EXHIBIT 4.03
THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of February 14, 1997 by and among
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Centaur Pharmaceuticals, Inc., a Delaware corporation (the "Company"), the
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persons listed on Exhibit A-1 attached hereto (the "Prior Investors"), the
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persons listed on Exhibit A-2 attached hereto (the "New Investors"), the persons
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listed on Exhibit B attached hereto (the "Stockholders"), Aberlyn Capital
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Management Limited Partnership, a Delaware limited partnership ("Aberlyn"), and
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Prospektiva Investments ("Prospektiva"). The New Investors and the Prior
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Investors are collectively referred to herein as the "Investors." Aberlyn and
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Prospektiva are collectively referred to herein as the "Warrant Holders."
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R E C I T A L S
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A. The Company, the Prior Investors, certain of the Stockholders and
Aberlyn are parties to the Amended and Restated Registration Rights Agreement
dated as of December 5, 1994 (the "Prior Agreement").
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B. The New Investors have agreed to purchase from the Company, and
the Company has agreed to sell to the New Investors, shares of the Company's
Series D Preferred Stock ("Series D Stock") on the terms and conditions set
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forth in that certain Series D Preferred Stock Purchase Agreement, dated of even
date herewith, by and among the Company and the New Investors (the "Series D
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Agreement").
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C. The Series D Agreement provides that, as a condition of Closing
under such Series D Agreement, the Company will enter into this Agreement and
the New Investors will be granted the rights set forth herein which shall be
pari passu with rights granted to the Prior Investors with respect to shares of
the Company's Series A Preferred Stock (the "Series A Stock"), the Company's
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Series B Preferred Stock (the "Series B Stock") and/or the Company's Series C
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Preferred Stock (the "Series C Stock") held by the Prior Investors, except that
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the New Investors shall be granted a separate S-3 registration right.
D. The Company and the undersigned parties hereto who are parties to
the Prior Agreement desire to enter into this Agreement in order to amend,
restate and replace their rights and obligations under the Prior Agreement with
the rights and obligations set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereby agree as follows:
1.1 INFORMATION RIGHTS.
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1.1 FINANCIAL INFORMATION. The Company covenants and agrees that,
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commencing on the date of this Agreement, for so long as any Investor holds at
least the
designated number of shares of Series A Stock issued to it under that certain
Series A Stock Purchase Agreement dated as of August 31, 1992 (the "Series A
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Agreement") and/or shares of Series B Stock issued to it under that certain
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Series B Stock Purchase Agreement dated as of July 16, 1993 (the "Series B
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Agreement") and/or shares of Series C Stock issued to it under that certain
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Series C Stock Purchase Agreement dated as of December 5, 1994 (the "Series C
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Agreement") and/or shares of Series D Stock issued to it under the Series D
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Agreement and/or the equivalent number (on an as-converted basis) of shares of
Common Stock of the Company ("Common Stock") issued upon the conversion of such
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shares of Series A Stock and/or Series B Stock and/or Series C Stock and/or
Series D Stock ("Conversion Stock"), or any combination thereof (collectively,
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the "Series ABCD Based Stock"), the Company will:
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(a) Annual Reports. Furnish to any Investor holding at least fifty
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thousand (50,000) shares of Series ABCD Based Stock, as soon as practicable and
in any event within ninety (90) days after the end of each fiscal year of the
Company, a consolidated Balance Sheet as of the end of such fiscal year, a
consolidated Statement of Income and a consolidated Statement of Cash Flows of
the Company and its subsidiaries for such year, setting forth in each case in
comparative form the figures from the Company's previous fiscal year (if any),
all prepared in accordance with generally accepted accounting principles and
practices and audited by nationally recognized independent certified public
accountants;
(b) Quarterly Reports. Furnish to any Investor holding at least fifty
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thousand (50,000) shares of Series ABCD Based Stock, as soon as practicable, and
in any case within forty-five (45) days of the end of each fiscal quarter of the
Company (except the last quarter of the Company's fiscal year) the following:
(i) quarterly unaudited financial statements, including an unaudited Balance
Sheet, an unaudited Statement of Income and an unaudited Statement of Cash
Flows, all prepared in accordance with generally accepted accounting principles
and practices, other than footnote presentation and year-end adjustments,
consistently applied and all in reasonable detail; (ii) a comparison of such
statements to the Company's operating plan and budget; and (iii) a certificate
of the Chief Financial Officer of the Company explaining any significant
differences in the statements from the Company's operating plan and budget for
the period and certifying that such statements fairly present the consolidated
financial position and consolidated financial results of the Company for the
fiscal quarter covered;
(c) Monthly Reports. Furnish to any Investor holding at least one
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hundred thousand (100,000) shares of Series ABCD Based Stock, as soon as
practicable, and in any case within forty-five (45) days of the end of each
calendar month (except the last month of the Company's fiscal year) the
following: (i) monthly unaudited financial statements, including an unaudited
Balance Sheet, an unaudited Statement of Income and an unaudited Statement of
Cash Flows, all prepared in accordance with generally accepted accounting
principles and practices, other than footnote presentation and year-end
adjustments, consistently applied and all in reasonable detail; (ii) a
comparison of such statements to the Company's operating plan and budget; and
(iii) a certificate of the Chief Financial Officer of the Company certifying
that such statements fairly present the
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consolidated financial position and consolidated financial results of the
Company for the fiscal period covered; and
(d) Annual Budget. Furnish to any Investor holding at least one
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hundred thousand (100,000) shares of Series ABCD Based Stock, as soon as
practicable and in any event no later than thirty (30) days after the close of
each fiscal year of the Company, an annual operating plan and budget, prepared
on a monthly basis, for the next immediate fiscal year. The Company shall also
furnish to such Investor, within a reasonable time of its preparation,
amendments to the annual budget, if any.
(e) Confidentiality. Each Investor agrees to hold all information
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received pursuant to this Section in confidence, not to use such information for
any purpose other than monitoring and/or evaluating its investment in the
Company and not to disclose any of such information to any third party, except
to the extent such information may be made publicly available by the Company;
provided, however, that, notwithstanding the foregoing and subject to the
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limitations hereinafter stated, nothing herein shall limit or impair any
Investor from disclosing (i) any information that is rightfully obtained from a
third party who is not obligated to maintain its confidentiality; (ii) any
information that is or that becomes generally available to the public other than
as a result of a breach by an Investor of its obligations under this Section
1.1(e); (iii) any information (including financial information) to its partners,
shareholders or advisors which such Investor discloses to its partners,
shareholders and/or advisors generally, provided that any such partner,
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shareholder and/or advisor receiving information pursuant to this Section agrees
to be bound by this or a substantially similar non-use and confidentiality
provision, and provided further that no Investor shall disclose any proprietary
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and confidential technical/scientific information without the Company's written
approval; or (iv) any information required to be disclosed by any governmental
body, provided that the Company is given fifteen (15) days advance written
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notice unless such notice is not legally possible.
1.2 INSPECTION RIGHTS. The Company shall permit each Investor holding
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at least one hundred thousand (100,000) shares of Series ABCD Based Stock, at
such Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers and senior management, all at such
reasonable times as may be requested by such Investor. Each Investor agrees to
hold all information received from such inspections in confidence, not to use
such information for any purpose other than monitoring and/or evaluating its
investment in the Company, and not to disclose any of such information to any
third party, ex cept to the extent such information may be made publicly
available by the Company; provided, however, that, notwithstanding the foregoing
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and subject to the limitations hereinafter stated, nothing herein shall limit or
impair any Investor from disclosing (i) any information that is rightfully
obtained from a third party who is not obligated to maintain its
confidentiality; (ii) any information that is or that becomes generally
available to the public other than as a result of a breach by an Investor of its
obligations under this Section 1.2; (iii) any information (including financial
information) to its partners, shareholders or advisors which such Investor
discloses to its partners, shareholders and/or advisors generally, provided that
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any such partner, shareholder and/or
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advisor receiving information pursuant to this Section agrees to be bound by
this or a substantially similar non-use and confidentiality provision, and
provided further that no Investor shall disclose any proprietary and
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confidential technical/scientific information without the Company's written
approval; or (iv) any informati on required to be disclosed by any governmental
body, provided that the Company is given fifteen (15) days advance written
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notice unless such notice is not legally possible.
1.3 TERMINATION OF CERTAIN RIGHTS. The Company's obligations under
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Sections 1.1 and 1.2 above will terminate upon the closing of the Company's
initial public offering of Common Stock pursuant to an effective registration
statement filed under the U.S. Securities Act of 1933, as amended (the
"Securities Act"). The Company's obligations under Sections 1.1 and 1.2 above
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will also terminate immediately prior to the closing of the sale of not less
than 1.2 million shares of the Company's Common Stock for the account of the
Company at a price to the purchaser (before deduction of underwriter discounts,
commissions and the like) of not less than $11.00 per share; provided that such
sale occurs on or after September 25, 1998 and on or before December 15, 1998.
1.4 RULE 144A INFORMATION. The Company agrees to provide each
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Investor, upon request, with such written information as may be required in
order to permit such Investor to resell any shares of Series A Stock, Series B
Stock, Series C Stock, Series D Stock or Conversion Stock pursuant to Rule 144A
promulgated under the Securities Act.
1.5 NON-LIMITATION. The provisions of this Section 1 shall not be in
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limitation of any rights which an Investor may have with respect to the books of
account and records of the Company and its subsidiaries (if any) or to inspect
their properties and assets or discuss their affairs, finances and accounts,
under the laws of the respective jurisdictions in which the Company and its
subsidiaries (if any) are incorporated.
2. REGISTRATION RIGHTS.
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2.1 DEFINITIONS. For purposes of this Section 2:
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(a) Registration. The terms "register," "registered," and
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"registration" refer to a registration effected by preparing and filing a
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registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
(b) Registrable Securities. The term "Registrable Securities"
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means: (1) all the shares of Common Stock of the Company issued or issuable upon
the conversion of any shares of Series A Stock issued under the Series A
Agreement that are now owned or may hereafter be acquired by any Investor or any
Investor's permitted successors and assigns; (2) all the shares of Common Stock
of the Company issued or issuable upon the conversion of any shares of Series B
Stock issued under the Series B Agreement that are now owned or may hereafter be
acquired by any Investor or any Investor's permitted successors and assigns; (3)
all the shares of Common Stock of the Company issued or issuable upon the
conversion of any shares of Series C Stock issued under the Series C Agreement
that are now owned or may hereafter be acquired by any Investor or any
Investor's permitted successors and assigns; (4) all the shares of Common Stock
of the Company issued or issuable upon the conversion of any shares of Series D
Stock issued under the Series D Agreement that are now owned or may hereafter be
acquired by any Investor or any Investor's permitted successors or assigns; (5)
the shares of Common Stock now held by the Stockholders and set forth in
Exhibit B attached hereto
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(the "Stockholders' Shares"); (6) up to 33,603 shares of the Company's Common
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Stock that may be issued to Aberlyn (the "Aberlyn Shares") pursuant to that
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certain warrant dated as of December 5, 1994 (the "Aberlyn Warrant"); (7) up to
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10,000 shares of the Company's Common Stock that may be issued to Prospektiva
(the "Prospektiva Shares") pursuant to that certain Consulting Warrant Agreement
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dated August 12, 1996 (the "Prospektiva Warrant"); and (8) any shares of Common
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Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, all such
shares of Common Stock described in clause (1), (2), (3), (4), (5), (6) or (7)
of this subsection (b); excluding in all cases, however, any Registrable
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Securities sold by a person in a transaction in which rights under this Section
2 are not assigned in accordance with this Agreement or any Registrable
Securities sold to the public or sold pursuant to Rule 144 promulgated under the
Securities Act; provided, however, that notwithstanding anything herein to the
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contrary, the Stockholders' Shares and any shares of Common Stock described in
clause (8) of this Section 2(b) that are issued in respect of any Stockholders'
Shares (which with the Stockholders' Shares are collectively hereinafter
referred to as the "Excluded Shares"), shall not be Registrable Securities for
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purposes of Sections 2.2 or 2.4 of this Agreement; and provided, further, that
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notwithstanding anything herein to the contrary, the Aberlyn Shares and the
Prospektiva Shares (collectively, the "Warrant Shares") and any shares of Common
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Stock described in clause (8) of this Section 2(b) that are issued in respect of
any Warrant Shares (which with the Warrant Shares are collectively hereinafter
referred to as the "Excluded Warrant Shares"), shall not be Registrable
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Securities for purposes of Sections 2.2, 2.4 and 3 of this Agreement.
(c) Registrable Securities Then Outstanding. The number of shares of
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"Registrable Securities then outstanding" shall mean the number of shares of
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Common Stock which are Registrable Securities and (1) are then issued and
outstanding or (2) are then issuable pursuant to the exercise or conversion of
then outstanding and then exercisable options, warrants or convertible
securities.
(d) Holder. For purposes of this Section 2 and Section 3 hereof, the
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term "Holder" means any person owning of record Registrable Securities that have
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not been sold to the public or pursuant to Rule 144 promulgated under the
Securities Act or any assignee of record of such Registrable Securities to whom
rights under this Section 2 have been duly assigned in accordance with this
Agreement; provided, however, that for purposes of this Agreement, a record
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holder of shares of Series A Stock and/or Series B Stock and/or Series C Stock
and/or Series D Stock convertible into such Registrable Securities shall be
deemed to be the Holder of such Registrable Securities; provided, further, that
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(i) a holder of Excluded Shares (as defined in Section 2.1(b)) shall not be a
Holder with respect to such Excluded Shares for purposes of Sections 2.2 or 2.4
of this Agreement; (ii) a holder of Excluded Warrant Shares (as defined in
Section 2.1(b)) shall not be a Holder with respect to such Excluded Warrant
Shares for purposes of Sections 2.2, 2.4 and 3 of this Agreement; (iii) the
Company shall in no event be obligated to register shares of Series A Stock
and/or Series B Stock and/or Series C Stock and/or Series D Stock; and (iv)
Holders of Registrable Securities will not be required to convert their shares
of Series A Stock and/or Series B Stock and/or Series C Stock and/or Series D
Stock into
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Common Stock in order to exercise the registration rights granted hereunder
until immediately before the closing of the offering to which the registration
relates.
(e) Form S-3. The term "Form S-3" means such form under the
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Securities Act as is in effect on the date hereof or any successor registration
form under the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(f) SEC. The term "SEC" or "Commission" means the U.S. Securities
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and Exchange Commission.
2.2 DEMAND REGISTRATION.
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(a) Request by Holders. If the Company shall receive at any
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time after the earlier of (i) August 31, 1997, or (ii) six (6) months after the
effective date of the Company's initial public offering of its securities
pursuant to a registration filed under the Securities Act, a written request
from the Holders of at least forty percent (40%) of the Registrable Securities
then outstanding that the Company file a registration statement under the
Securities Act covering the registration of Registrable Securities pursuant to
this Section 2.2, then the Company shall, within ten (10) business days of the
receipt of such written request, give written notice of such request ("Request
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Notice") to all Holders, and effect, as soon as practicable, the registration
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under the Securities Act of all Registrable Securities which Holders request to
be registered and included in such registration by written notice given by such
Holders to the Company within thirty (30) days after receipt of the Request
Notice, subject only to the limitations of this Section 2.2; provided that the
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Registrable Securities requested by all Holders to be registered pursuant to
such request must either (i) be at least thirty percent (30%) of all Registrable
Securities then outstanding or (ii) have an anticipated aggregate public
offering price (before any underwriting discounts and commissions) of not less
than $3,000,000.
(b) Underwriting. If the Holders initiating the registration
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request under this Section 2.2 ("Initiating Holders") intend to distribute the
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Registrable Securities covered by their request by means of an underwriting,
then they shall so advise the Company as a part of their request made pursuant
to this Section 2.2 and the Company shall include such information in the
written notice referred to in subsection 2.2(a). 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
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein. All Holders proposing
to distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 2.2, if the underwriter(s) advise(s) the Company
in writing that marketing factors require a limitation of the number of
securities to be underwritten then the Company shall so advise all Holders of
Registrable Securities which would otherwise be registered and underwritten
pursuant hereto, and the number of
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Registrable Securities that may be included in the underwriting shall be reduced
as required by the underwriter(s) and allocated among the Holders of Registrable
Securities on a pro rata basis according to the number of Registrable Securities
then outstanding held by each Holder requesting registration (including the
Initiating Holders); provided, however, that the number of shares of Registrable
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Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first entirely excluded
from the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
(c) Maximum Number of Demand Registrations. The Company is
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obligated to effect only two (2) such registrations pursuant to this Section
2.2.
(d) Deferral. Notwithstanding the foregoing, if the Company
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shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 2.2, a certificate signed by the President or Chief
Executive Officer of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed and it
is therefore essential to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for a period of not more
than 120 days after receipt of the request of the Initiating Holders; provided,
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however, that the Company may not utilize this right more than once in any
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twelve (12) month period.
(e) Expenses. All expenses incurred in connection with a
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registration pursuant to this Section 2.2, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders (but excluding
underwriters' discounts and commissions), shall be borne by the Company. Each
Holder participating in a registration pursuant to this Section 2.2 shall bear
such Holder's proportionate share (based on the total number of shares sold in
such registration other than for the account of the Company) of all discounts,
commissions or other amounts payable to underwriters or brokers in connection
with such offering. Notwithstanding the foregoing, the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to this Section 2.2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered, unless the Holders of a majority of the Registrable Securities then
outstanding agree to forfeit their right to one (1) demand registration pursuant
to this Section 2.2 (in which case such righ t shall be forfeited by all Holders
of Registrable Securities); provided, further, however, that if at the time of
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such withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company not known to the Holders at the
time of their request for such registration and have withdrawn their request for
registration with reasonable promptness after learning of such material adverse
change, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to this Section 2.2.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
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Registrable Securities in writing at least thirty (30) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities
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of the Company (including, but not limited to, registration statements relating
to secondary offerings of securities of the Company, but excluding registration
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statements relating to any registration under Section 2.2 or Section 2.4 of this
Agreement or to any employee benefit plan or a corporate reorganization;
provided, however, that notwithstanding the foregoing, the registration rights
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provided in this Section 2.3 to the Warrant Holders shall apply to registrations
under Section 2.4 of this Agreement) and will afford each such Holder an
opportunity to include in such registration statement all or any part of the
Registrable Securities then held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall, within thirty (30) days after receipt of the above-
described notice from the Company, so notify the Company in writing, and in such
notice shall inform the Company of the number of Registrable Securities such
Holder wishes to include in such registration statement. If a Holder decides not
to include all of such Holder's Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(a) Underwriting. If a registration statement under which the
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Company gives notice under this Section 2.3 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 2.3 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 Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
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Company, and second, to each of the Holders requesting inclusion of their
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Registrable Securities in such registration statement on a pro rata basis based
on the total number of Registrable Securities then held by each such Holder;
provided, however, that the right of the underwriters to exclude shares
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(including Registrable Securities) from the registration and underwriting as
described above shall be restricted so that the number of Registrable Securities
included in any such registration is not reduced below twenty percent (20%) of
the shares included in the registration, except for a registration relating to
the Company's initial public offering, from which all Registrable Securities may
be excluded. If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to the Company and
the underwriter, delivered at least ten (10) business days prior to the
effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder which is a partnership or corporation,
the partners, retired partners and shareholders of such Holder, or the estates
and family members of any such partners and retired partners and any trusts for
the benefit of any of
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of the foregoing persons shall be deemed to be a single "Holder", and any pro
rata reduction with respect to such "Holder" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "Holder", as defined in this sentence.
(b) Expenses. All expenses incurred in connection with a
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registration pursuant to this Section 2.3 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company and reasonable fees and
disbursements of one (1) counsel for the selling Holders, shall be borne by the
Company.
2.4 FORM S-3 REGISTRATION. In case the Company shall receive from any
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Holder or Holders of at least (i) twenty percent (20%) of all Registrable
Securities or (ii) a majority of the Registrable Securities that are issued or
issuable upon conversion of the Series D Stock, a written request or requests
that the Company effect a registration on Form S-3 and any related qualification
or compliance with respect to all or a part of the Registrable Securities owned
by such Holder or Holders, then the Company will:
(a) Notice. Promptly give written notice of the proposed
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registration and the Holder's or Holders' request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(b) Registration. As soon as practicable, effect such
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registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within thirty (30) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
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obligated to effect any such registration, qualification or compliance pursuant
to t his Section 2.4:
(1) if Form S-3 is not available for such offering by the
Holders;
(2) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $500,000;
(3) if the Company shall furnish to the Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such Form S-3 Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3 registration
statement no more than once during any twelve (12) month period for a period
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of not more than 120 days after receipt of the request of the Holder or Holders
under this Section 2.4;
(4) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1) registration on
Form S-3 for the Holders pursuant to this Section 2.4; or
(5) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(6) if such registration is initiated pursuant to clause
(ii) of the first paragraph of this Section 2.4 and the Company has already
effected one (1) registration that was initiated pursuant to such clause.
(c) Expenses. Subject to the foregoing, the Company shall file
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a Form S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered pursuant to this Section 2.4 as soon as
practicable after receipt of the request or requests of the Holders for such
registration. The Company shall pay all expenses incurred in connection with the
first registration requested pursuant to this Section 2.4, (excluding
underwriters' or brokers' discounts and commissions), including without
limitation all filing, registration and qualification, printers' and accounting
fees and the reasonable fees and disbursements of one (1) counsel for the
selling Holder or Holders and counsel for the Company; provided, however that if
-------- -------
such registration is initiated pursuant to clause (i) of the first paragraph of
this Section 2.4, the Company shall also be obligated to pay all expenses as
provided for in this subsection 2.4(c) (excluding underwriters' or brokers
discounts and commissions) in connection with the first registration initiated
pursuant to clause (ii) of the first paragraph of this Section 2.4. All
expenses incurred in connection with any subsequent registration requested
pursuant to this Section 2.4 shall be borne by the Holders who participate in
such registration on a pro rata basis according to the number of Registrable
Securities owned by the Holders that are included in such registration at the
time it goes effective.
(d) Not Demand Registration. Form S-3 registrations shall not
-----------------------
be deemed to be demand registrations as described in Section 2.2 above.
2.5 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
--------------------------
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to ninety (90) days.
10
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of such date, of
the counsel representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
11
2.6 FURNISH INFORMATION. Each selling 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 the Company
shall request in writing and as shall be required to timely effect the
registration of such selling Holder's Registrable Securities.
2.7 DELAY OF REGISTRATION. No Holder shall have any right to obtain
---------------------
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 2.
2.8 INDEMNIFICATION. In the event any Registrable Securities are
---------------
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) By the Company. To the extent permitted by law, the Company
--------------
will indemnify and hold harmless each Holder, the partners, officers and
directors of each Holder, any underwriter (as defined in the Securities Act) for
such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Securities Act or the Securities Exchange Act of 1934,
as amended (the "1934 Act"), ag ainst any losses, claims, damages or liabilities
--------
(joint or several) to which they may become subject under the Securities Act,
the l934 Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations (collectively a
"Violation"):
---------
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of
the Securities Act, the 1934 Act, any federal or state securities
law or any rule or regulation promulgated under the Securities
Act, the 1934 Act or any federal or state securities law in
connection with the offering covered by such registration
statement;
and the Company will reimburse each such Holder, partner, officer, director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
-------- -------
indemnity agreement contained in this subsection 2.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for
12
any such loss, claim, damage, liability or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each
------------------
selling Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, directors or
officers or any person who controls such Holder within the meaning of the
Securities Act or the 1934 Act, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such Holder, or partner,
director, officer or controlling person of such other Holder may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, underwriter or other Holder, or partner, officer,
director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
-------- -------
2.8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and provided
--------
further, that the total amounts payable in indemnity by a Holder under this
-------
Section 2.8(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified party under this
------
Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifyin g party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
-------- -------
have the right to retain its own 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 conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.8, but the omission so to deliver written
notice to the indemnifying party will not
13
relieve it of any liability that it may have to any indemnified party otherwise
than under this Section 2.8.
(d) Defect Eliminated in Final Prospectus. The foregoing
--------------------------------------
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration stateme nt in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
-----
Prospectus), such indemnity agreement shall not inure to the benefit of any
----------
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
------------
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, 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 such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
2.8; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of such Holder's Registrable Securities offered by and sold under
the registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; provided, however,
-------- -------
that, in any such case, (A) no such 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 (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(f) Survival. 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 statement, and otherwise.
2.9 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that such
---------------------------
Holder shall not, to the extent requested by the Company or an underwriter of
securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities or other shares of stock of the Company then beneficially
owned by such Holder (other than to donees or partners of the Holder who agree
to be similarly bound) for up to
14
one hundred eighty (180) days following the effective date of a registration
statement of the Company filed under the Securities Act; provided, however,
-------- -------
that:
(a) such agreement shall be applicable only to (i) a
registration statement relating to a sale by the Company, on or after September
25, 1998 and on or before December 15, 1998, of not less than 1.2 million shares
of the Company's Common Stock for the account of the Company at a price to the
purchase (before deduction of underwriters discounts, commissions and the like)
of not less than $11.00 per share, and (ii) the first registration statement of
the Company which covers securities to be sold on its behalf to the public in an
underwritten offering in which shres are listed on the Swiss Exchange, New York
Stock Exchange, American Stock Exchange or Nasdaq National Market, but not to
Registrable Securities sold pursuant to any such registration statement; and
(b) all executive officers and directors of the Company then
holding Common Stock of the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company shall have the right to
place restrictive legends on the certificates representing the shares subject to
this Section and to impose stop transfer instructions with respect to the
Registrable Securities and such other shares of stock of each Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
2.10 RULE 144 REPORTING. With a view to making available the benefits
------------------
of certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration under the Securities Act
filed by the Company for an offering of its securities to the general public;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the 1934 Act (at any time after it has become subject to such
reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the 1934 Act (at any time after it has become
subject to the reporting requirements of the 1934 Act), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents of the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing a Holder to sell any such
securities without registration (at any time after the Company has become
subject to the reporting requirements of the 1934 Act).
2.11 TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall have
----------------------------------------
no obligations pursuant to Sections 2.2 through 2.4 with respect to: (i) any
request or requests for registration made by any Holder on a date more than ten
(10) years after the
15
closing date of the Company's initial public offering; or (ii) any Registrable
Securities proposed to be sold by a Holder in a registration pursuant to Section
2.2, 2.3 or 2.4 if, in the opinion of counsel to the Company, all such
Registrable Securities proposed to be sold by a Holder may be sold in a three-
month period without registration under the Securities Act pursuant to Rule 144
under the Securities Act.
2.12 LIMITATION 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 relating to registration rights unless such agreement includes:
(a) to the extent the agreement would allow such holder or prospective holder to
include such securities in any registration filed under Section 2.2, 2.3 or 2.4
hereof, a provision that such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of its
securities will not reduce the amount of the Registrable Securities of the
Holders which would otherwise be included; (b) to the extent the agreement would
allow such holder or prospective holder to include such securities in any
registration effected pursuant to Section 2.2, 2.3 or 2.4 hereof, a provision
that the rights of such holder to participate in such registration shall permit
participation on no greater level than that of the Holders; and (c) no provision
which would allow such holder or prospective holder to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of the dates set forth in Section 2.2(a).
3. RIGHT OF FIRST REFUSAL.
----------------------
3.1 GENERAL. Each Holder (as defined in Section 2.1(d)) and any party
-------
to whom such Holder's rights under this Section 3 have been duly assigned in
accordance with Section 4.1(b) (each such Holder or assignee being hereinafter
referred to as a "Rights Holder") has the right of first refusal to purchase
-------------
such Rights Holder's Pro Rata Share (as defined below), of all (or any part) of
any "New Securities" (as defined in Section 3.2) that the Company may from time
to time issue after the date of this Agreement. A Rights Holder's "Pro Rata
--------
Share" for purposes of this right of first refusal is the ratio of (a) the
-----
number of Registrable Securities as to which such Rights Holder is the Holder
(and/or is deemed to be the Holder under Section 2.1(d)), to (b) a number of
shares of Common Stock of the Company equal to the sum of (i) the total number
of shares of Common Stock of the Company then outstanding plus (ii) the total
number of shares of Common Stock of the Company into which all then outstanding
shares of Preferred Stock of the Company are then convertible plus (iii) the
number of shares of Common Stock of the Company reserved for issuance under
stock purchase and stock option plans of the Company and outstanding warrants.
3.2 NEW SECURITIES. "New Securities" shall mean any Common Stock or
-------------- --------------
Preferred Stock of the Company, whether now authorized or not, and rights,
options or warrants to purchase such Common Stock or Preferred Stock, and
securities of any type whatsoever that are, or may become, convertible or
exchangeable into such Common Stock or Preferred Stock; provided, however, that
-------- -------
the term "New Securities" does not include:
---- --- -------
16
(a) any shares of the Company's Common Stock (and/or options or
warrants therefor) issued to employees, officers, directors, contractors,
advisors or consultants of the Company pursuant to incentive agreements or plans
approved by the Board of Directors of the Company;
(b) any shares of Series A Stock issued under the Series A
Agreement as such agreement may be amended;
(c) any shares of Series B Stock issued under the Series B
Agreement as such agreement may be amended, including, without limitation, any
shares of Series B Stock issued to Other Investors pursuant to Section 2.2 of
the Series B Agreement;
(d) any shares of Series C Stock issued under the Series C
Agreement as such agreement may be amended, including, without limitation, any
shares of Series C Stock issued to Other Investors pursuant to Section 2.2 of
the Series C Agreement;
(e) any shares of Series D Stock issued under the Series D
Agreement as such agreement may be amended, including, without limitation, any
shares of Series D Stock issued to Other Investors pursuant to Section 2.2 of
the Series D Agreement;
(f) any securities issuable upon conversion of any shares of
Series A Stock, Series B Stock, Series C Stock or Series D Stock;
(g) any securities issuable upon exercise of any options,
warrants or rights to purchase any securities of the Company outstanding on the
date of this Agreement ("Warrant Securities") and any securities issuable upon
-------------------
the conversion of any Warrant Securities;
(h) any securities issuable upon exercise or conversion of any
New Securities;
(i) shares of the Company's Common Stock or Preferred Stock
issued in connection with any stock split or stock dividend;
(j) securities offered by the Company to the public pursuant to
a registration statement filed under the Securities Act;
(k) any shares of the Company's Common Stock or Preferred Stock
(and/or options or warrants therefor) issued or issuable to parties providing
the Company with equipment leases, real property leases, loans, credit lines,
guaranties of indebtedness, cash price reductions or similar financing; or
17
(l) securities issued pursuant to the acquisition of another
corporation or entity by the Company by consolidation, merger, purchase of all
or substantially all of the assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions, all or
substantially all of the assets of such other corporation or entity or fifty
percent (50%) or more of the voting power of such other corporation or entity or
fifty percent (50%) or more of the equity ownership of such other entity.
3.3 PROCEDURES. In the event that the Company proposes to undertake
----------
an issuance of New Securities, it shall give to each Rights Holder written
notice of its intention to issue New Securities (the "Notice"), describing the
------
type of New Securities and the price and the general terms upon which the
Company proposes to issue such New Securities. Each Rights Holder shall have
twenty (20) days from the date on which any such Notice was given to agree in
writing to purchase such Rights Holder's Pro Rata Share of such New Securities
for the price and upon the general terms specified in the Notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased (not to exceed such Rights Holder's Pro Rata Share). If any
Rights Holder fails to so agree in writing within such twenty (20) day period to
purchase such Rights Holder's full Pro Rata Share of an offering of New
Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall
--------------------
forfeit the right hereunder to purchase that part of such Nonpurchasing Holder's
Pro Rata Share of such New Securities that such Nonpurchasing Holder did not so
agree to purchase; and the Company shall promptly give each Rights Holder who
has timely agreed to purchase such Rights Holder's full Pro Rata Share of such
offering of New Securities (a "Purchasing Holder") written notice of the failure
-----------------
of any Nonpurchasing Holder to purchase such Nonpurchasing Holder's full Pro
Rata Share of such offering of New Securities (the "Overallotment Notice").
--------------------
Each Purchasing Holder shall have a right of overallotment such that such
Purchasing Holder may agree to purchase a portion of the Nonpurchasing Holders'
unpurchased Pro Rata Shares of such offering on a pro rata basis according to
the relative Pro Rata Shares of the Purchasing Holders, at any time within five
(5) days after receiving the Overallotment Notice.
3.4 FAILURE TO EXERCISE. In the event that the Rights Holders fail to
-------------------
exercise in full the right of first refusal within such twenty (20) plus five
(5) day period, then the Company shall have ninety (90) days thereafter to sell
the New Securities with respect to which the Rights Holders' rights of first
refusal hereunder were not exercised, at a price and upon general terms not
materially more favorable to the purchasers thereof than specified in the
Company's Notice to the Rights Holders. In the event that the Company has not
issued and sold the New Securities within such ninety (90) day period, then the
Company shall not thereafter issue or sell any New Securities without again
first offering such New Securities to the Rights Holders pursuant to this
Section 3.
3.5 TERMINATION. This right of first refusal shall terminate (a)
-----------
immediately before the closing of the first underwritten sale of Common Stock of
the Company to the public pursuant to a registration statement filed with, and
declared effective by, the SEC under the Securities Act, covering the offer and
sale of Common Stock to the public for an aggregate gross public offering price
(calculated before deduction of underwriters' discounts and commissions) of at
least $10.0 million and a public offering price per share which equals or
exceeds $4.125 per share (such price per
18
share of Common Stock to be appropriately adjusted to reflect stock dividends,
splits, combinations and the like), or (b) upon an acquisition of the Company by
another corporation or entity by consolidation, merger or other reorganization
in which the holders of the Company's outstanding voting stock immediately prior
to such transaction own, immediately after such transaction, securities
representing less than fifty percent (50%) or more of the voting power of the
corporation or other entity surviving such transaction. This right of first
refusal shall also terminate immediately prior to the closing of the sale of not
less than 1.2 million shares of the Company's Common Stock for the account of
the Company at a price to the purchaser (before deduction of underwriter
discounts, commissions and the like) of not less than $11.00 per share; provided
that such sale occurs on or after September 25, 1998 and on or before December
15, 1998.
4. ASSIGNMENT AND AMENDMENT.
------------------------
4.1 ASSIGNMENT. Notwithstanding anything herein to the contrary:
----------
(a) Information Rights. The rights of an Investor under Section
------------------
1.1 or 1.2 or 1.4 hereof may be assigned only to a party who acquires from an
Investor (or an Investor's permitted assigns) at least that number of shares of
Series ABCD Based Stock as is described in Section 1.1 or 1.2 or 1.4 hereof,
respectively.
(b) Registration Rights; Refusal Rights. The registration rights of
-----------------------------------
a Holder under Section 2 hereof and the rights of first refusal of a Rights
Holder under Section 3 hereof, as applicable, may be assigned only: (i) to a
party who acquires at least forty thousand (40,000) shares of Series A Stock
issued under the Series A Agreement and/or Series B Stock issued under the
Series B Agreement and/or Series C Stock issued under the Series C Agreement
and/or Series D Stock issued under the Series D Agreement and/or an equivalent
number (on an as-converted basis) of Registrable Securities issued upon
conversion thereof and/or Stockholders' Shares or some combination thereof (as
appropriately adjusted for stock dividends, splits, combinations and the like);
(ii) to a party who acquires at least five thousand (5,000) Warrant Shares (as
appropriately adjusted for stock dividends, splits, combinations and the like);
(iii) to a successor entity to an Investor pursuant to a reorganization or
recapitalization of an Investor; (iv) to an affiliate of an Investor; (v) with
respect to the Warrant Shares, to an affiliate of a Warrant Holder; (vi) to the
partners or shareholders of an Investor; or (vii) with respect to rights of
first refusal under Section 3 hereof, in all or part by Commonwealth BioVentures
IV Limited Partnership or Commonwealth BioVentures V Limited Partnership or any
affiliates thereof who are Rights Holders to Concord Partners II, L.P. or any
affiliates thereof; provided that such holder as described in Clauses (iii),
-------- ----
(iv) or (vi) hereof owns at least ten thousand (10,000) shares of Series ABCD
Based Stock and/or Registrable Securities or some combination thereof (as
appropriately adjusted for stock dividends, splits, combinations and the like);
provided, however that no party may be assigned any of the foregoing rights
--------- -------
unless the Company is given written notice by the assigning party at the time of
such assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and provided further that any such assignee shall receive such assigned rights
-------- -------
subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Section 4.
4.2 AMENDMENT OF RIGHTS. Any provision of this Agreement may be
-------------------
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Investors (and/or any of their permitted
successors or assigns) holding shares
19
of Series A Stock and/or Series B Stock and/or Series C Stock and/or Series D
Stock and/or Conversion Stock representing and/or convertible into sixty percent
(60%) of all the Investors' Shares (as defined below); provided, however, any
-------- -------
such amendment or waiver shall be equally applicable to all Investors; provided,
--------
further, that it is acknowledged that the effect or implication of an amendment
-------
or waiver may be different for different Investors. Notwithstanding the
foregoing, (i) the piggyback registration rights granted to the Stockholders and
Warrant Holders under Section 2 of this Agreement may not be eliminated or
materially and adversely changed without the written consent of persons holding
a majority of the Stockholders' Shares and Warrant Shares, voting as one group;
provided, however, that the grant to third parties of piggyback registration
-------- -------
rights under Section 2.3 hereof on a pari passu basis with the piggyback
registration rights of the Stockholders' Shares and Warrant Shares under Section
2.3 shall not be deemed to be a material and adverse change to the piggyback
registration rights of the Stockholders and Warrant Holders under this
Agreement; and (ii) the Form S-3 registration right granted to the holders of
Registrable Securities issued or issuable upon conversion of the Series D Stock,
pursuant to clause (ii) of the first paragraph of Section 2.4 herein, may not be
eliminated or materially and adversely changed without the written consent of
persons holding a majority of the Registrable Securities issued or issuable upon
conversion of the Series D Stock. As used herein, the term "Investors' Shares"
-----------------
shall mean, collectively, (a) the shares of Common Stock then issuable upon
conversion of (i) all then outstanding shares of Series A Stock issued under the
Series A Agreement, (ii) all then outstanding shares of Series B Stock issued
under the Series B Agreement, (iii) all then outstanding shares of Series C
Stock issued under the Series C Agreement and (iv) all then outstanding shares
of Series D Stock issued under the Series D Agreement; and (b) all then
outstanding shares of Conversion Stock that were issued upon the conversion of
any shares of Series A Stock, Series B Stock, Series C Stock or Series D Stock
issued under the Series A Agreement, Series B Agreement, Series C Agreement or
Series D Agreement, respectively. Any amendment or waiver effected in
accordance with this Section 4.2 shall be binding upon each Investor, each
Stockholder, each Holder, each permitted successor or assignee of such Investor
or Holder and the Company.
4.3 OTHER INVESTORS. By signing a counterpart signature page to this
---------------
Agreement, without the need for any further consent, approval or signature of
any party to this Agreement, any party who becomes a party to the Agreement as
an "Other Investor" pursuant to Section 2.2 of the Series D Agreement shall
--------------
become a party to this Agreement, as an Investor hereunder.
4.4 RESTRICTED ACTIVITIES. Without the unanimous written consent of
---------------------
the Company's Board of Directors, or the affirmative vote of a majority plus one
of the members of the Company's Board of Directors present at a meeting duly
called and at which a quorum (which shall not be less than a majority of the
authorized number of directors) is present, neither the Company nor its
subsidiaries (if any) shall, together or alone:
(a) borrow, guarantee or otherwise incur any indebtedness or
commit itself to pay in excess of $250,000 in any transaction or series of
similar transactions;
20
(b) lease, purchase, sell or otherwise acquire or dispose of any
property or services having a value in excess of $250,000 in any transaction or
series of similar transactions or license, sell or otherwise dispose of any
material United States patents, foreign patents, patent rights, invention
disclosures, know-how, trademarks, trade names, trade name rights, copyrights or
other proprietary information;
(c) assign, mortgage, pledge or otherwise encumber any assets
having a value of more than $250,000 or any material United States patents,
foreign patents, patent rights, invention disclosures, know-how, trademarks,
trade names, trade name rights, copyrights or other proprietary information;
(d) enter into any employment, consulting or similar agreement
obligating the Company to pay in excess of $100,000 per annum which the Company
or its subsidiaries shall be unable to cancel, without penalty or other cost,
upon notice of one month or less, or any collective bargaining agreement;
(e) make any loan, extend any credit or forgive or otherwise
change the terms of any indebtedness, in excess of $250,000;
(f) purchase or otherwise acquire the securities of any other
corporation, partnership or other entity or enter into any partnership, joint
venture or other similar agreement; provided, however, that investments in
-------- -------
short-term U.S. government securities, bank certificates of deposit or other
similar investments shall not be deemed a breach of this covenant;
(g) declare or pay any dividend in cash or in property or make
or authorize any other distribution directly or indirectly on its Common Stock
or any other capital stock now outstanding or hereafter issued other than as
required by the Company's Certificate of Incorporation; or (h) directly or
indirectly purchase, acquire, redeem (except as provided in the Company's
Certificate of Incorporation) or retire any share of its outstanding capital
stock or any securities exercisable for, or convertible into, its capital stock
(except that the Company, if approved by the Board of Directors of the Company,
may purchase shares of capital stock of the Company from employees upon
termination of their employment or upon any proposed sale or other transfer by
any employee of any shares of capital stock owned by such employee).
Notwithstanding the foregoing, the requirements of this Section 4.4 shall not
apply to the following transactions:
(x) merger or consolidation of the Company with or into any
entity;
21
(y) sale of all or substantially all the Company's assets in a
single transaction or series of related transactions; or
(z) liquidation or dissolution of the Company.
Additionally, the provisions of this Section 4.4 shall terminate
immediately prior to the closing of the sale of not less than 1.2 million
shares of the Company's Common Stock for the account of the Company at a price
to the purchaser (before deduction of underwriter discounts, commissions and
the like) of not less than $11.00 per share; provided that such sale occurs on
or after September 25, 1998 and on or before December 15, 1998.
GENERAL PROVISIONS.
------------------
5.1 NOTICES. Any notice, request or other communication required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if (i) personally delivered, (ii) for U.S. addresses, deposited in the
U.S. mail by registered or certified mail, return receipt requested, postage
prepaid, (iii) deposited with a nationally or internationally (as applicable)
recognized express courier service, fees prepaid, or (iv) sent by facsimile,
with proof of transmission, as follows:
(a) if to an Investor, at such Investor's address or fax number
as set forth on Exhibit A-1 or A-2 hereto.
(b) if to a Stockholder, at such Stockholder's address or fax
number as set forth on Exhibit B hereto.
(c) if to Aberlyn, at ββββ ββββββ ββββββ, βββββ ββββ, βββββββ,
ββ βββββ, Attention: President, fax number: (βββ) βββ-ββββ.
(d) if to Prospektiva, at ββββββ ββββββ β, ββββ ββββββ,
βββββββββββ, Attention: ββββ βββββββββ, fax number: ββ-ββ-βββ-ββββ.
(e) if to the Company, at βββ βββββββ βββββββ, βββββββββ, ββ
βββββ, Attention: President, fax number: (βββ) βββ-ββββ; with a copy to ββββββ
β. ββββββββ, Esq., Fenwick & West LLP, βββ ββββ ββββ ββββββ, ββββ ββββ, ββ
βββββ, fax number: (βββ) βββ-ββββ.
Any party hereto (and such party's permitted assigns) may by notice so given
change such party's address or fax number for future notices hereunder. Notice
shall conclusively be deemed to have been given when delivered, deposited or
sent in the manner set forth above.
5.2 ENTIRE AGREEMENT. This Agreement, together with all the Exhibits
----------------
hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof, including,
without limitation, the Prior Agreement. By becoming a Stockholder under this
Agreement, UKRF acknowledges and agrees that the Right of First Refusal granted
to UKRF under this Agreement supersedes the right of first refusal granted to
UKRF pursuant to Section 4.7(b) of that certain License Agreement, dated as of
July 15, 1992, among the Company, UKRF and Oklahoma Medical Research Foundation.
Nothing herein limits Aberlyn's rights under the Aberlyn Warrant.
22
5.3 GOVERNING LAW. This Agreement shall be governed by and construed
-------------
exclusively in accordance with the internal laws of the State of California as
applied to agreements among California residents entered into and to be
performed entirely within California, excluding that body of law relating to
conflict of laws and choice of law.
5.4 SEVERABILITY. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
5.5 THIRD PARTIES. Nothing in this Agreement, express or implied, is
-------------
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
5.6 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section
----------------------
4.1, the provisions of this Agreement shall inure to the benefit of, and shall
be binding upon, the successors and permitted assigns of the parties hereto.
5.7 CAPTIONS. The captions to sections of this Agreement have been
--------
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
5.8 COUNTERPARTS. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.9 COSTS AND ATTORNEYS' FEES. In the event that any action, suit or
-------------------------
other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
5.10 ADJUSTMENTS FOR STOCK SPLITS, ETC. Wherever in this Agreement
---------------------------------
there is a reference to a specific number of shares of Common Stock or Preferred
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
5.11 AGGREGATION OF STOCK. All shares held or acquired by affiliated
--------------------
entities or persons shall be aggregated together for the purpose of determining
whether the share ownership of any entity or person satisfies the requirements
under this Agreement with respect to the availability of any rights under this
Agreement.
23
5.12 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party hereto upon any breach or default of any
other party under this Agreement shall impair any such right, power or remedy
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or in any similar breach or default occurring thereafter;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring.
[REST OF PAGE LEFT BLANK INTENTIONALLY]
24
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date and year first above written.
COMPANY STOCKHOLDERS
------- ------------
CENTAUR PHARMACEUTICALS, INC. /s/ ββββ β. ββββββ
----------------------------
ββββ β. ββββββ
By: /s/ βββββ β. βββββββ
---------------------------------
βββββ β. βββββββ, President
/s/ ββββββββ β. ββββββ
----------------------------
ββββββββ β. ββββββ
ABERLYN
-------
ABERLYN CAPITAL MANAGEMENT /s/ ββββββ β. βββββ
LIMITED PARTNERSHIP ----------------------------
ββββββ β. βββββ [trustee of ββββββ
β. βββββ 1995 Revocable Trust and
βββββββ β. βββββ 1995 Revocable
Trust]
By: Aberlyn Capital Management Co., Inc.,
General Partner OKLAHOMA MEDICAL
RESEARCH FOUNDATION
By: /s/ βββββ β. βββββ
----------------------------------- By: /s/ βββββββ β. βββββββ, M.D.
Name: βββββ β. βββββ -------------------------------
--------------------------------- Name: βββββββ β. βββββββ, M.D.
Title: Vice President -----------------------------
-------------------------------- Title: President
----------------------------
PROSPEKTIVA THE UNIVERSITY OF KENTUCKY
-----------
RESEARCH FOUNDATION
PROSPEKTIVA INVESTMENTS
By: /s/ Per ββββ βββββββββ By:________________________________
-----------------------------------
Name: Per ββββ βββββββββ Name:______________________________
---------------------------------
Title: Principal Title:_____________________________
--------------------------------
[SIGNATURE PAGE TO THIRD AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
[ADDITIONAL SIGNATURE PAGES WITH SIGNATURES OF PRIOR INVESTORS (IDENTIFIED ON
EXHIBIT A-1) AND NEW INVESTORS (IDENTIFIED ON EXHIBIT A-2) OMITTED]
25
EXHIBIT A-1
PRIOR INVESTORS
---------------
Name & Address Name & Address
-------------- --------------
Charter Ventures βββββ β. βββββββ and βββββββββ
βββ ββββββββββ ββββββ, βββββ ββββ β.β. βββββββ as Community Property
ββββ ββββ, ββ βββββ ββββ βββββββββ βββββ
Fax No.: βββ βββββ, ββ βββββ
Fax No.:
ββββ β. βββββββ and βββββ β. ββββ β. βββββ
βββββββ as Community Property c/o Glenn Foundation
ββββ βββββ βββββββ ββββ, βββββ β ββββ βββββ βββββββ, ββ., βββ. β
βββββ βββββββ, ββ βββββ βββββ βββββββ, ββ βββββ
Fax No.: Fax No.:
Commonwealth BioVentures V ββββββ ββββββββ
Limited Partnership βββ ββββββββ ββββββ,
βββ ββββββββββ βββββ ββββββ, ββ βββββ
βββββββββ, ββ βββββ Fax No.:
Fax No.:
Concord Partners II, L.P. ββββββ β. ββββββββ, ββ.
535 Madison Avenue βββββββ Resources Co.
βββ ββββ, ββ βββββ βββ ββββ ββββββ
Fax No.: βββββββββ, ββ βββββ
Fax No.:
βββ β. ββββββ and βββββββ β. ββββββ ββββββ
ββββββ P.O. Box 2294
Co-Trustees FBO βββ β. ββββββ and ββββββββ, ββ βββββ
βββββββ β. ββββββ dated 8/1/91 Fax No.:
ββββ βββββββ ββββββ
βββ βββββ, ββ βββββ-ββββ
Fax No.:
ββββββ, Read & Co. Inc., as agent ββββ β. βββββββ, Ph.D.
βββ βββββββ ββββββ βββ ββββββββββ ββββ
βββ ββββ, ββ βββββ βββββ βββββββ, ββ βββββ
Fax No.: Fax No.:
βββββββ ββββββ βββββ β. βββββββ Trust
ββββ ββββββ ββ., #ββ βββ βββββ βββββ
ββββββ, ββ βββββ βββββ βββββββ, ββ βββββ
Fax No.: Fax No.:
ββ
β & β βββββββββββ ββββ βββββββββ Partners IV, L.P.
Two Palo Alto Square, Suite 800 535 Madison Avenue
Palo Alto, CA 94306 βββ ββββ, ββ βββββ
Attn: ββββββ β. ββββββββ, Esq. Fax No.:
Fax No.:
Ling-βββ ββ βββββββ β. Wool
8/F, TFIT Tower βββ βββββ βββββββ ββββ
85 Jen Ai Road, Section 4 βββββββ, ββ βββββ
ββββββ βββ, ββββββ Fax No.:
Fax No.:
βββββββ ββββββ βββββββ β. & βββββ β. ββββββββ
ββββββ Trading Company as Community Property
βββ βββββ ββββ ββββ. β βββ ββββ ββ ββββββ ββββ, βββββ βββ
βββββββ, ββ βββββ ββββ ββββ, ββ βββββ
Fax No.: Fax No.:
Menlo Ventures IV, L.P. βββββββ βββββββ
ββββ ββββ ββββ ββββ ββββββ Trading Company
ββββββββ β, βββββ βββ βββ βββββ ββββ ββββ.
βββββ ββββ, ββ βββββ βββββββ, ββ βββββ
Fax No.: Fax No.:
ββββββ βββββββ Bismuth Investments Limited*
ββββ ββββ ββββ ββββββ Suite 922C
Apt. 1-A Europort, GIBRALTAR
ββββββ, ββ βββββ Fax No.:
Fax No.:
βββββ βββββ Neptune Investment Company
β/β βββββββ & βββββ ββββ ββββββ ββββββ
βββ ββββββββ ββββββ ββββββ, ββ βββββ
ββββ ββββ, ββ βββββ Fax No.:
Fax No.:
βββββ ββββββ CND for the βββ of Charter Ventures II, L.P.
ββββ ββββ βββ ββββββββββ ββββββ, βββ. ββββ
Acct # OSN-465909 ββββ ββββ, ββ βββββ
c/o βββββ ββββββ, Attn: βββ Fax No.:
βββββββ
βββ ββββ ββββ ββββββ, βββ βββββ
βββ ββββ, ββ βββββ
Fax No.:
ββββββ β. Still, Jr. Lexington Partners IV, L.P.
ββββ ββββ ββββ ββββ βββ βββββββ ββββββ
ββββββββ β, βββββ βββ βββ ββββ, ββ βββββ
βββββ ββββ, ββ βββββ Fax No.:
Fax No.:
27
Declaration of Trust made on Declaration of Trust made on
August August
17, 1935 by ββββββββ β. βββββ 17, 1935 by ββββββββ β. βββββ
for the for the
benefit of ββββ β. βββββ and benefit of ββββ β. βββββ and
Others Others
- ββββββ Share - ββββββ Share
c/o βββββββ ββββββββ, Trustee c/o βββββββ ββββββββ, Trustee
βββ ββββ ββββββ βββ ββββ ββββββ
βββββββββ, ββ βββββ βββββββββ, ββ βββββ
Fax No.: Fax No.:
Neuroscience Partners Limited
Partnership
βββ βββββββββββββ ββββ.
βββββββββ, βββββββ
ββββββ M9W 656
Fax No.:
* Effective notice to Bismuth Investments Limited requires a copy to both of
the following as well as the above address: Springfield & Company,
Attention: Legal Department, ββββ ββββββ ββββββ, ββββββ ββββββ, ββ βββββ;
and Springfield Financial Advisory Limited, Hang Lung Centre, 22nd Floor,
β-ββ ββββββββ ββββββ, ββββββββ βββ, ββββ ββββ, fax βββ-βββ-βββ-ββββ.
ββ
βββββββ β-β
βββ βββββββββ
-------------
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
FIRST CLOSING 2/14/97
NO. OF
INVESTOR NAME & ADDRESS SHARES
ββββββ β. βββββ 13,336
Room 1220
βββ ββββ ββββββββ ββββββ
βββββββ, ββ βββββ
βββββββ Resources Company 7,000
c/o ββββββ β. ββββββββ, ββ.
β.β. βββ βββ-βββ ββββ ββββββ
βββββββββ, ββ βββββ-ββββ
ββββ ββββ 2,000
c/o LXN Corporation
ββββ βββββββ ββ., βββ. βββ
βββ βββββ, ββ βββββ
Charter Ventures II L.P. 40,000
β. ββββ βββββ
βββ ββββββββββ ββββββ, βββ. ββββ
ββββ ββββ, ββ βββββ
ββββββ, Read & Co. Inc., as Agent 6,164
c/o βββ βββββββββ
βββ βββββββ ββββββ
βββ ββββ, ββ βββββ
βββββββ β. ββββββ 3,333
β βββββββββββ
βββββββ ββββββ, ββ βββββ
J. βββββββ ββββ 13,333
Sparks Companies
βββ βββββ ββββ ββββ., βββ. βββ
βββββββ, ββ βββββ
βββββ β. βββββ 13,334
βββ βββββββββ ββββ
ββββββββββ, ββ βββββ
ββββ β. βββββ, Trustee, ββββ β. βββββ
Revocable Trust 66,667
c/o Glenn Foundation
ββββ ββββ βββββββ ββ., βββ. β
βββββ βββββββ, ββ βββββ
βββββ Foundation for Medical Research 33,334
c/o Glenn Foundation
ββββ ββββ βββββββ ββ., βββ. β
βββββ βββββββ, ββ βββββ
βββββββ β. ββββββββββ 20,000
βββββ βββββ ββββββ #βββ
ββββββββββ, ββ βββββ
βββββ β. βββββββββ and βββββ β. βββββββββ 13,333
c/β βββββββββ Investment, LLC
βββ-β βββββββ βββββ
βββββ, ββ βββββ
ββββββ ββββββ 13,350
βββ β. ββββ ββββββ
βββ ββββ, ββ βββββ
βββββ β. ββββββ 14,000
ββββ ββββββ ββββ βββββ
βββββββ, ββ βββββ
βββββ β. βββββββ Trust 13,334
βββββ βββββββ
βββ βββββ βββββ
βββββ βββββββ, ββ βββββ
Menlo Ventures IV, L.P. 66,666
c/o βββββββ ββββββ
ββββ ββββ ββββ ββββ, ββββ. β-βββ. βββ
βββββ ββββ, ββ βββββ
βββββββ βββββ as Custodian FBO 412-82-H44 3,000
c/o ββββββ ββββββ
ββββ β. βββββββββ ββ., βββ. βββ
βββββββ, ββ βββββ
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
FIRST CLOSING 2/14/97
NO. OF
INVESTOR NAME & ADDRESS SHARES
βββββββ β. βββββββ 14,000
ββββ βββββββ ββββ
ββββββββββ, ββ βββββ
Oklahoma Medical Research Foundation 20,000
c/o βββββββ β. βββββββ, M.D.
βββ β.β. ββββ ββββββ
ββββββββ ββββ, ββ βββββ
ββββ β. βββββββ 14,000
βββ β. βββββ
ββββββββ, ββ βββββ
Porcelain Partners, L.P. 14,000
ββββββ βββββββ & Co. Acct. βββ-βββββ-β
βββ ββββββββ βββββ-β/β ββββββ βββ
ββββββββ, ββ βββββ
ββββββββ βββββββ βββββββ 15,000
βββ βββββββ ββββ ββββ
ββββββββββ, ββ βββββ
βββββββ β. βββββββ 30,000
1701 Gulf of Mexico Drive ββββ βββ
ββββββββ βββ, ββ βββββ
ββββββ βββββββ βββββββ 15,000
βββ ββββ ββββββ
ββββββββ, ββ βββββ
The βββββββ Family Trust, βββββ β. βββββββ
Trustee 12,500
ββββ βββββββ ββββββ
βββ βββββββββ, ββ βββββ
ββββ β. βββββββ βββ 33,334
c/o Jupiter Partners LP
ββ βββββββββββ βββββ, #ββββ
βββ ββββ, ββ βββββ
βββββββ Towbes 20,000
The Towbes Group
ββ ββββ ββββββββ ββββββ, βββ. βββ
βββββ βββββββ, ββ βββββ
βββββββ β. βββ βββββ Trust dated 6/19/95,
βββββββ β. βββ βββββ, Trustee 12,000
β βββββββ ββββ
ββ. βββββ, ββ βββββ
βββββ βββββββ 5,000
βββ βββββ ββββββ
βββββββββ, ββ βββββ
S. ββββββ βββββ, ββ. 19,166
βββ βββ βββββββ ββββ
βββββ βββββββ, ββ βββββ
Banca del Gottardo 213,767
ββ. βββββ βββββββ
Viole β. βββββββββ β
ββββ ββββββ
βββββββββββ
ββββ Investment AG 210,000
Mr. Hans ββββ ββββ
ββββββββββββ β
ββ ββββ βββββββββ
βββββββββββ
Fonds Finans a.s. 4,000
c/o ββββ ββββββ Forgrigd
Haakon Vll's gt. 2
β.β. βββ ββββ ββββ
ββββ ββββ
ββββββ
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
FIRST CLOSING 2/14/97
NO. OF
INVESTOR NAME & ADDRESS SHARES
Hicksville os 12,000
ββββ βββββββ c/o Delta Invest as
Haakon Vll's gt. 6
6. etg. Oslo
Norway
Hyndoy as 10,000
Egil Wichstraud βββββββ
ββββββββββββββ βββ
ββββ ββββ, ββββββ
ββββββ βββββββ 13,340
β-β-ββ βββββββ ββββββββ
βββββ, βββββ
Widor βββββββ 3,000
Huk Aveny 54 A
0287 Oslo, Norway
ββββββ βββββ ββββββ 6,668
βββββββ. ββ
ββββ βββββββ
ββββββ
Monsun as 133,333
c/o βββββ βββββββββ
ββββββββββ ββ
ββββ βββββ, ββββββ
ββββ β. ββββββββ 10,000
βββββββββ ββ
β-βββββ βββββββββ
ββββββ
Troust AS 6,667
β/β βββββ ββ βββββββ
βββββββββ. βββ
ββββ ββββββ, ββββββ
Totals: 1,188,959
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
SECOND CLOSING ON 3/31/97
NO. OF
INVESTOR NAME & ADDRESS SHARES
DOMESTIC:
Biotechnology Development Fund, L.P. 133,334
c/o βββββ ββββ
ββββ βββββ ββ.
βββββ ββββ, ββ βββββ
βββββ β. βββββββ 10,000
βββββ βββββββ βββ
βββ βββββ βββββ, ββ βββββ
Gulf Horizons, Ltd. 7,000
c/o βββββββ β. ββββββ, Fr.
ββββ ββββββββ, βββ. βββ
βββββββ, ββ βββββ
ββββββ βββββββββ, Trustee of the
ββββββ βββββββββ Trust dtd. 2/26/88 4,000
βββ ββ ββββββ ββββ
βββββ βββββββ, ββ βββββ
ββββ β. βββββββ 33,334
c/o Jupiter Partners LP
ββ βββββββββββ βββββ, #ββββ
βββ ββββ, ββ βββββ
FOREIGN:
Odd β. βββββββββ 12,000
N. Stor at 46
3015 Drammen Norway
Informatique-MTF SA 6,667
β/β ββββ ββββββ/βββ
βββββ βββ ββββββ β
ββββ ββββββββ / ββ
βββββββββββ
βββ β. βββββββ 40,000
βββββ βββββββββββ ββ
ββββ βββββββ ββββββ
βββββ βββββββ 13,333
βββββββββββββ ββ
ββββ βββ βββββββββββ
βββββ ββββββ 6,000
βββββββ ββ, ββββ ββββββ
βββββββββββ
LGT Bank in Liechtenstein 13,400
ββββββββββ ββ ββββ βββββ
Principality of Lichtenstein
βββββββ ββββββ 40,000
βββββββββββββββββ ββ
ββββββ ββββ βββββββββββ
Teknoinvest IV ANS 266,667
c/o Teknoinvest Management AS
Grev Wedels ββ. β, β.β. βββ βββ βββββββ
ββββ ββββ, ββββββ
Traust AS 16,000
5008 Bergen Norway
Totals: 601,735
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
THIRD CLOSING
NO. OF
INVESTOR NAME & ADDRESS SHARES
βββββββββ βββββββββ Holding AS 118,333
ββββββββββββ ββ ββ
ββββ, ββββ ββββββ
ββββββ βββββββ 30,000
ββββββββββββ ββ ββ
ββββ, ββββ ββββββ
Istria AS 118,333
ββββββββββββ ββ ββ
ββββ ββββ, ββββββ
Neuroscience Partners Limited Partnership 133,333
c/o MDS Health Ventures Capital Corp.
Attn: ββββββ β. ββββββ
βββ βββββββββββββ ββββ.,
βββββββββ, βββββββ βββ βββ
Totals: 399,999
EXHIBIT A-2
CENTAUR PHARMACEUTICALS, INC.
SERIES D INVESTORS
FOURTH CLOSING ON 10/3/97
NO. OF
INVESTOR NAME & ADDRESS SHARES
Veron International Ltd. 9,307
Top Floor, Chinachem Golden Plaza
ββ ββββ ββββ
ββββββββββ ββββ
βββββββ, ββββ ββββ
Total: 9,307
Grand Total (All Closings): 2,200,000
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EXHIBIT B
STOCKHOLDERS
------------
Name & Address Name & Address
-------------- --------------
ββββ β. ββββββ and ββββββββ β. ββββββ ββββββ β. βββββ
20010 Heritage Oak ββββ βββββ ββββ
ββββββββ, ββ βββββ ββββββββ ββββ, ββ βββββ
Fax No.: Fax No.:
Oklahoma Medical Research The University of Kentucky
Foundation Research Foundation*
βββ β.β. ββββ ββββββ βββ βββββββ ββββ
ββββββββ ββββ, ββ βββββ βββββββββ, ββ βββββ-ββββ
Fax No.: Fax No.:
* As of October 3, 1997, the University of Kentucky Research Foundation had
not become a party to the Investors' Rights Agreement.
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30