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Exhibit 4.2
iPHYSICIAN NET INC.
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
February 2, 2000
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AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Amended and Restated Investors' Rights Agreement (the "Agreement")
is made as of the 2nd day of February 2000 by and among iPhysician Net Inc.
(formerly IPNI Communications Corporation), a Delaware corporation (the
"Company"), the Series B Preferred Stock investors listed on Exhibit A hereto,
the Series C Preferred Stock Investors listed on Exhibit B hereto and the Series
D and Series D-1 Preferred Stock Investors listed on Exhibit C hereto each of
which is herein referred to as an "Investor" and collectively, the "Investors,"
and PictureTel Corporation, a Delaware corporation ("PictureTel").
RECITALS
The Company and PictureTel have entered into a Relationship Agreement
dated September 22, 1997, as amended by Addendum No. 1 and Amendment No. 2
thereto, pursuant to which the Company has issued to PictureTel a warrant to
purchase shares of the Company's Series A Preferred Stock. [In addition, the
Company is contemplating entering into an equipment lease financing arrangement
with Far East National Bank ("Far East Bank"), pursuant to which, among other
things, the Company purposes to issue to Far East Bank warrants to purchase up
to 300,000 shares of the Company's Common Stock.
The Company and certain of the Investors have entered into a Series D
and Series D-1 Preferred Stock Purchase Agreement (the "Purchase Agreement") of
even date herewith pursuant to which the Company desires to sell to certain of
the Investors and certain of the Investors desire to purchase from the Company
shares of the Company's Series D and Series D-1 Preferred Stock. The Company,
the Series B Preferred Stock investors, Series C Preferred Stock investors and
PictureTel previously entered into an Investors' Rights Agreement dated as of
August 24, 1999, as amended (the "First Amended and Restated Agreement"). A
condition to the Series D and Series D-1 Preferred Stock Investors' obligations
under the Subscription Agreement is that the Company, PictureTel and the
Investors enter into this Agreement in order to amend and restate the First
Amended and Restated Agreement and to provide all Investors and PictureTel with
(i) certain rights to register shares of the Company's Common Stock issuable
upon conversion of the Series A, Series B, Series C, Series D and Series D-1
Preferred Stock held by the Investors and PictureTel (or others), shares of
Common Stock issuable upon exercise of Common Stock purchase warrants dated as
of March 5, 1999 held by certain of the Series B Investors and shares of Common
Stock issuable upon exercise of the warrants issued to Far East Bank, (ii)
certain rights to receive or inspect information pertaining to the Company, and
(iii) a right of first offer with respect to certain issuances by the Company of
its securities.
AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Investors covenant and
agree as follows:
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1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "register" "registered" and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the
shares of Common Stock issuable or issued upon conversion of the Series B,
Series C, Series D or Series D-1 Preferred Stock, including any shares of Series
D or Series D-1 Preferred Stock issued to the Investors or others after the date
hereof in accordance with the Purchase Agreement, (ii) the shares of Common
Stock issued or issuable upon conversion of the Series A Preferred Stock issued
or issuable to PictureTel upon exercise of the PictureTel Warrant (as defined
below) (the "PictureTel Stock"), (iii) the shares of Common Stock issued or
issuable to the Investors upon exercise of the Convertible Note Warrants (as
defined below); (iv) the shares of Common Stock issued or issuable to Far East
Bank upon exercise of the Bank Warrant (as defined below) (the "Bank Stock");
and (v) any other shares of Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, the shares listed in (i), (ii) (iii) and (iv) above;
provided, however, that the foregoing definition shall exclude in all cases any
Registrable Securities sold by a person in a transaction in which his or her
rights under this Agreement are not assigned. Notwithstanding the foregoing,
Common Stock or other securities shall only be treated as Registrable Securities
if and so long as they have not been (A) sold to or through a broker or dealer
or underwriter in a public distribution or a public securities transaction, or
(B) sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions, and restrictive legends with respect thereto, if any, are
removed upon the consummation of such sale;
(c) The number of shares of "Registrable Securities
then outstanding" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities;
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12 of this Agreement;
(e) The term "Form S-3" means such form under the
Securities Act as in effect on the date hereof or any successor form under the
Securities Act;
(f) The term "SEC" means the Securities and Exchange
Commission;
(g) The term "PictureTel Warrant" means the Warrant
dated September 22, 1997, as amended, issued to PictureTel to purchase up to
997,750 shares of Series A Preferred Stock (or Common Stock);
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(h) The term "Convertible Note Warrants" means the
Warrants dated as of March 5, 1999 to purchase up to 400,002 shares of Common
Stock issued to the holders of the Company's $2.5 million face amount
convertible promissory notes also dated March 5, 1999;
(i) The term "Bank Warrant" means the warrant to
purchase up to 300,000 shares of Common Stock issued or to be issued to Far East
Bank in connection with an equipment lease financing facility or facilities to
be entered into between the Company and Far East Bank; and
(j) The term "Qualified IPO" means a firm commitment
underwritten public offering by the Company of shares of its Common Stock
pursuant to a registration statement on Form S-1 under the Securities Act which
results in aggregate cash proceeds to the Corporation of at least $7,500,000
(net of underwriting discounts and commissions).
1.2 REQUEST FOR REGISTRATION.
(a) If the Company shall receive at any time after
the earlier of (i) June 30, 2001, or (ii) six (6) months after the effective
date of the first registration statement for a public offering of securities of
the Company (other than a registration statement relating either to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or an SEC Rule 145 transaction), a written request from
the Holders of at least 25% of the Registrable Securities then outstanding that
the Company file a registration statement under the Securities Act covering the
registration of at least 25% of the Registrable Securities then outstanding (or
a lesser percent if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $7,500,000) in the case of
an initial public offering or any amount of Registrable Securities if the
Company has already completed its initial public offering, then the Company
shall, within ten (10) calendar days of the receipt thereof, give written notice
of such request to all Holders and shall, subject to the limitations of
subsection 1.2(b), use its best efforts to effect as soon as practicable, and in
any event within 90 days of the receipt of such request, the registration under
the Securities Act of all Registrable Securities which the Holders request to be
registered within twenty (20) calendar days of the mailing of such notice by the
Company in accordance with Section 3.5; provided, however, that, notwithstanding
the foregoing, if the Holders request that the Company file a registration
statement pursuant to (ii) above at any time after six (6) months and prior to
twelve (12) months after the effective date of the Company's first registration
statement for a public offering of securities, the Company's obligation to file
such registration shall be subject in all respects to the consent of the
managing underwriter or underwriters of the Company's first public offering and
to any conditions to such registration that such managing underwriter(s) may
reasonably require.
(b) If the Holders initiating the registration
request hereunder ("Initiating Holders") intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 1.2
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). The underwriter will be selected by a majority in interest
of the Initiating Holders and shall be reasonably acceptable to the Company. In
such event, the right of
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any Holder to include its 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 (together with the
Company as provided in subsection 1.5(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 1.2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten (including
Registrable Securities), then the Initiating Holders shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Registrable Securities of the Company owned by each Holder (including the
Initiating Holders).
(c) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.2, a certificate signed by an 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, 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, however, that the Company may not utilize this
right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated
to effect, or to take any action to effect, any registration pursuant to this
Section 1.2:
(i) During the period starting with the date 90
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date 180 days after the effective date of a registration statement
for a Company initiated registration, including a registration subject to
Section 1.3 below; provided that the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to become effective,
and provided further that the Company delivers notice of its intent to file such
registration statement to the Initiating Holders within 30 days following the
registration request;
(ii) If the Initiating Holders propose to
dispose of shares of Registrable Securities that may be immediately registered
on Form S-3 pursuant to a request made pursuant to Section 1.4 below; or
(iii) after the Company has effected two (2)
registrations pursuant to this Section 1.2, and such registrations have been
declared or ordered effective.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock or other securities under the Securities Act in connection with the public
offering of such securities (other than the Company's initial
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public offering of Common Stock, and other than a registration relating solely
to the sale of securities to participants in a Company stock plan or a
transaction covered by Rule 145 under the Securities Act, a registration in
which the only stock being registered is Common Stock issuable upon conversion
of debt securities which are also being registered, or any registration on any
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) calendar days after mailing of such notice by
the Company in accordance with Section 3.5, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Securities Act all
of the Registrable Securities that each such Holder has requested to be
registered.
1.4 FORM S-3 REGISTRATION. In case the Company shall receive
from any Holder or Holders of Registrable Securities then outstanding 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, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such 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 15 days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.4: (i) if
Form S-3 is not available for such offering by the Holders; (ii) 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 (net of any
underwriters' discounts or commissions) of less than $1,000,000; (iii) 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 for a period of not more than 120
days after receipt of the request of the Holder or Holders under this Section
1.4; provided, however, that the Company shall not utilize this right more than
once in any twelve month period; or (iv) if the Company has already effected two
registrations on Form S-3 for the Holders pursuant to this Section 1.4 during
the six months prior to such request.
(c) Subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders. Registrations effected
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pursuant to this Section 1.4 shall not be counted as demands for registration or
registrations effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its 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 one hundred
eighty (180) days. The Company shall not be required to file, cause to become
effective or maintain the effectiveness of any registration statement that
contemplates a distribution of securities on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act.
(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 for up to one hundred eighty
(180) days.
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(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, such obligation to continue for one hundred eighty (180) days.
(g) Cause all such Registrable Securities registered
pursuant hereunder
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to be listed or included on each securities exchange or automated quotation
system on which similar securities issued by the Company are then listed or
included.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
(i) Use its best efforts to furnish, at the request
of any Holder requesting registration of Registrable Securities pursuant to this
Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, 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 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, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated 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,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities. The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.4 of this Agreement
if, as a result of the application of the preceding sentence, the number of
shares or the anticipated aggregate offering price of the Registrable Securities
to be included in the registration does not equal or exceed the number of shares
or the anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in subsection
1.2(a) or subsection l.4(b)(2), whichever is applicable.
1.7 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing 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
selected by them with the approval of the Company, which approval shall not be
unreasonably withheld, shall be borne by the Company; provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless the Holders of a majority of the Registrable
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Securities agree to forfeit their right to one demand registration pursuant to
Section 1.2; provided further, however, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the condition,
business, or prospects of the Company from that known to the Holders at the time
of their request and have withdrawn the request with reasonable promptness
following disclosure by the Company 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 Section 1.2.
(b) COMPANY REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable Securities pursuant to
Section 1.3 for each Holder (which right may be assigned as provided in Section
1.12), including (without limitation) all registration, filing, 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 Holder or Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company.
(c) REGISTRATION ON FORM S-3. All expenses incurred
in connection with a registration requested pursuant to Section 1.4, including
(without limitation) registration, filing, qualification, printers' and
accounting fees and the reasonable fees and disbursements of one counsel for the
selling Holder or Holders selected by them with the approval of the Company,
which approval shall not be unreasonably withheld, and counsel for the Company,
but excluding any underwriters' discounts or commissions associated with
Registrable Securities, shall be borne by the Company. Any underwriters'
discounts or commissions associated with Registrable Securities shall be borne
pro rata by the Holder or Holders participating in the Form S-3 Registration.
1.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock or other
securities, the Company shall not be required under Section 1.3 to include any
of the Holders' securities in such underwriting unless they accept the terms of
the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters), and
then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Company. If
the total amount of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders) but in no event shall (i) any shares
being sold by a stockholder exercising a demand registration right similar to
that granted in Section 1.2 be excluded from such offering if shares of a
stockholder
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not exercising a demand registration right similar to that granted in Section
1.2 are included in the offering, or (ii) the amount of securities of the
selling Holders included in the offering be reduced below 30% of the total
amount of securities included in such offering, unless such offering is an
initial public offering of the Company's Common Stock, in which case the selling
stockholders may be excluded if the underwriters make the determination
described above and all other securities that are not Registrable Securities are
first excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners and stockholders 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 the foregoing persons shall be deemed to be a single "selling
stockholder," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.9 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 1.
1.10 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless 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 "Exchange Act"), against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange 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 Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(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 to any Holder, underwriter or controlling person for any such loss,
claim, damage, liability, or action to the extent that it arises
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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 any such Holder, underwriter or controlling person.
(b) 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 has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, the Exchange 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 pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.10(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(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; provided, that in no event shall any indemnity
under this subsection 1.10(b) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.10 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 1.10,
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 indemnifying 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
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
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
1.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.10.
(d) If the indemnification provided for in this
Section 1.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss,
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liability, claim, damage or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations; provided, that in no event
shall any contribution by a Holder under this Subsection 1.10(d) exceed the net
proceeds from the offering received by such Holder, except in the case of
willful fraud by such Holder. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under
this Section 1.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC that may at
any time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective date of the first registration statement
filed by the Company for the offering of its securities to the general public so
long as the Company remains subject to the periodic reporting requirements under
Sections 13 or 15(d) of the Exchange Act;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the Exchange Act, as is
necessary to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as practicable after the
end of the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is declared
effective;
(c) file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any Holder, so long as the Holder owns
any Registrable
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13
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
after ninety (90) days after the effective date of the first registration
statement filed by the Company), the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.12 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder only to (a) a transferee or assignee acquiring not less
than 20% of the Registrable Securities then held by such holder, (b) a
transferee or assignee who is a partner or retired partner of a Holder that is a
partnership or a member of former member of a Holder that is a limited liability
company, or (c) a transferee or assignee who is a "family member" (defined for
purposes of this Section 1.12 as a spouse, ancestor, lineal descendant or
sibling) of such Holder or a trust, the sole beneficiaries of which are the
Holder and/or family members of such Holder (a "Permitted Transferee"), provided
that, the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such Permitted Transferee and the
securities with respect to which such registration rights are being assigned;
and provided, further, that such assignment shall be effective only if (A) the
Permitted Transferee agrees in writing to be bound by the obligations of a
Holder under this Agreement and (B) immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act. All shares beneficially owned by affiliated
entities or persons shall be aggregated together for purposes of determining
whether a transferee or assignee is a Permitted Transferee. As a condition of
such aggregation, holders of a majority of the shares of the aggregating persons
and entities shall designate in writing from time to time one representative for
all aggregating persons and entities, and the Company shall be entitled to
definitively rely upon the authority of such representative and any action or
omission of such representative in exercising or failing to exercise the rights
hereunder.
1.13 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, and except as provided in Section 3.2, the
Company shall not, without the prior written consent of the Holders of more than
60% of the outstanding Registrable Securities, enter into any agreement with any
holder or prospective holder of any securities of the Company which would allow
such holder or prospective holder (a) to include such securities in any
registration filed under Section 1.2 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will
not reduce the amount of the Registrable Securities of the Holders which is
included or (b) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in subsection 1.2(a) or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 1.2.
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14
1.14 "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees
that, during the period of duration (up to, but not exceeding, 180 days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the effective date of a registration statement of the
Company filed under the Securities Act, it shall not, to the extent requested by
the Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Company held by it at any
time during such period except Common Stock included in such registration;
provided, however, that:
(a) such agreement shall be applicable only to the
first such registration statement of the Company which covers Common Stock (or
other securities) to be sold on its behalf to the public in an underwritten
offering; and
(b) all officers and directors of the Company, all 3%
securityholders, and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in
this Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
1.15 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be
entitled to exercise any right provided for in this Section 1 after the earlier
of (i) five (5) years following the consummation of a Qualified IPO, or (ii)
such time as Rule 144 or another similar exemption under the Securities Act is
available for the sale of all of such Holder's shares during a three (3)-month
period without registration.
2. COVENANTS OF THE COMPANY.
2.1 DELIVERY OF FINANCIAL STATEMENTS. The Company shall
deliver to each Holder of at least 175,000 shares of Registrable Securities and
the Holder of any Series D or Series D-1 Preferred Stock:
(a) as soon as practicable, but in any event within
ninety (90) days after the end of each fiscal year of the Company, an income
statement for such fiscal year, a balance sheet of the Company and statement of
stockholder's equity as of the end of such year, and a statement of cash flows
for such year, such year-end financial reports to be in reasonable
-14-
15
detail, prepared in accordance with generally accepted accounting principles
("GAAP"), and audited and certified by an independent public accounting firm of
nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within
forty-five (45) days after the end of each of the first three (3) quarters of
each fiscal year of the Company, an unaudited profit or loss statement, a
statement of cash flows for such fiscal quarter and an unaudited balance sheet
as of the end of such fiscal quarter;
(c) within forty-five (45) days of the end of each
month, an unaudited income statement and a statement of cash flows and balance
sheet for and as of the end of such month, in reasonable detail and including a
comparison of actual results against plan; and
(d) as soon as practicable, but in any event thirty
(30) days prior to the end of each fiscal year, a budget and business plan for
the next fiscal year, prepared on a monthly basis, and, as soon as prepared, any
other budgets or revised budgets prepared by the Company.
2.2 INSPECTION. The Company shall permit each Holder of at
least 175,000 shares of Registrable Securities and the Holders of Series D and
Series D-1 Preferred Stock, at such Holder'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, all at such
reasonable times as may be requested by the Holder; provided however, that the
Company shall not be obligated pursuant to this Section 2.2 to provide access to
any information which it reasonably considers to be a trade secret or similar
confidential information.
2.3 RIGHT OF FIRST OFFER. Subject to the terms and conditions
specified in this Section 2.3, the Company hereby grants to each Holder (as
hereinafter defined) a right of first offer with respect to future sales by the
Company of its Shares (as hereinafter defined). A Holder who chooses to exercise
the right of first offer may designate as purchasers under such right itself or
its partners or affiliates in such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock ("Shares"), the Company shall first make an offering of such
Shares to each Holder in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Holder stating (i) its bona fide intention to offer such
Shares, (ii) the number of such Shares to be offered, and (iii) the price and
terms, if any, upon which it proposes to offer such Shares.
(b) Within 20 calendar days after delivery of the Notice, the
Holder may elect to purchase or obtain, at the price and on the terms specified
in the Notice, up to that portion of such Shares which equals the proportion
that the number of shares of Common Stock issued and held, or issuable upon
conversion and exercise of all convertible or exercisable securities then held,
by such Holder bears to the total number of shares of Common Stock then
outstanding (assuming full conversion and exercise of all convertible or
exercisable securities). The Company shall promptly, in writing, inform each
Holder that purchases all the shares available to
-15-
16
it (each, a "Fully-Exercising Investor") of any other Holder's failure to do
likewise. During the ten (10)-calendar-day period commencing after receipt of
such information, each Fully-Exercising Investor shall be entitled to obtain
that portion of the Shares for which Holders were entitled to subscribe but
which were not subscribed for by the Holders that is equal to the proportion
that the number of shares of Common Stock issued and held, or issuable upon
conversion and exercise of all convertible or exercisable securities then held,
by such Fully-Exercising Investor bears to the total number of shares of Common
Stock then outstanding (assuming full conversion and exercise of all convertible
or exercisable securities).
(c) The Company may, during the 90-day period following the
expiration of the period provided in subsection 2.3(b) hereof, offer the
remaining unsubscribed portion of the Shares to any person or persons at a price
not less than, and upon terms no more favorable to the offeree than those
specified in the Notice. If the Company does not enter into an agreement for the
sale of the Shares within such period, or if such agreement is not consummated
within 90 days of the execution thereof, the right provided hereunder shall be
deemed to be revived and such Shares shall not be offered unless first reoffered
to the Holders in accordance herewith.
(d) The right of first offer in this paragraph 2.3 shall not
be applicable (i) to the issuance or sale of Common Stock (or options therefor)
to employees, consultants and directors, pursuant to plans or agreements
approved by the Board of Directors for the primary purpose of soliciting or
retaining their services, (ii) to or after consummation of a firm commitment
underwritten initial public offering of the Company's securities, (iii) to the
issuance of securities pursuant to the conversion or exercise of convertible or
exercisable securities, (iv) to the issuance of securities in connection with a
bona fide business acquisition of or by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock or otherwise, (v) to
the issuance of additional shares of Series D or Series D-1 Preferred Stock
after the date hereof pursuant to the Purchase Agreement or (vi) to the issuance
of securities to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings, or similar transactions approved by
the Board of Directors.
2.4 TERMINATION OF COVENANTS.
(a) The covenants set forth in Sections 2.1 through Section
2.3 shall terminate as to each Holder and be of no further force or effect (i)
immediately prior to the consummation of a Qualified IPO, (ii) immediately prior
to the closing of the Company's sale of all or substantially all of its assets,
or (iii) immediately prior to the closing of the acquisition of the Company by
another entity by merger, consolidation or any other transaction or series of
related transactions in which more than fifty percent (50%) of the voting power
of the Company is transferred (excluding a merger effected exclusively for the
purpose of changing the domicile of the Company).
(b) The covenants set forth in Sections 2.1 and 2.2 shall
terminate as to each Holder and be of no further force or effect when the
Company first becomes subject to the periodic reporting requirements of Sections
13 or 15(d) of the Exchange Act, if this occurs earlier than the events
described in Section 2.4(a) above.
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17
3. MISCELLANEOUS.
3.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties (including transferees of any of the Series B, Series C, Series D
or Series D-1 Preferred Stock or any Common Stock issued upon conversion
thereof). Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
3.2 AMENDMENTS AND WAIVERS; AFTER-ACQUIRED SHARES. Any term of
this Agreement may be amended or waived only with the written consent of the
Company and the holders of more than 60% of the Registrable Securities then
outstanding, not including the Common Stock issuable upon exercise of the
PictureTel Warrant or upon exercise of the Bank Warrant; provided that if such
amendment has the effect of affecting (A) the Common Stock issuable upon
exercise of the PictureTel Warrant or upon exercise of the Bank Warrant (i) in a
manner different than securities issued to the Investors and (ii) in a manner
adverse to the interests of the holder of the PictureTel Warrant or the Bank
Warrant, then such amendment shall require the consent of PictureTel (or its
assignee) or Far East Bank (or its assignee); or (B) the rights of the Series D
or Series D-1 Preferred Stock under this Agreement (the "Series D Rights") in a
manner adverse to the Series D Rights, then such amendment shall require the
consent of the holders of the Series D and Series D-1 Preferred Stock.
Notwithstanding the foregoing, all of the provisions of this Agreement shall
apply to all shares of Series D and Series D-1 Preferred Stock (or shares of
Common Stock issuable upon conversion of such shares of Series D and Series D-1
Preferred Stock) which may be issued to or acquired by any Investor or any other
person or entity after the date hereof in accordance with the Purchase
Agreement. To the extent that additional shares of Series D and Series D-1
Preferred Stock are acquired after the date hereof in accordance with the
Purchase Agreement by any person or entity that is not then a party hereto, such
person or entity may, with the consent of the Company, become a party hereto by
executing and delivering to the Company a counterpart signature page to this
Agreement, and such person or entity shall thereafter be deemed an Investor and
Holder hereunder with respect to the shares purchased by such person or entity.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any Registrable Securities then outstanding, each
future holder of all such Registrable Securities, and the Company.
3.3 NOTICES. Unless otherwise provided, any notice required or
permitted by this Agreement shall be in writing and shall be deemed sufficient
upon delivery, when delivered personally or by overnight courier or sent by
telegram or fax, or forty-eight (48) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid, and addressed to
the party to be notified at such party's address or fax number as set forth on
the signature page on Exhibit A, Exhibit B and Exhibit C hereto or as
subsequently modified by written notice and one copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
Morse, Zelnick, Rose & Lander, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Fax # (▇▇▇) ▇▇▇-▇▇▇▇).
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18
3.4 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of laws.
3.6 COUNTERPARTS. This Agreement may be executed by facsimile
and in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
3.7 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.8 AGGREGATION OF STOCK. All shares of the Preferred Stock
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement. For purposes of this provision, and without limiting the foregoing,
(i) the holdings of MDS Life Sciences Technology Fund Limited Partnership, MDS
Life Sciences Technology Fund USA, L.P. and MDS Life Sciences Technology
Barbados Investment Trust collectively shall be aggregated together and (ii) the
holdings of Biotechnology Development Fund, L.P. and Biotechnology Development
Fund III, L.P. collectively shall be aggregated together.
[SIGNATURE PAGE FOLLOWS]
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The parties have executed this Amended and Restated Investors' Rights
Agreement as of the date first above written.
COMPANY: INVESTORS:
iPHYSICIAN NET INC. ______________________________
(Investor)
By: By:___________________________
Title: Title:________________________
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PICTURETEL CORPORATION:
By:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT A
SERIES B INVESTORS
NO. OF SERIES B CONVERTIBLE NOTE
NAME/ADDRESS PREFERRED SHARES WARRANTS
BIOTECHNOLOGY DEVELOPMENT FUND, L.P. 1,100,000 80,000
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BIOTECHNOLOGY DEVELOPMENT FUND III, L.P. 400,000 40,000
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
VERON INTERNATIONAL LTD. 1,500,000 120,000
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SENTRON MEDICAL, INC. 1,000,000 80,000
c/o Senmed Medical Ventures
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MDS LIFE SCIENCES TECHNOLOGY FUND LIMITED PARTNERSHIP 709,230 56,739
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
MDS LIFE SCIENCES TECHNOLOGY FUND USA, L.P. 167,690 13,145
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
MDS LIFE SCIENCES TECHNOLOGY BARBADOS INVESTMENT 123,080 9,848
TRUST
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
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EXHIBIT B
SERIES C INVESTORS
NO. OF SERIES C
NAME/ADDRESS PREFERRED SHARES
BIOTECHNOLOGY DEVELOPMENT FUND, L.P. 290,909
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BIOTECHNOLOGY DEVELOPMENT FUND II, L.P. 36,364
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BIOTECHNOLOGY DEVELOPMENT FUND III, L.P. 118,182
c/o BioAsia Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
VERON INTERNATIONAL LTD. 1,413,038
Chinachem Golden Plaza
77 ▇▇▇▇ Road, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
SENTRON MEDICAL, INC. 275,359
c/o Senmed Medical Ventures
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MDS LIFE SCIENCES TECHNOLOGY FUND LIMITED PARTNERSHIP 195,293
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
MDS LIFE SCIENCES TECHNOLOGY FUND USA, L.P. 46,175
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
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MDS LIFE SCIENCES TECHNOLOGY BARBADOS INVESTMENT TRUST 33,891
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ M9W 636
▇▇▇▇ ▇▇▇▇▇▇▇ 37,909
Downs View ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
HOFUNG HOLDINGS LIMITED 45,455
1801 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ 27,273
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
Hong Kong
FAR EAST CAPITAL CORPORATION 45,455
Silicon Valley ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL LIMITED 36,364
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ TECHNOLOGY PARTNERS, LP 90,909
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, M.D. 18,182
[address]
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EXHIBIT C
SERIES D AND SERIES D-1 INVESTORS
NO. OF SERIES D
NAME/ADDRESS PREFERRED SHARES
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PROFESSIONAL DETAILING, INC. 83,334
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NO. OF SERIES D-1
PREFERRED SHARES
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PROFESSIONAL DETAILING, INC. 107,143
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