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EXHIBIT 10.6
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
ARRAY BIOPHARMA INC.
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TABLE OF CONTENTS
Page
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RECITALS ...............................................................1
SECTION 1. PURCHASE AND SALE..............................................1
1.1 Authorization of Shares........................................1
1.2 Sale and Purchase..............................................1
SECTION 2. CLOSING........................................................1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................2
3.1 Organization, Good Standing and Qualification..................2
3.2 Capitalization.................................................2
3.3 Authorization..................................................3
3.4 Financial Statements...........................................3
3.5 Liabilities....................................................3
3.6 Changes........................................................3
3.7 Material Contracts.............................................5
3.8 Obligations to Related Parties.................................5
3.9 Assets.........................................................6
3.10 Intellectual Property..........................................6
3.11 Compliance with Other Instruments..............................7
3.12 Litigation.....................................................7
3.13 Taxes..........................................................7
3.14 Employees and Consultants......................................7
3.15 Employee Benefits Matters......................................8
3.16 Registration Rights............................................8
3.17 Governmental Approvals/Third Party Consents....................8
3.18 Compliance with Laws...........................................8
3.19 Environmental Matters..........................................9
3.20 Offering Valid.................................................9
3.21 Accuracy of Information Furnished..............................9
3.22 Insurance......................................................9
3.23 Investment Company Act.........................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS...................9
4.1. Requisite Power and Authority..................................9
4.2. Investment Representations....................................10
4.3 Restrictive Legends...........................................11
SECTION 5. CONDITIONS TO CLOSING.........................................11
5.1 Conditions to Purchasers' Obligations at the Closing..........11
5.2 Conditions to Obligations of the Company at Closing...........13
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SECTION 6. COVENANTS OF THE COMPANY FOR THE PERIOD FOLLOWING CLOSING.....13
6.1 Use of Proceeds...............................................13
6.2 Maintenance of Corporate Status...............................14
6.3 Compliance with Governing Documents...........................14
6.4 Compliance with Laws, Licenses and Permits; No Infringement...14
6.5 Discharge of Obligations......................................14
6.6 Maintenance of Properties.....................................14
6.7 Maintenance of Proprietary Information........................14
6.8 Compensation of Directors.....................................14
6.9 Books and Records.............................................15
SECTION 7. MISCELLANEOUS.................................................15
7.1 Governing Law.................................................15
7.2 Survival......................................................15
7.3 Successors and Assigns........................................15
7.4 Entire Agreement..............................................15
7.5 Severability..................................................15
7.6 Amendment and Waiver..........................................15
7.7 Delays or Omissions...........................................16
7.8 Notices.......................................................16
7.9 Expenses......................................................16
7.10 Indemnification by the Company................................16
7.11 Indemnification by the Purchasers.............................16
7.12 Titles and Subtitles..........................................17
7.13 Counterparts..................................................17
7.14 Broker's Fees.................................................17
7.15 Arbitration...................................................17
7.16 Exculpation Among Purchasers..................................17
7.17 Pronouns......................................................18
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SERIES B PREFERRED STOCK PURCHASE AGREEMENT
ARRAY BIOPHARMA INC.
This Series B Preferred Stock Purchase Agreement (the "Agreement") is
made and entered into as of the 16th day of November 1999, by and among ARRAY
BIOPHARMA INC., a Delaware corporation (the "Company"), and each of the
"Purchasers" identified on the signature pages hereto.
RECITALS
A. The Company has authorized the issuance and sale of a total of
3,200,000 shares (the "Shares") of Series B Preferred Stock of the Company, par
value $0.001 per share.
B. The Company desires to sell the Shares to Purchasers, and Purchasers
desire to purchase the Shares, pursuant to the terms and conditions contained
herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants, agreements,
conditions, representations, and warranties contained in this Agreement, the
Company and Purchasers hereby each agree as follows:
SECTION 1. PURCHASE AND SALE.
1.1 AUTHORIZATION OF SHARES. On or prior to the Closing (as defined in
Section 2 below), the Company shall have authorized (i) the sale and issuance to
Purchasers of the Shares; and (ii) such shares of Common Stock issuable upon
conversion of the Shares (the "Conversion Shares"). The Shares and the
Conversion Shares shall have the rights, preferences, privileges and
restrictions set forth in the Amended and Restated Certificate of Incorporation
of the Company, in the form attached hereto as Exhibit A (the "Amended
Certificate").
1.2 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as defined in Section 2 below) the Company hereby agrees to issue
and sell to each Purchaser, severally and not jointly, and each Purchaser agrees
to purchase from the Company, severally and not jointly, the number of Shares
set forth opposite such Purchaser's name on Exhibit B hereto, at the purchase
price of $2.50 per Share.
SECTION 2. CLOSING.
The closing of the sale and purchase of the Shares under this Agreement
(the "Closing") shall take place at 11 a.m. on the date hereof, at the offices
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other time or place as the Company and Purchasers may mutually agree
(such date is hereinafter referred to as the "Closing Date"). At the Closing,
subject to the terms and conditions hereof, the Company will deliver to the
Purchasers certificates representing the number of Shares to be purchased at the
Closing by each
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Purchaser as set forth opposite such Purchaser's name on Exhibit B, against
payment of the purchase price therefor by check or wire transfer made payable to
the order of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth on the Disclosure Schedule attached hereto as
Exhibit C, the Company hereby represents and warrants to each Purchaser that is
purchasing the Shares as follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Company has all requisite corporate power and
authority to own and operate its properties and assets, to execute and deliver
this Agreement, the Amended and Restated Investor Rights Agreement in the form
attached hereto as Exhibit D (the "Investor Rights Agreement"), and the Amended
and Restated Shareholders Agreement in the form attached hereto as Exhibit E
(the "Shareholders Agreement") (collectively with this Agreement and the Amended
Certificate, the "Financing Documents"), to issue and sell the Shares and to
carry out the provisions of the Financing Documents, and to carry on its
business as presently conducted and as presently proposed to be conducted. The
Company is duly qualified and is authorized to do business and is in good
standing in each jurisdiction in which the nature of its activities and of its
properties (both owned and leased) makes such qualification necessary, except
for those jurisdictions in which failure to do so would not have a material
adverse effect on the Company or its business. The Company does not own,
directly or indirectly, equity securities of any other corporation, limited
partnership, limited liability company or other similar entity. The Company is
not a participant in any joint venture, partnership or similar arrangement.
3.2 CAPITALIZATION. The authorized capital stock of the Company,
immediately prior to the Closing, will consist of (a) 17,000,000 shares of
Common Stock, 2,999,617 shares of which are issued and outstanding, 3,337,500
shares of which are reserved for future issuance to employees and consultants
pursuant to the Company's 1998 Option Plan, as amended, 6,694,270 shares of
which are reserved for issuance upon conversion of the Series A Preferred Stock
and warrants, and 3,200,000 shares of which are reserved for issuance upon
conversion of the Series B Preferred Stock; and (b) 10,000,000 shares of
Preferred Stock, 6,800,000 shares all of which are designated Series A Preferred
Stock, and 3,200,000 shares of which are designated Series B Preferred Stock.
All issued and outstanding shares of the Company's Common Stock and Series A
Preferred Stock (i) have been duly authorized and validly issued, (ii) are fully
paid and nonassessable, and (iii) were issued in compliance with all applicable
state and federal laws concerning the issuance of securities. The rights,
preferences, privileges and restrictions of the Shares are as stated in the
Amended Certificate. The Conversion Shares have been duly and validly reserved
for issuance. Except as may be granted pursuant to the Financing Documents, the
Company's Preferred and Common Stock Purchase Agreement dated May 18, 1998, as
amended, and the Agreements referred therein, the Company's 1998 Option Plan,
and certain credit facilities, there are no outstanding options, warrants,
rights (including conversion or preemptive rights and rights of first refusal),
proxy or shareholders agreements, or agreements of any kind for the purchase or
acquisition from the Company of any of its securities. When issued in compliance
with the provisions of this Agreement and the Amended Certificate, the Shares
and the Conversion Shares will be validly issued, fully paid and nonassessable,
and will be free
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of any liens or encumbrances; provided, however, that the Shares and the
Conversion Shares may be subject to restrictions on transfer under state and/or
federal securities laws. A schedule describing the anticipated capitalization of
the Company as of the Closing is attached as Exhibit F hereto.
3.3 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization of this
Agreement and the Financing Documents, the performance of all obligations of the
Company hereunder and thereunder at the Closing, and the authorization, sale,
issuance and delivery of the Shares pursuant hereto and the Conversion Shares
pursuant to the Amended Certificate has been taken or will be taken prior to the
Closing. The Agreement and the Financing Documents, when executed and delivered,
will be valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights; (ii) general principles
of equity that restrict the availability of equitable remedies; and (iii) to the
extent that the enforceability of the indemnification provisions in the Investor
Rights Agreement may be limited by applicable laws. The sale of the Shares and
the subsequent conversion of the Shares into Conversion Shares are not and will
not be subject to any preemptive rights or rights of first refusal that have not
been properly waived or complied with.
3.4 FINANCIAL STATEMENTS. The Company's audited financial statements
for its fiscal year ended June 30, 1999, and its unaudited consolidated balance
sheet (the "Balance Sheet") as of 15 days prior to the Closing (the "Balance
Sheet Date"), and unaudited consolidated statements of operations of the Company
for the period from July 1, 1999 through the Balance Sheet Date, delivered to
the Purchasers in connection with the investment contemplated hereby
(collectively, the "Financial Statements"), fairly present in all material
respects the financial position and the results of operations of the Company for
the period covered thereby.
3.5 LIABILITIES. The Company has no material liabilities and, to the
best of its knowledge, the Company knows of no material contingent liabilities
not disclosed in the Balance Sheet, except current liabilities incurred in the
ordinary course of business subsequent to the Balance Sheet Date which have not
been, either in any individual case or in the aggregate, materially adverse.
3.6 CHANGES. Since the Balance Sheet Date, and excluding the
transactions contemplated by the Financing Documents, there has not been:
(a) Any change in the assets, liabilities, financial condition
or operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is expected to have a material
adverse effect on such assets, liabilities, financial condition or operations of
the Company.
(b) Any resignation or termination of any key officers of the
Company; and the Company, to the best of its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
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(c) Any material change, except in the ordinary course of
business, in the contingent obligations of the Company by way of guaranty,
endorsement, indemnity, warranty or otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any waiver by the Company of a valuable right or of a
material debt owed to it;
(f) Any direct or indirect loans made by the Company to any
stockholder, employee, officer or director of the Company, other than advances
made in the ordinary course of business;
(g) Any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder of the Company;
(h) Any declaration or payment of any dividend or other
distribution of the assets of the Company;
(i) Any labor organization activity;
(j) Any debt, obligation or liability incurred, assumed or
guaranteed by the Company, except those for immaterial amounts and for current
liabilities incurred in the ordinary course of business;
(k) Any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets of the Company;
(1) Any change in any material agreement to which the Company
is a party or by which it is bound which materially and adversely affects the
business, assets, liabilities, financial condition, operations or prospects of
the Company, including compensation agreements with the Company's employees; or
(m) Any other event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the
business, assets, liabilities, financial condition, operations or prospects of
the Company.
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3.7 MATERIAL CONTRACTS.
(a) Except as set forth on Item 3.7 of the Disclosure
Schedule, the Company has no, and is not bound by, any contract, agreement,
lease, commitment, or proposed transaction, judgment, order, writ or decree,
written or oral, absolute or contingent, other than (i) contracts for the
purchase of supplies and services that were entered into in the ordinary course
of business and that do not involve more than $10,000, and do not extend for
more than one year beyond the date hereof; (ii) sales contracts entered into in
the ordinary course of business; and (iii) contracts terminable at will by the
Company on no more than 30 days' notice without cost or liability to the Company
and that do not involve any employment or consulting arrangement and are not
material to the conduct of the Company's business. For the purpose of this
paragraph, employment and consulting contracts and contracts with labor unions,
and license agreements and any other agreements relating to the Company's
acquisition or disposition of patent, copyright, trade secret or other
proprietary rights or technology (other than standard end-user license
agreements) shall not be considered to be contracts entered into in the ordinary
course of business. Every contract disclosed on Item 3.7 of the Disclosure
Schedule (collectively, the "Material Contracts") is a legal, valid and binding
obligation, enforceable in accordance with its terms with respect to the Company
and any other parties bound thereby, and true and complete copies of all
Material Contracts have been provided to Purchasers. The Company has not been
given notice that any other party is currently in breach of any of the terms of
any Material Contract. There is no default or event that, with notice or lapse
of time, or both, would conflict with or constitute a breach of any Material
Contract or would result in the creation or imposition of any lien or
encumbrance on the Company, or any of the Company's property. The Company has
not received notice that any party to any Material Contract intends to cancel,
amend or terminate any such agreement.
(b) Except as set forth on Item 3.7 of the Disclosure
Schedule, the Company has not engaged in the past three months in any discussion
(i) with any representative of any corporation or corporations regarding the
consolidation or merger of the Company with or into any such corporation or
corporations; (ii) with any corporation, partnership, association or other
business entity or any individual regarding the sale, conveyance or disposition
of all or substantially all of the assets of the Company, or a transaction or
series of related transactions in which more than 50% of the voting power of the
Company is or was to be disposed; or (iii) regarding any other form of
acquisition, liquidation, dissolution or winding up of the Company.
3.8 OBLIGATIONS TO RELATED PARTIES. There are no obligations of the
Company to officers, directors, stockholders, or employees of the Company other
than (i) for payment of salary for services rendered since the commencement of
the Company's most recent payroll period; (ii) reimbursement for reasonable
expenses incurred on behalf of the Company; and (iii) for other standard
employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company). Except as set forth on Item 3.8 of the Disclosure
Schedule, none of the officers, directors or stockholders of the Company, or any
members of their immediate families, are indebted to the Company or have any
direct or indirect ownership interest in any firm or corporation with which the
Company is affiliated or with which the Company has a business relationship, or
any firm or corporation which competes with the Company, except that officers,
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directors and/or stockholders of the Company may own stock in publicly traded
companies which may compete with the Company. No officer, director or
stockholder, or any member of their immediate families, is, directly or
indirectly, interested in any material contract with the Company (other than
such contracts as relate to any such person' s ownership of capital stock or
other securities of the Company). Except as may be disclosed in the Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation.
3.9 ASSETS. The Company has good and, with respect to real property,
marketable, title to all of its real and personal property, including all assets
reflected on the balance sheets included in the Financial Statements or acquired
by the Company since the Balance Sheet Date, all of which are in good operating
condition and free and clear of material restrictions on or conditions to
transfer or assignment, and free and clear of all liens, claims, mortgages,
pledges, charges, equities, easements, rights of way, covenants, conditions,
security interests, encumbrances, or restrictions, except for liens for current
taxes or materialmen not yet due and payable or being contested in good faith.
Set forth on Item 3.9 of the Disclosure Schedule is a correct and complete list
of all real property owned by the Company, and a list (including the amount of
annual rents called for and a summary description of the leased property) of all
leases under which the Company is a lessee. The properties and leases listed on
Item 3.9 of the Disclosure Schedule are sufficient for the conduct of the
Company's business as now being and presently planned to be conducted. The
Company holds a valid leasehold interest in all leases listed on Item 3.9 of the
Disclosure Schedule, free of any liens, claims, or encumbrances granted by the
Company, except for those described in the first sentence of this Section 3.9,
and is not in default under any such lease. The Company enjoys peaceful and
undisturbed possession of all premises owned by it, or leased to it from others,
and does not occupy any real property in material violation of any law,
regulations, or decree.
3.10 INTELLECTUAL PROPERTY. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information and other proprietary rights and processes necessary
for its business as now conducted and as proposed to be conducted, without any
known infringement of the rights of others. There are no outstanding options,
licenses or agreements of any kind relating to the foregoing, nor is the Company
bound by or a party to any options, licenses or agreements of any kind with
respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information and other proprietary rights and processes
of any other person or entity other than such licenses or agreements arising
from the purchase of "off the shelf" or standard products. The Company has
received no communication alleging that the Company has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. The Company is not aware that
any of its employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with their duties to the Company or that would conflict with the
Company's business as proposed to be conducted. Neither the execution nor
delivery of this Agreement, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as proposed,
will, to the Company's knowledge, conflict with or result in a breach of
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the terms, conditions or provisions of, or constitute a default under, any
contract, covenant or instrument under which any employee is now obligated.
3.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation
or default of any term of its Amended Certificate or Bylaws, or of any provision
of any mortgage, indenture, contract, agreement, instrument or contract to which
it is party or by which it is bound or of any judgment, decree, order, writ or,
to its knowledge, any statute, rule or regulation applicable to the Company
which would materially and adversely affect the business, assets, liabilities,
financial condition, operations or prospects of the Company. The execution,
delivery, and performance of and compliance with this Agreement, and the
Financing Documents, and the issuance and sale of the Shares pursuant hereto and
of the Conversion Shares pursuant to the Amended Certificate, will not, with or
without the passage of time or giving of notice, result in any such material
violation, or be in conflict with or constitute a default under any such term,
or result in the creation of any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of the Company or the suspension,
revocation, impairment, forfeiture or nonrenewal of any permit license,
authorization or approval applicable to the Company, its business or operations
or any of its assets or properties.
3.12 LITIGATION. Except as set forth on Item 3.12 of the Disclosure
Schedule, there are no actions, suits, or legal, administrative, or other
proceedings or investigations pending or, to the best of the Company's
knowledge, threatened before any court, agency, or other tribunal to which the
Company is a party or against or affecting any of the property, assets,
businesses, or financial condition of the Company. The Company is not in default
with respect to any order, writ, injunction, or decree of any federal, state,
local or foreign court, department, agency, or instrumentality to which it is a
party .
3.13 TAXES. The Company has timely filed all federal, state, county,
local and foreign tax returns and reports within the times and in the manner
prescribed by law and has paid (or made adequate provision in the Financial
Statements for) all taxes shown due on such returns, as well as all other
assessments and penalties which have become due and payable. The Company's
federal income and other tax returns have not been audited by the Internal
Revenue Service or any other taxing authority and no notice of audit has been
received. The Company has received no notice of any disputes, deficiency
assessments, or proposed adjustments to taxes payable by the Company.
3.14 EMPLOYEES AND CONSULTANTS. Except as set forth on Item 3.14 of the
Disclosure Schedule, the Company has not entered into any arrangement with any
present or former employee that will result in any obligation of the Company to
make any payment to such employee upon termination. True and complete copies of
all written employment agreements with the key executive officers of the Company
listed on Item 3.14 of the Disclosure Schedule have been delivered to Purchasers
prior to the Closing Date. To the Company's knowledge, no employee of or
consultant to the Company is in material violation of any term of any employment
contract or any other contract or agreement relating to the relationship of any
such employee or consultant with the Company. The Company has not received
notice that any executive officer intends to terminate his employment with the
Company, nor does the Company have any present intention to terminate the
employment of any executive officer. To the
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Company's knowledge, none of its employees are obligated under any contract
(including licenses, covenants, or commitments of any nature) or other
agreement, or subject to any judgment, decree, or order of any court or
administrative agency, that would interfere with the use of his/her reasonable
diligence to promote the interests of the Company or that would conflict with
the Company's business as proposed to be conducted. Neither the execution nor
delivery of this Agreement, nor the carrying on of the Company's business by the
employees of the Company, nor the conduct of the Company's business as proposed,
will, to the Company's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant, or instrument under which any of such employees is obligated, which
conflict, breach, or default would be materially adverse to the Company.
3.15 EMPLOYEE BENEFITS MATTERS. Except as set forth on Item 3.15 of the
Disclosure Schedule, the Company does not maintain or contribute to any plan or
arrangement that constitutes an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, and is not obligated to contribute to or accrue or pay
benefits under any deferred compensation or retirement funding arrangement.
3.16 REGISTRATION RIGHTS. Except as required pursuant to the Investor
Rights Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register any of the Company's presently outstanding
securities or any of its securities that may hereafter be issued.
3.17 GOVERNMENTAL APPROVALS/THIRD PARTY CONSENTS. All consents,
approvals, or authorizations of, or registrations, qualifications, designations,
declarations, or filings with any federal or state governmental authority, and
all consents, approvals or authorizations of any third party required in
connection with the execution of the Financing Documents and the performance of
the transactions contemplated hereby (including the issuance and sale of the
Shares) have been obtained by the Company. The Company has, or has rights to
acquire, all licenses, permits, and other similar authority necessary for the
conduct of its business as now being conducted by it and as planned to be
conducted, the lack of which could materially and adversely affect the
operations or condition, financial or otherwise, of the Company, and it is not
in default in any material respect under any of such licenses, permits or other
similar authority .
3.18 COMPLIANCE WITH LAWS. The Company (a) has complied with and is in
compliance in all material respects with all foreign, federal, state and local
statutes, laws, ordinances, regulations, rules, judgments, orders and decrees
applicable to it and its assets, business and operations, and (b) has received
no written notice of any claim of default under or violation of any statute,
law, ordinance, regulation, rule, judgment, order or decree except for any such
noncompliance or claim of default or violation, if any, which in the aggregate
do not and will not have a material adverse effect the property , operations,
financial condition or prospects of the Company.
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3.19 ENVIRONMENTAL MATTERS. The Company is in compliance in all
material respects with all environmental and occupational health and safety laws
and, to its knowledge, except as set forth on Item 3.19 of the Disclosure
Schedule, no material expenditures are or will be required in order to comply
with any such laws.
3.20 OFFERING VALID. Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 hereof, the offer, sale and
issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Securities Act") and will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
3.21 ACCURACY OF INFORMATION FURNISHED. The Financing Documents, as
well as any exhibit, certificate, written statement, material or information
furnished by or on behalf of the Company pursuant thereto or in connection with
the transactions contemplated thereby to the Purchasers, do not contain any
untrue statement of a material fact or omit to state any material fact that is
necessary to make the statements contained herein or therein not misleading.
3.22 INSURANCE. The Company has obtained fire and casualty insurance
policies with coverage customary for companies similarly situated to the
Company.
3.23 INVESTMENT COMPANY ACT. The Company is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASERS.
Each Purchaser makes the following representations and warranties to
the Company as to itself that:
4.1. REQUISITE POWER AND AUTHORITY. Purchaser is an individual, or a
corporation, limited liability company, or limited partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation, and has all requisite partnership or corporate power and authority to
own its assets and operate its business. Purchaser has all necessary corporate
or partnership power and authority under all applicable provisions of law to
execute and deliver this Agreement and the Financing Documents and to carry out
their provisions. All action on Purchaser's part required for the lawful
execution and delivery of this Agreement and the Financing Documents have been
or will be effectively taken prior to each Closing Date. Upon their execution
and delivery, this Agreement and the Financing Documents will be valid and
binding obligations of Purchaser, enforceable in accordance with their terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights; (ii) general principles of equity that restrict the
availability of equitable remedies; and (iii) to the extent that the
enforceability of the indemnification provisions of the Investor Rights
Agreement may be limited by applicable laws.
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4.2. INVESTMENT REPRESENTATIONS. Purchaser understands that the Shares
have not been registered under the Securities Act. Purchaser also understands
that the Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon Purchaser's
representations contained in this Agreement. Purchaser hereby represents and
warrants as follows:
(a) PURCHASER BEARS ECONOMIC RISK. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares are registered pursuant to the
Securities Act, or an exemption from registration is available. Purchaser
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow Purchaser to transfer all or any portion of the Shares
under the circumstances, in the amounts or at the times Purchaser might propose.
(b) ACQUISITION FOR OWN ACCOUNT. Purchaser is acquiring the
Shares for Purchaser's own account for investment only, and not with a view
towards their distribution.
(c) PURCHASER CAN PROTECT ITS INTEREST. Purchaser represents
that by reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement and the Financing Documents.
(d) ACCREDITED INVESTOR. Purchaser represents that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(e) COMPANY INFORMATION. Purchaser has received and read the
Financial Statements and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser also has had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(f) RULE 144. Purchaser acknowledges and agrees that the
Shares must be held indefinitely unless they are subsequently registered under
the Securities Act or an exemption from such registration is available.
Purchaser has been advised or is aware of the provisions of Rule 144 promulgated
under the Securities Act, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being through an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Exchange Act) and the number of shares
being sold during any three-month period not exceeding specified limitations.
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(g) RESIDENCE. The residence of Purchaser (if an individual),
or the office or offices of the Purchaser in which its investment decision was
made is located at the address or addresses of the Purchaser as stated on the
signature pages of this Agreement.
4.3 RESTRICTIVE LEGENDS. Purchaser agrees to the imprinting, so long as
required by law, of a legend on certificates representing all of the Shares or
the Conversion Stock to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT
OR SUCH LAWS.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
SHAREHOLDERS AGREEMENT DATED AS OF MAY 18, 1998 AS MAY BE AMENDED FROM TIME TO
TIME, AND SAID SHARES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT.
SUCH AGREEMENT MAY BE EXAMINED AT THE PRINCIPAL PLACE OF BUSINESS OF THE COMP
ANY AND A COPY THEREOF WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF THIS
CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR
REGISTERED OFFICE OF A WRITTEN REQUEST FROM THE SHAREHOLDER."
SECTION 5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Purchasers'
obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the Closing Date
with the same force and effect as if they had been made as of the Closing Date,
and the Company shall have performed all obligations and conditions herein
required to be performed or observed by it on or prior to the Closing.
(b) LEGAL INVESTMENT. On the Closing Date, the sale and
issuance of the Shares, and the proposed issuance of the Conversion Shares,
shall be legally permitted by all laws and regulations to which Purchasers and
the Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the
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transactions contemplated by the Agreement and the Financing Documents (except
for such as may be properly obtained subsequent to the Closing).
(d) FILING OF AMENDED CERTIFICATE. The Amended Certificate
shall have been filed with the Secretary of State of the State of Delaware.
(e) CORPORATE DOCUMENTS. The Company shall have delivered to
Purchasers or their counsel, copies of all corporate documents of the Company as
Purchasers shall reasonably request.
(f) RESERVATION OF CONVERSION SHARES. The Conversion Shares
issuable upon conversion of the Shares shall have been duly authorized and
reserved for issuance upon such conversion.
(g) CERTIFICATES. The Company shall have delivered to
Purchasers:
(1) proof of filing of the Amended Certificate, and a
certificate, as of the most recent practical date, of the Secretary of State of
Delaware as to the Company's good standing;
(2) a certificate of the Secretary of the Company
dated as of the Closing Date, certifying as to (i) the incumbency of officers of
the Company executing the Financing Agreements and all other documents executed
and delivered in connection therewith; (ii) a copy of the Amended Certificate,
in effect as of the Closing; (iii) a copy of the Bylaws of the Company, in
effect on the Closing Date; and (iv) a copy of the resolutions or consents of
the Board of Directors and stockholders of the Company authorizing and approving
the Company's execution, delivery and performance of the Financing Agreements;
and
(3) a certificate, executed by the President of the
Company as of the Closing Date, certifying to the fulfillment of all of the
conditions of the Purchasers' obligations under this Agreement, as set forth in
this Section 5.
(h) INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
shall have been executed and delivered by the parties thereto.
(i) SHAREHOLDERS AGREEMENT. The Shareholders Agreement shall
have been executed and delivered by the parties thereto.
(j) LEGAL OPINION. The Purchasers shall have received from
legal counsel to the Company an opinion addressed to them, dated as of the
Closing Date, in substantially the form attached hereto as Exhibit G.
(k) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form
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to the Purchasers and their special counsel, and the Purchasers and their
special counsel shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request.
5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AT CLOSING. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
satisfaction, on or prior to the Closing, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties made by Purchasers in Section 4 hereof shall be true and correct
in all material respects at the Closing Date, with the same force and effect as
if they had been made on and as of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchasers shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by Purchasers on or before the Closing.
(c) FILING OF AMENDED CERTIFICATE. The Amended Certificate
shall have been filed with the Secretary of State of the State of Delaware.
(d) INVESTOR RIGHTS AGREEMENT. The Investor Rights Agreement
shall have been executed and delivered by the parties thereto.
(e) SHAREHOLDERS AGREEMENT. The Shareholders Agreement shall
have been executed and delivered by the parties thereto.
(f) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement and the Financing
Documents (except for such as may be properly obtained subsequent to the
Closing).
(g) MINIMUM INVESTMENT. The Purchasers shall purchase at least
2,000,000 Shares in the aggregate at the Closing.
SECTION 6. COVENANTS OF THE COMPANY FOR THE PERIOD FOLLOWING CLOSING.
Until the date upon which all Shares held by Purchasers (including any
capital stock of the Company issued upon conversion of the Shares) are no longer
outstanding, the Company covenants to each Purchaser and agrees as follows:
6.1 USE OF PROCEEDS. The Company shall use all proceeds from the sale
of the Shares to Purchasers pursuant to this Agreement for financing of
expenditures related to product development and general working capital.
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6.2 MAINTENANCE OF CORPORATE STATUS. The Company shall maintain, and
shall cause each affiliate to maintain, its corporate or partnership existence
in good standing or effective under the laws of its jurisdiction of organization
and any other states or jurisdictions in which its failure to qualify as a
foreign corporation or entity would have a material adverse effect on its
operations or financial condition.
6.3 COMPLIANCE WITH GOVERNING DOCUMENTS. The Company shall comply, and
shall cause each affiliate to comply, in all material respects with its Amended
Certificate, Bylaws or other governing documents.
6.4 COMPLIANCE WITH LAWS, LICENSES AND PERMITS; NO INFRINGEMENT. The
Company shall comply with all applicable federal, state, local, foreign and
other laws, regulations and ordinances, and with all applicable federal, state,
local and foreign governmental licenses and permits necessary for conducting its
business, except to the extent that any noncompliance would not have a material
adverse effect upon the Company. The Company shall not knowingly engage in any
activities that infringe upon the intellectual property rights of any other
person, corporation, partnership or other entity which could have a material
adverse effect upon the Company.
6.5 DISCHARGE OF OBLIGATIONS. The Company shall pay and discharge all
taxes, assessments, and governmental charges lawfully levied or imposed upon it
(in each case before they become delinquent and before penalties accrue), all
lawful claims for labor, materials, supplies and rents, and all other debts and
liabilities that if unpaid would by law be a lien or charge upon any of the
asserts or properties of the Company or lead to suspension of the business of
the Company (except to the extent contested in good faith by the Company and for
which adequate reserves are established).
6.6 MAINTENANCE OF PROPERTIES. The Company shall maintain all real and
personal property used in the business of the Company in good operating
condition, and shall make all repairs, renewals, replacements, additions and
improvements to those properties as are necessary or appropriate in the ordinary
course of business.
6.7 MAINTENANCE OF PROPRIETARY INFORMATION. The Company shall maintain
all proprietary information, and all applications and registrations therefor
owned or held by the Company, in full force and effect, except as otherwise
determined in the ordinary course of business. The Company shall not encumber or
license others to use its proprietary information owned by it except in the
ordinary course of the Company's business, and shall maintain the
confidentiality and trade secret status of all proprietary information that is
confidential except contemplated hereby. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.
6.8 COMPENSATION OF DIRECTORS. Each member of the Board of Directors
shall be entitled to (a) customary liability insurance obtained at commercially
reasonable rates, and (b) reimbursement by the Company for all out-of-pocket
expenses, including, without limitation,
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travel expenses, incurred by such director in connection with the performance of
such directors duties, subject to approval by the Board of Directors, such
approval not be unreasonably withheld.
6.9 BOOKS AND RECORDS. The Company shall, and shall cause each
affiliate to, keep proper books of records and accounts, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each affiliate, in accordance with generally
accepted accounting principles in effect from time to time. The Company shall
provide Purchasers with access to all such books and records and allow
Purchasers to make copies and abstracts thereof at reasonable times.
SECTION 7. MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Colorado as such laws are applied to agreements between Colorado
residents entered into and performed entirely in Colorado, except that the
Delaware General Corporation Law will govern as to matters of corporate law.
7.2 SURVIVAL. The representations, warranties, covenants and agreement
made herein shall survive any investigation made by any Purchaser and the
closing of the transactions contemplated hereby. All statements as to factual
matters contained in any certificate or other instrument delivered by or on
behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
7.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the Financing Documents and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
7.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.6 AMENDMENT AND WAIVER. This Agreement may be amended or modified
only upon the written consent of the Company, and the holders of at least
sixty-six percent (66%) of the Shares (treated as if converted and including any
Conversion Shares into which the Shares have been converted that have not been
sold).
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7.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the Financing
Documents or the Amended Certificate, shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent or approval of any kind or character on any Purchaser's
part of any breach, default or noncompliance under this Agreement, the Financing
Documents or under the Amended Certificate or any waiver on such party's part of
any provisions or conditions of the Agreement, the Financing Documents, or the
Amended Certificate must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, the Financing Documents, the Amended Certificate, by law, or
otherwise afforded to any party, shall be cumulative and not alternative.
7.8 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(iii) three (3) business days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (iv) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent
to the Company and to Purchasers at the addresses set forth on the signature
pages attached hereto or at such other address as the Company or Purchaser may
designate by ten (10) days advance written notice to the other parties hereto.
7.9 EXPENSES. The Company hereby agrees to reimburse each Purchaser for
its out-of-pocket expenses incurred in connection with the transactions
contemplated hereby, including all expenses incurred in connection with its due
diligence examination of the Company, the preparation and negotiation of the
Financing Documents, including the reasonable fees and expenses of special
counsel to the Purchasers, (▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇) and in connection
with the enforcement of rights and remedies of the Purchasers hereunder and
under the Shareholders Agreement and all other documents evidencing the
transactions contemplated herein.
7.10 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold each Purchaser harmless against any loss, liability, damage or expense
(including reasonable legal fees and costs) which such Purchasers may suffer,
sustain or become subject to as a result of or in connection with the breach by
the Company of any representation, warranty, covenant or agreement of the
Company contained in this Agreement or the Financing Documents.
7.11 INDEMNIFICATION BY THE PURCHASERS. Each Purchaser, severally and
not jointly, agrees to indemnify and hold the Company harmless against any loss,
liability, damage or expense (including reasonable legal fees and costs) which
the Company may suffer, sustain or become subject to as a result of or in
connection with the breach by such Purchaser of any representation, warranty,
covenant or agreement of such Purchaser contained in this Agreement or the
Financing Documents.
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7.12 TITLES AND SUBTITLES. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.13 COUNTERPARTS. This Agreement may be delivered via facsimile and
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
7.14 BROKER'S FEES. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section 7.14 being untrue.
7.15 ARBITRATION. The parties hereby covenant and agree that any legal
suit, dispute, claim, demand, controversy or cause of action of every kind and
nature whatsoever, known or unknown, fixed or contingent, that any party may now
have or at any time in the future claim to have based in whole or in part, or
arising from or out of or that in any way is related to the negotiations,
execution, interpretation or enforcement of this Agreement (collectively, the
"Disputes") shall be completely and finally settled by submission of any such
Disputes to arbitration under the rules of the American Arbitration Association
("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall
be chosen by mutual agreement of the parties in accordance with AAA rules.
Unless the parties agree otherwise, the arbitration proceedings shall take place
in Denver, Colorado. The arbitrator shall apply Colorado law to all issues in
dispute, in accordance with Section 7.1 above. Notice of demand for arbitration
shall be filed in writing with the other party to this Agreement and with the
AAA In no event shall the demand for arbitration be made after the date when
institution of legal or equitable proceedings based on such Dispute would be
barred by the applicable statute of limitations. The findings of the arbitrator
shall be final and binding on the parties. Judgment on such award may be entered
in any court of competent jurisdiction, or application may be made to that court
for a judicial acceptance of the award and an order or enforcement, as the party
seeking to enforce that award may elect. The prevailing party in any such action
shall be entitled to receive from the losing party all reasonable costs and
expenses, including the reasonable fees of attorneys, accountants, and other
experts, incurred by the prevailing party in investigating and prosecuting (or
defending) such action, together with any such fees which may be incurred in
enforcing any award of judgment.
7.16 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that it
is not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company.
Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Shares and Conversion
Shares.
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7.17 PRONOUNS. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as the identity of the parties hereto may require.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above first written.
COMPANY: INVESTORS:
ARRAY BIOPHARMA, INC, a Delaware ▇▇▇▇▇▇▇ HEALTHCARE II, L.P.
Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title:
------------------------------
ARCH VENTURE FUND III, L.P.
By: Arch Venture Partners, LLC, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: General Managing Director
------------------------------
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. FISHERMAN
---------------------------------
Name: ▇▇▇▇▇ ▇. Fisherman
-------------------------------
Title: Vice President
------------------------------
MITSUI & CO. (U.S.A.), INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Title: General Manager
------------------------------
FALCON TECHNOLOGY PARTNERS, L.P.,
a Delaware limited partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Partner
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BOULDER VENTURES II, L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
BOULDER VENTURES II, (ANNEX) L.P.,
A DELAWARE LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
THE ▇▇▇▇▇▇▇▇▇ FAMILY, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D., Manager
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, PH.D.
/s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇, PH.D.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, PH.D.
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇, PH.D.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT A
[AMENDED AND RESTATED CERTIFICATE OF INCORPORATION]
25
EXHIBIT B
[SCHEDULE OF PURCHASERS]
26
EXHIBIT C
[DISCLOSURE SCHEDULE]
27
EXHIBIT D
[AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
28
EXHIBIT E
[AMENDED AND RESTATED SHAREHOLDERS AGREEMENT]
29
EXHIBIT F
[CAPITALIZATION TABLE POST-CLOSING]
30
EXHIBIT G
[FORM LEGAL OPINION]