate
or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust
for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be
aggregated together and with those of the transferring Holder; provided further that all
transferees who would not qualify individually for assignment of rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action
under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are
binding upon the respective successors and permitted assignees 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 assignees any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided herein.
6.2 Governing Law. This Agreement and any controversy arising out of or relating to
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 California, without
regard to conflict of law principles that would result in the application of any law other than the
law of the State of California.
6.3 Counterparts; Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. 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.
6.4 Titles and Subtitles. The titles and subtitles used in this Agreement are for
convenience only and are not to be considered in construing or interpreting this Agreement.
6.5 Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual
receipt or: (i) personal delivery to the party to be notified; (ii) when sent, if sent by
electronic mail or facsimile during the recipient’s normal business hours, and if not sent during
normal business hours, then on the recipient’s 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 of deposit with a nationally recognized overnight courier,
freight prepaid, specifying next-day delivery, with written verification of receipt. All
20
communications shall be sent to the respective parties at their addresses as set forth on
Schedule A or Schedule B (as applicable) hereto, or to the principal office of the
Company and to the attention of the Chief Executive Officer, 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 6.5. If notice is given to the Company, a copy which shall
not constitute notice, shall also be sent to Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 000 Xxxx
Xxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxxx. If notice is given to Xxxxx Capital
Management, L.P., or its Affiliates, a copy (which shall not constitute notice) shall also be given
to Xxxxxxx Procter LLP, Attention: Xxxxxxx X. XxXxxxxx, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX
00000-0000.
6.6 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance, and either retroactively or prospectively) only with the written consent of the Company
and the holders of a majority of the Registrable Securities then outstanding; provided that the
Company may in its sole discretion waive compliance with Section 2.12(c) (and the Company’s
failure to object promptly in writing after notification of a proposed assignment allegedly in
violation of Section 2.12(c) shall be deemed to be a waiver); and provided further that any
provision hereof may be waived by any waiving party on such party’s own behalf, without the consent
of any other party. Notwithstanding the foregoing, this Agreement may not be amended or terminated
and the observance of any term hereof may not be waived with respect to any Investor or Key Holder
without the written consent of such Investor or Key Holder, as the case may be, unless such
amendment, termination, or waiver applies to all Investors or Key Holders, as the case may be, in
the same fashion; provided, that Section 2.11, Section 2.12 and Section 6.1
as they each may apply to 1538716 Alberta Ltd. (or its permitted transferee or assign) may not be
amended and the observance of any term thereof may not be waived without the written consent of
1538716 Alberta Ltd. (or its permitted transferee or assign); and provided, further, that
Section 2.11, Section 2.12 and Section 6.1 as they each may apply to
1538731 Alberta Ltd. (or its permitted transferee or assign) may not be amended and the observance
of any term thereof may not be waived without the written consent of 1538731 Alberta Ltd. (or its
permitted transferee or assign). Schedule A and Schedule B hereto may be amended
by the Company from time to time to add information regarding additional Investors or parties to
this Agreement pursuant to Sections 6.1 and 6.9 without the consent of the other
parties hereto. The Company shall give prompt notice of any amendment or termination hereof or
waiver hereunder to any party hereto that did not consent in writing to such amendment,
termination, or waiver. Any amendment, termination, or waiver effected in accordance with this
Section 6.6 shall be binding on all parties hereto, regardless of whether any such party
has consented thereto. 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.
6.7 Severability. In case any one or more of the provisions contained in this
Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement,
and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.
21
6.8 Aggregation of Stock. All shares of Registrable Securities held or acquired by
Affiliates shall be aggregated together for the purpose of determining the availability of any
rights under this Agreement and such Affiliated persons may apportion such rights as among
themselves in any manner they deem appropriate.
6.9 Additional Investors. Notwithstanding anything to the contrary contained herein,
if the Company issues additional shares of the Company’s Series C Preferred Stock after the date
hereof, whether pursuant to the Purchase Agreement or otherwise, any purchaser of such shares of
Series C 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. No action or consent by the Investors shall be required for
such joinder to this Agreement by such additional Investor, so long as such additional Investor has
agreed in writing to be bound by all of the obligations as an “Investor” hereunder.
6.10 Entire Agreement. This Agreement amends and restates the Prior Agreement in its
entirety and renders the Prior Agreement null and void. This Agreement (including any Schedules
and Exhibits hereto) constitutes the full and entire understanding and agreement among 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 is expressly canceled.
6.11 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 nonbreaching or
nondefaulting 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. All remedies, whether under this Agreement or by law or otherwise afforded
to any party, shall be cumulative and not alternative.
6.12 Acknowledgment. The Company acknowledges that the Investors are in the business
of venture capital investing and therefore review the business plans and related proprietary
information of many enterprises, including enterprises which may have products or services which
compete directly or indirectly with those of the Company. Nothing in this Agreement shall preclude
or in any way restrict the Investors from investing or participating in any particular enterprise
whether or not such enterprise has products or services which compete with those of the Company.
[Remainder of Page Intentionally Left Blank]
22
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Investors’ Rights
Agreement as of the date first written above.
| COMPANY: KIOR, INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
| Address: 00000 Xxx Xxxx Xxxx, Xxxxxxxx, XX 00000 |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: Xxxxx Partners, X.X. Xxxxx Partners 2X, X.X. Xxxxx Partners (Institutional), X.X. Xxxxx Partners 2X (Institutional), X.X. Xxxxx Aggressive Growth, L.P. By: Xxxxx Capital Management, L.P. General Partner for Each Fund |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Its: Chief Operating Officer | ||||
| Address: c/o Artis Capital Management, L.P. Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 |
||||
| Xxxxx Partners Ltd. Xxxxx Partners 2X Ltd. Xxxxx Aggressive Growth Master Fund, L.P. By: Xxxxx Capital Management, L.P. Investment Adviser and Attorney-In-Fact for Each Fund |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Its: Chief Operating Officer | ||||
| Address: c/o Artis Capital Management, L.P. Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| Xxxxx Private Growth Partners, X.X. Xxxxx Private Growth Partners Entrepreneurs Fund, L.P. By: Xxxxx Private Growth Management, LLC Investment Adviser and Attorney-In-Fact |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Operating Officer | |||
| Address: c/o Artis Capital Management, L.P. Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 |
||||
| Xxxxx Private Growth Partners II, L.P. APG2, L.P. By: Xxxxx Private Growth Management II, LLC, General Partner for Each Fund |
||||
| /s/ Xxxx Xxxxxx | ||||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Operating Officer | |||
| Address: c/o Artis Capital Management, L.P. Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX 00000 |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: Xxxxxx Ventures II, LP By: Xxxxxx Ventures Associates II, LLC, a Delaware limited liability company and general partner of Xxxxxx Ventures II, LP |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Member | |||
| Address: 0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, XX 00000 Attn: Xxx Xxxxx |
||||
| Xxxxxx Ventures III, LP By: Xxxxxx Ventures Associates III, LLC, a Delaware limited liability company and general partner of Xxxxxx Ventures III, LP |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Member | |||
| Address: 0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, XX 00000 Attn: Xxx Xxxxx |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: LIGHTHOUSE CAPITAL PARTNERS VI, L.P. |
||||
| By: | Lighthouse Management Partners VI,
LLC, its general partner |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: 0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000 Xxxxx Xxxx, XX 00000 |
||||
| LEADER EQUITY, LLC |
||||
| By: | Leader Ventures, LLC, its manager |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: 1538731 Alberta Ltd. |
||||
| By: | /s/ Illegible | |||
| Name: | ||||
| Title: | ||||
| Address: c/o Alberta Investment Management Corporation 1100 — 00000 Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxx X0X 0X0 Attention: Chief Legal Counsel and Corporate Secretary |
||||
| 1538716 Alberta Ltd. |
||||
| By: | /s/ Illegible | |||
| Name: | ||||
| Title: | ||||
| Address: c/o Alberta Investment Management Corporation 1100 — 00000 Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxx X0X 0X0 Attention: Chief Legal Counsel and Corporate Secretary |
||||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: VK SERVICES, LLC |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Member | |||
| XXXXXXXXX XXXXXXX |
||||
| By: | ||||
| Name: | Xxxxxxxxx Xxxxxxx | |||
| XXXXX XXXXXX |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxx | |||
| XXXXX XXXXX |
||||
| By: | ||||
| Name: | Xxxxx Xxxxx | |||
| XXXXXXXX XXXXX |
||||
| By: | ||||
| Name: | Xxxxxxxx Xxxxx | |||
| XXXXX XXXXXX |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxx | |||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| INVESTORS: THE XXXX FAMILY TRUST DATED JULY 20, 2009 |
||||
| By: | ||||
| Name: | Xxxxx Xxxx | |||
| Title: | Trustee | |||
| THE XXXX X. XXXX 2010 IRREVOCABLE TRUST |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Trustee | |||
| THE XXX XXXX 2010 IRREVOCABLE TRUST |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Trustee | |||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
| KEY HOLDERS: BIOeCON B.V. |
||||
| By: | /s/ Xxxx X'Xxxxxx | |||
| Name: | Xxxx X'Xxxxxx | |||
| Title: | Director | |||
Signature Page to Kior, Inc.
Amended and Restated Investors’ Rights Agreement
Amended and Restated Investors’ Rights Agreement
SCHEDULE A
INVESTORS
Xxxxxx Ventures II, LP
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxx Xxxxx
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Xxxxxx Ventures III, LP
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxx Xxxxx
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Xxxxx Partners, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Partners 2X, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Partners (Institutional), L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Partners 2X (Institutional), L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Aggressive Growth, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
One Market Plaza
Xxxxxxx Street Tower, Suite 2700
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
One Market Plaza
Xxxxxxx Street Tower, Suite 2700
Xxx Xxxxxxxxx, XX 00000
Xxxxx Partners Ltd.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Partners 2X Ltd.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Aggressive Growth Master Fund, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Private Growth Partners, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Private Growth Partners II, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Private Growth Partners Entrepreneurs Fund, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
APG2, L.P.
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
x/x Xxxxx Xxxxxxx Xxxxxxxxxx, X.X.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Lighthouse Capital Partners VI, L.P.
3555 Alameda de las Pulgas, Xxxxx 000
Xxxxx Xxxx, XX 00000
3555 Alameda de las Pulgas, Xxxxx 000
Xxxxx Xxxx, XX 00000
Leader Equity, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
1538731 Alberta Ltd.
c/o Alberta Investment Management Corporation
1100 — 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Legal Counsel and Corporate Secretary
c/o Alberta Investment Management Corporation
1100 — 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Legal Counsel and Corporate Secretary
1538716 Alberta Ltd.
c/o Alberta Investment Management Corporation
1100 — 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Legal Counsel and Corporate Secretary
c/o Alberta Investment Management Corporation
1100 — 00000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Chief Legal Counsel and Corporate Secretary
VK Services, LLC
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxxxxx Xxxxxxx
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxx
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxx
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxxxx Xxxxx
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxx
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
The Xxxx Family Trust dated July 20, 2009
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
The Xxx Xxxx 2010 Irrevocable Trust
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
The Xxxx X. Xxxx 2010 Irrevocable Trust
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
c/x Xxxxxx Ventures
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
SCHEDULE B
KEY HOLDERS
BIOeCON B.V.
Xxxxxxxxxxxxxx 00 x
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
Xxxxxxxxxxxxxx 00 x
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
